GAMCU Golden Arrow Merger Corporation

 

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): August 13, 2024

 

 

Bolt Projects Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware		001-40223		86-1256660
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

2261 Market Street, Suite 5447 San Francisco, CA		94114
(Address of principal executive offices)		(Zip Code)

 

(415) 325-5912

(Registrant’s telephone number, including area code)

 

Golden Arrow Merger Corp.

10 E. 53rd Street, 13th Floor

New York, NY 10022

(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 $0.0001 per share		BSLK		The Nasdaq Stock Market LLC
Warrants, each whole warrant exercisable for one share of Common stock at an exercise price of $11.50		BSLKW		The Nasdaq Stock Market LLC

 

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

 

Unless the context otherwise requires, “we,” “us,” “our,” “Bolt” and the “Company” refer to Bolt Projects Holdings, Inc., a Delaware corporation (f/k/a Golden Arrow Merger Corp., a Delaware corporation), and its consolidated subsidiaries following the Closing (as defined below). Unless the context otherwise requires, references to “GAMC” refer to Golden Arrow Merger Corp., a Delaware corporation, prior to the Closing. All references herein to the “Board” refer to the board of directors of the Company.

 

Terms used in this Current Report on Form 8-K (this “Report”) but not defined herein, or for which definitions are not otherwise incorporated by reference herein, shall have the meaning given to such terms in the Proxy Statement/Prospectus (as defined below) in the section entitled “Frequently Used Terms” beginning on page 3 thereof, and such definitions are incorporated herein by reference.

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Business Combination

 

As disclosed under the sections entitled “The Business Combination Proposal” beginning on page 101 of the proxy statement/prospectus (the “Proxy Statement/Prospectus”) filed with the Securities and Exchange Commission (the “SEC”) by GAMC on July 18, 2024, GAMC entered into a business combination agreement (as amended, the “Business Combination Agreement”), dated October 4, 2023, with Beam Merger Sub, Inc., a Delaware corporation and a direct, wholly owned subsidiary of GAMC (“Merger Sub”), and Bolt Threads, Inc. (“Old Bolt”). Pursuant to the Business Combination Agreement, Merger Sub was merged with and into Old Bolt, with Old Bolt surviving the merger as a wholly owned subsidiary of the Company (the “Merger” and, together with the other transactions contemplated by the Business Combination Agreement, the “Business Combination”).

 

As previously reported on the Current Report on Form 8-K filed with the SEC on August 12, 2024, GAMC held a special meeting of stockholders on August 9, 2024 (the “Special Meeting”), at which the GAMC stockholders considered and adopted, among other matters, a proposal to approve the Business Combination, including (a) adopting the Business Combination Agreement and (b) approving the other transactions contemplated by the Business Combination Agreement and related agreements described in the Proxy Statement/Prospectus.

 

Pursuant to the terms and subject to the conditions set forth in the Business Combination Agreement, following the Special Meeting, on August 13, 2024 (the “Closing Date”), the Business Combination was consummated (the “Closing”).

 

Item 2.01 of this Report discusses the consummation of the Business Combination and the entry into agreements relating thereto and is incorporated herein by reference.

 

 

Amended and Restated Registration Rights Agreement

 

On August 13, 2024, in connection with the consummation of the Business Combination and as contemplated by the Business Combination Agreement, Bolt, the Sponsor, independent directors of GAMC and certain former stockholders of Old Bolt entered into the Amended and Restated Registration Rights and Lock-Up Agreement (the “Registration Rights and Lock-Up Agreement”). The material terms of the Registration Rights and Lock-Up Agreement are described in the section of the Proxy Statement/Prospectus beginning on page 130 titled “Certain Agreements Related to the Business Combination – Registration Rights and Lock-Up Agreement.” Such description is qualified in its entirety by the text of the Registration Rights and Lock-Up Agreement, which is included as Exhibit 10.7 to this Report and is incorporated herein by reference.

 

Item 2.01 Completion of Acquisition or Disposition of Assets.

 

As described above, on August 9, 2024, GAMC held the Special Meeting, at which the GAMC stockholders considered and adopted, among other matters, a proposal to approve the Business Combination Agreement and the Business Combination. On August 13, 2024, the parties consummated the Business Combination. In connection with the Closing, the Company changed its name from Golden Arrow Merger Corp. to Bolt Projects Holdings, Inc., filed an amended and restated certificate of incorporation (the “Certificate of Incorporation”) with the Secretary of State of the State of Delaware, and amended and restated its bylaws (the “Bylaws”). Copies of the Certificate of Incorporation and the Bylaws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.

 

The description of the Certificate of Incorporation and the general effect of the Certificate of Incorporation and the Bylaws upon the rights of holders of the Company’s capital stock are included in the Proxy Statement/Prospectus under the sections titled “Proposal No. 2 - The Charter Amendment Proposal,” “Proposal Nos. 3A-3G - The Governance Proposals” and “Description of the Post-Combination Company’s Securities” beginning on pages 141, 144 and 228 respectively, of the Proxy Statement/Prospectus, which are incorporated herein by reference.

 

Holders of 492,278 shares of GAMC Class A common stock sold in its initial public offering (the “Initial Shares”) properly exercised their right to have such shares redeemed for a full pro rata portion of the trust account holding the proceeds from GAMC’s initial public offering, calculated as of two business days prior to the consummation of the business combination, which was approximately $10.71 per share, or $5.3 million in the aggregate. The remaining balance in GAMC’s trust account of $0.9 million was released to the Company at the Closing.

 

As a result of the Business Combination, each outstanding share of Old Bolt capital stock was converted into the right to receive approximately 0.2949 shares of Bolt’s common stock, par value $0.0001 per share (“common stock”).

 

Additionally, the 140,000 outstanding shares of GAMC Class B common stock automatically converted to an equal number of shares of common stock.

 

Pursuant to subscription agreements entered into in connection with the Business Combination Agreement (collectively, the “Subscription Agreements”), certain investors purchased an aggregate of 464,801 newly-issued shares of common stock at a purchase price of $10.00 per share (the “PIPE Investment”). At the Closing, GAMC consummated the PIPE Investment.

 

After giving effect to the Business Combination, the redemption of Initial Shares as described above, the consummation of the PIPE Investment, and the additional issuances of common stock described under Item 3.02 of this Report, there were 31,660,231 shares of common stock, par value $0.0001 per share, issued and outstanding on August 13, 2024.

 

The common stock and warrants commenced trading on the Nasdaq Stock Market (“Nasdaq”) under the symbols “BSLK” and “BSLKW,” respectively, on August 14, 2024, subject to ongoing review of Bolt’s satisfaction of all listing criteria following the Business Combination.

 

 

FORM 10 INFORMATION

 

Item 2.01(f) of Form 8-K provides that if the predecessor registrant was a “shell company” (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as GAMC was immediately before the Business Combination, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. As a result of the consummation of the Business Combination, and as discussed below in Item 5.06 of this Report, the Company has ceased to be a shell company. Accordingly, the Company is providing the information below that would be included in a Form 10 if it were to file a Form 10. Please note that the information provided below relates to the combined company after the consummation of the Business Combination, unless otherwise specifically indicated or the context otherwise requires.

 

Cautionary Note Regarding Forward-Looking Statements

 

This Report includes statements that express Bolt’s opinions, expectations, beliefs, plans, objectives, assumptions or projections regarding future events or future results and therefore are, or may be deemed to be, “forward-looking statements.” These forward-looking statements can generally be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,” “may” or “should” or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this Report (including in information that is incorporated by reference into this Report or Exhibits 99.1-99.3 of this Report) and include statements regarding Bolt’s intentions, beliefs or current expectations concerning, among other things, the results of operations, financial condition, liquidity, prospects, growth, and strategies of Bolt and the markets in which Bolt operates. Such forward-looking statements are based on available current market material and management’s expectations, beliefs and forecasts concerning future events impacting Bolt. Factors that may impact such forward-looking statements include:

 

●

the ability to implement business plans, forecasts, and other expectations after the completion of the Business Combination, and identify and realize additional opportunities;

 

●

the risk of downturns and the possibility of rapid change in the highly competitive industry in which Bolt operates;

 

●

the risk that Bolt and its current and future collaborators are unable to successfully develop and commercialize Bolt’s products or services, or experience significant delays in doing so;

 

●

the risk that Bolt may never achieve or sustain profitability;

 

●

the risk that Bolt will need to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all;

 

●

the risk that Bolt experiences difficulties in managing its growth and expanding operations;

 

●

the risk that third-party suppliers and manufacturers are not able to fully and timely meet their obligations;

 

●

the risk of product liability or regulatory lawsuits or proceedings relating to Bolt’s products and services;

 

●

the risk that Bolt is unable to secure or protect its intellectual property;

 

●

the risk that Bolt will not be able to maintain the listing of its securities on Nasdaq;

 

●

the price of Bolt’s securities may be volatile due to a variety of factors, including changes in the competitive industries in which Bolt plans to operate, variations in performance across competitors, changes in laws and regulations affecting Bolt’s business and changes in the combined capital structure; and

 

●

other factors detailed under the section titled “Risk Factors” beginning on page 39 of the Proxy Statement/Prospectus and incorporated herein by reference.

 

 

The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the other documents filed by Bolt from time to time with the SEC. The forward-looking statements contained in this Report and in any document incorporated by reference are based on current expectations and beliefs concerning future developments and their potential effects on Bolt. There can be no assurance that future developments affecting Bolt will be those that Bolt has anticipated. Bolt undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

Business

 

Bolt’s business is described in the Proxy Statement/Prospectus in the section titled “Information About Bolt Threads” beginning on page 160, which is incorporated herein by reference.  

 

Risk Factors

 

The risks associated with Bolt’s business are described in the Proxy Statement/Prospectus in the section titled “Risk Factors” beginning on page 39 and are incorporated herein by reference. A summary of the risks associated with Bolt’s business is also included beginning on page 34 of the Proxy Statement/Prospectus under the heading “Summary Risk Factors” and are incorporated herein by reference.

 

Financial Information

 

The audited consolidated financial statements of Old Bolt as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 are included in the Proxy Statement/Prospectus beginning on pages F-54, which are incorporated herein by reference.

 

The unaudited condensed consolidated financial statements of Old Bolt as of June 30, 2024 and for the periods ended June 30, 2024 and 2023 are included as Exhibit 99.1 hereto and is incorporated herein by reference.

 

The unaudited pro forma condensed combined financial information of GAMC and Old Bolt as of and for the six months ended June 30, 2024 and for the year ended December 31, 2023 is set forth in Exhibit 99.2 hereto and is incorporated herein by reference.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Management’s discussion and analysis of the financial condition and results of operation of Old Bolt for the years ended December 31, 2023 and 2022 and the six months ended June 30, 2024 and 2023 are included in Exhibit 99.3 hereto and incorporated herein by reference.

 

Properties

 

The Company is remote-only and does not currently have a headquarters. Its workplace is described in the Proxy Statement/Prospectus in the section titled “Information About Bolt Threads – Employees and Human Capital Resources” on page 171 and that information is incorporated herein by reference.

 

 

Security Ownership of Certain Beneficial Owners and Management

 

The following table sets forth the beneficial ownership of common stock following the consummation of the Business Combination and related or concurrent transactions by:

 

●

each person who is known to be the beneficial owner of more than 5% of issued and outstanding shares of common stock;

 

●

each of Bolt’s current named executive officers and directors; and

 

●

all current executive officers and directors of Bolt as a group.

Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days. Unless otherwise indicated, Bolt believes that all persons named in the table below have sole voting and investment power with respect to the voting securities beneficially owned by them.

 

		Shares Beneficially Owned
Name and Address of Beneficial Owner(1)		Number				Percentage
5% Holders
Entities affiliated with Foundation Capital(2)			2,310,360				7.3	%
Anderson Investments Pte. Ltd.(3)			2,471,861				7.8	%
Scottish Mortgage Investment Trust PLC(4)			2,465,807				7.8	%
Formation8 Partners Fund I, L.P.(5)			1,655,988				5.2	%
Entities affiliates with Top Tier Capital Partners(6)			2,489,505				7.9	%
Ginkgo Bioworks, Inc.(7)			2,679,319				8.5	%
Golden Arrow Sponsor, LLC(8)			14,662,702				40.0	%
Directors and Named Executive Officers
Daniel Widmaier(9)			302,940				*
David Breslauer(10)			839,384				2.6	%
Randy Befumo(11)			110,862				*
Cintia Nardi(12)			176,356				*
Ransley Carpio			—				*
Jeri Finard			—				*
Sami Naffakh			—				*
Daniel Steefel			—				*
Steven Klosk			35,000				*
Esther van den Boom			—				*
Jerry Fiddler(13)			623,905				2.0	%
All directors and executive officers as a group (11 individuals)(14)			2,088,447				6.5	%

  

*	Less than one percent

 

(1)	Unless otherwise noted, the business address of each of those listed in the table above is 2261 Market Street, Suite 5447, San Francisco, CA 94114.

 

 

(2)

Consists of (i) 2,284,830 shares held of record by Foundation Capital VI, L.P. and (ii) 25,530 shares held of record by Foundation Capital VI Principals Fund, LLC. Foundation Capital Management Co. VI, LLC is the general partner of each of Foundation Capital VI, L.P. and Foundation Capital VI Principals Fund, LLC. William Elmore, Ashu Garg, Paul Holland, Charles Moldow, Mike Schuh, Steve Vassallo, and Warren Weiss are the managing members of Foundation Capital Management Co. VI, LLC and may be deemed to share voting and investment power over the shares held by Foundation Capital VI, L.P. and Foundation Capital VI Principals Fund, LLC. The address of each of these entities is 550 High Street, 3rd Floor, Palo Alto, CA 94301.

 

(3)

Anderson Investments Pte. Ltd. is a direct wholly owned subsidiary of Thomson Capital Pte. Ltd., which in turn is a direct wholly owned subsidiary of Tembusu Capital Pte. Ltd., which in turn is a direct wholly owned subsidiary of Temasek Holdings (Private) Limited and may be deemed to share voting and investment power over the shares held by Anderson Investments Pte. Ltd. The address of each of these entities is 60B Orchard Road, #06-18 Tower 2, The Atrium@Orchard, Singapore 238891.

 

(4)

All shares of common stock are held by Baillie Gifford & Co. and/or one or more of its investment adviser subsidiaries, which may include Baillie Gifford Overseas Limited, on behalf of investment advisory clients, which may include investment companies registered under the Investment Company Act, employee benefit plans, pension funds or other institutional clients. Securities representing more than 5% of the class are held on behalf of Scottish Mortgage Investment Trust PLC, a close-ended investment trust which is managed by Baillie Gifford & Co. Limited, a wholly owned subsidiary of Baillie Gifford & Co. The address for these stockholders is c/o Baillie Gifford & Co, Calton Square, 1 Greenside Row, Edinburgh, Scotland, UK EH1 3AN.

 

(5)

Formation8 GP, LLC has sole voting and dispositive power with regard to the shares held by Formation8 Fund I, L.P. The managing members of Formation8 GP, LLC, are James Kim, Brian Koo, and Joe Lonsdale. The managing members of Formation8 GP, LLC, disclaim beneficial ownership of the shares held by Formation8 Fund I, L.P., except to the extent of their pecuniary interests therein. The address for Formation8 Fund I, L.P. is 4962 El Camino Real, Suite 212, Los Altos, CA 94022.

 

(6)

Represents shares held by Top Tier Venture Capital VII Holdings, Top Tier Venture Velocity Fund, L.P., TTBSP, L.P. — Opportunity Series and TTCP Co-Invest Overage Fund IX, L.P. (the “TTCP Funds”). Top Tier Capital Partners, LLC is the ultimate Manager of each of the TTCP Funds and may be deemed to beneficially own the shares held directly by each of the TTCP Funds. Each of Jessica Archibald, Sean Engel, Eric Fitzgerald, Garth Timoll, Sr. and David York make investment decisions for Top Tier Capital Partners, LLC and may be deemed to beneficially own the shares held directly by each of the TTCP Funds. Each of them disclaims beneficial ownership of the reported securities except to the extent of their respective pecuniary interest therein. The address for the TTCP Funds is 600 Montgomery Street, Suite 480, San Francisco, CA 94111.

 

(7)	Consists of 2,679,319 shares of common stock held by Ginkgo Bioworks, Inc. (“Ginkgo Bioworks”), a wholly owned subsidiary of Ginkgo Bioworks Holdings, Inc. (“Ginkgo”). Shares held by Ginkgo Bioworks may be deemed beneficially owned by Ginkgo, its sole parent. The address for Ginkgo and Ginkgo Bioworks is 27 Drydock Avenue, 8th Floor, Boston, Massachusetts 02210.
(8)	Includes 5,000,000 shares of common stock issuable upon exercise of warrants that will be exercisable within 60 days of August 13, 2024. Golden Arrow Sponsor, LLC, the Sponsor, is the record holder of the securities reported herein. According to a Schedule 13G filed on February 14, 2022, the Sponsor is controlled by Messrs. Babich, Doft, Hirt and Rechtschaffen. Accordingly, Messrs. Babich, Doft, Hirt and Rechtschaffen share voting and dispositive power over the securities held by the Sponsor and may be deemed to beneficially own such shares.

 

(9)	Consists of 302,940 shares of common stock that are issuable upon exercise of options exercisable as of or within 60 days of August 13, 2024.

 

 

(10)	Consists of (i) 783,355 shares of common stock that are held by the David N. Breslauer Family Trust and (ii) 56,029 shares of common stock that are issuable upon exercise of options exercisable as of or within 60 days of August 13, 2024.
(11)	Consists of 110,862 shares of common stock underlying restricted stock units that will vest within 60 days of August 13, 2024.
(12)	Consists of 176,356 shares of common stock that will be issuable upon exercise of options exercisable as of or within 60 days of August 13, 2024.
(13)	Consists of (i) 62,461 shares of common stock held by JAZEM I Family Partners, LP, (ii) 495,459 shares of common stock held by Zygote Ventures LLC. Mr. Fiddley may be deemed to beneficially own the shares held directly by each of JAZEM I Family Partners, LP and Zygote Ventures LLC and (iii) 65,985 shares of common stock that will be issuable upon exercise of options exercisable as of or within 60 days of August 13, 2024.
(14)	Includes (i) 358,969 shares of common stock subject to options held by all executive officers and directors that are exercisable within 60 days of August 13, 2024, and (ii) 353,203 shares of common stock subject the vesting of restricted stock units within 60 days of August 13, 2024.

Directors and Executive Officers

 

Upon the consummation of the transactions contemplated by the Business Combination Agreement and documents related thereto, and in accordance with the terms of the Business Combination Agreement, each executive officer of GAMC ceased serving in such capacities, and each of Jacob Doft, Lance Hirt, Andrew Rechtschaffen, Brett Barth, Lloyd Dean and Jack D. Hidary ceased serving on GAMC’s board of directors.

 

Upon to the consummation of the transactions contemplated by the Business Combination Agreement and documents related thereto, and in accordance with the terms of the Business Combination Agreement, Ransley Carpio, Jeri Finard, Sami Naffakh, Daniel Steefel, Steven Klosk, Esther van den Boom and Jerry Fiddler were elected as directors of Bolt by the holders of Class B common stock of GAMC, to serve until the end of their respective terms and until their successors are elected and qualified. Esther van den Boom, Daniel Steefel and Steven Klosk were appointed to serve on Bolt’s audit committee with Ms. van den Boom serving as the chair and qualifying as an audit committee financial expert, as such term is defined in Item 407(d)(5) of Regulation S-K. Jerry Fiddler and Ransley Carpio were appointed to serve on Bolt’s compensation committee with Mr. Fiddler serving as the chair. Jeri Finard and Sami Naffakh were appointed to serve on Bolt’s nominating and Corporate Governance Committee with Ms. Finard serving as the chair.

 

Daniel Widmaier was appointed as Bolt’s Chief Executive Officer and principal executive officer, Randy Befumo was appointed as Bolt’s Interim Chief Financial Officer and principal financial officer and principal accounting officer, Cintia Nardi was appointed as Bolt’s President, David Breslauer was appointed as Bolt’s Chief Technology Officer, and Paul Slattery was appointed as Bolt’s General Counsel and Secretary.

 

Additional information regarding Bolt’s directors and executive officers after the consummation of the Business Combination is included in the Proxy Statement/Prospectus in the section titled “Management of the Post-Combination Company Following the Business Combination” beginning on page 222 and that information is incorporated herein by reference.

 

Additionally, interlocks and insider participation information regarding Bolt’s executive officers is described in the Proxy Statement/Prospectus in the section titled “Management of Post-Combination Company Following the Business Combination – Compensation Committee Interlocks and Insider Participation” beginning on page 227 and that information is incorporated herein by reference.

 

 

Director Independence

 

The independence of each director of Bolt is described in the Proxy Statement/Prospectus in the section titled “Management of Post-Combination Company Following the Business Combination – Director Independence” on page 225 and is incorporated herein by reference.

 

Director Compensation

 

The compensation of Old Bolt’s directors is described in the Proxy Statement/Prospectus in the section titled “Bolt Threads’ Executive and Director Compensation” beginning on page 172 and that information is incorporated herein by reference.

 

Executive Compensation

 

The executive compensation of Old Bolt’s executive officers is described in the Proxy Statement/Prospectus in the section titled “Bolt Threads’ Executive and Director Compensation” beginning on page 172 and that information is incorporated herein by reference.

 

Certain Relationships and Related Transactions

 

Certain relationships and related party transactions of Bolt are described in the Proxy Statement/Prospectus in the section titled “Certain Relationships and Related Party Transactions” beginning on page 217 and that information is incorporated herein by reference.

 

Additionally, in connection with the Business Combination, Ginkgo Bioworks, Inc. (“Ginkgo”) holds over 5% of the shares of outstanding common stock. In October 2022, Old Bolt and Ginkgo executed several concurrent agreements including a Senior Secured Note Purchase Agreement (the “Ginkgo Note Purchase Agreement”) and a 2022 Technical Development Agreement (“2022 TDA”).

 

On December 29, 2023, Old Bolt entered into an amendment (the “Ginkgo Note Purchase Agreement Amendment No. 1”) to the Ginkgo Note Purchase Agreement to modify its outstanding senior secured notes (the “Senior Secured Notes”) held by Ginkgo. Under the terms of the modification, the $30.0 million outstanding in Senior Secured Notes was converted into (i) $10.0 million of outstanding principal was exchanged for a convertible note with the same terms as the convertible notes issued pursuant to the Note Purchase Agreement entered into by the PIPE Subscribers (ii) $11.8 million of Senior Secured Notes, (iii) a nonexclusive right to license certain of Bolt’s intellectual property, and (iv) a reduction of Old Bolt’s outstanding prepaid balance under the 2022 Technical Development Agreement by $5.4 million. As of June 30, 2024, the prepaid balance remaining under the 2022 Technical Development Agreement was $3.9 million.

 

The interest rate of the remaining Senior Secured Notes was amended, from the existing rate of treasury rate plus 6.00% per annum, to 12.00% per annum, and the maturity date of the remaining Senior Secured Notes was extended, from the existing maturity date of October 14, 2024, to December 31, 2027. As of June 30, 2024, $12.5 million of Senior Secured Notes was outstanding and the effective interest rate was 8.1%.

 

In April 2024, Old Bolt entered into a second amendment to the Ginkgo Note Purchase Agreement (the “Ginkgo Note Purchase Agreement Amendment No. 2”). Pursuant to the second amendment, the interest from the Ginkgo NPA Amendment effective date until the occurrence of the SPAC transaction was paid in kind by capitalizing and adding such accrued interest to the principal of the Amended Senior Notes at our option. In addition, upon the occurrence of the SPAC transaction, Bolt prepaid an aggregate principal amount of the Amended Senior Notes equal to $0.5 million.

 

Legal Proceedings

 

Reference is made to the disclosure regarding legal proceedings in the section of the Proxy Statement/Prospectus titled “Information About Bolt Threads – Legal Proceedings” beginning on page 171, which is incorporated herein by reference.

 

 

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

 

Shares of common stock and Bolt’s warrants commenced trading on the Nasdaq under the symbols “BSLK” and “BSLKW,” respectively, on August 14, 2024, in lieu of the Class A common stock, warrants and units of GAMC. Bolt has not paid any cash dividends on its shares of common stock to date. It is the present intention of the Board to retain all earnings, if any, for use in Bolt’s business operations and, accordingly, Bolt’s board does not anticipate declaring any dividends in the foreseeable future. The payment of cash dividends in the future will be dependent upon Bolt’s revenues and earnings, if any, capital requirements and general financial condition, as well as contractual restrictions such as those in the Ginkgo Note Purchase Agreement. The payment of any cash dividends is within the discretion of the Board. Further, the ability of Bolt to declare dividends may be limited by the terms of financing or other agreements entered into by it or its subsidiaries from time to time.

 

Information respecting GAMC’s Class A common stock, warrants and units and related stockholder matters are described in the Proxy Statement/Prospectus in the section titled “Market Price and Dividend Information” on page 255 and such information is incorporated herein by reference.

 

Description of Registrant’s Securities

 

The description of Bolt’s securities is contained in the Proxy Statement/Prospectus in the section titled “Description of the Post-Combination Company’s Securities” beginning on page 228 and is incorporated herein by reference.

 

Indemnification of Directors and Officers

 

The indemnification of Bolt’s directors and officers is set forth in the Proxy Statement/Prospectus in the section titled “Description of the Post-Combination Company’s Securities – Limitations on Liability and Indemnification of Officers and Directors” beginning on page 230 and is incorporated herein by reference.

 

Item 3.02. Unregistered Sales of Equity Securities.

 

At the Closing, GAMC consummated the PIPE Investment. The disclosure under Item 2.01 of this Report relating to the PIPE Investment is incorporated into this Item 3.02 by reference.

 

Bolt issued the foregoing securities under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), as a transaction not requiring registration under Section 5 of the Securities Act. The parties receiving the securities represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution, and appropriate restrictive legends were affixed to the certificates representing the securities (or reflected in restricted book entry with Bolt’s transfer agent). The parties also had adequate access, through business or other relationships, to information about Bolt.

 

At Closing, Bolt issued 600,000 shares of common stock to a former landlord and 150,000 shares of common stock to a former supplier in connection with settlement agreements as set forth in the Proxy Statement/Prospectus in the section titled “Bolt Threads Management’s Discussion and Analysis of Financial Condition and Results of Operations —Critical Accounting Policies and Estimates – Share-based Termination Liability” beginning on page 194 and is incorporated herein by reference.

 

Item 4.01. Changes in Registrant’s Certifying Accountant.

 

For accounting purposes, the Business Combination is the equivalent of Old Bolt issuing stock for the net assets of GAMC, accompanied by a recapitalization and thus is treated as a reverse recapitalization in accordance with GAAP. The net assets of GAMC will be stated at historical cost, with no goodwill or other intangible assets recorded.

 

(a) Dismissal of independent registered public accounting firm.

 

On August 13, 2024, the Audit Committee of the Board dismissed WithumSmith+Brown, PC (“Withum”), GAMC’s independent registered public accounting firm prior to the Business Combination, as the Company’s independent registered public accounting firm.

 

 

The report of Withum on GAMC’s, the Company’s legal predecessor, balance sheet as of December 31, 2023 and 2022 and the statements of operations, changes in stockholders’ deficit and cash flows for the years then ended, did not contain an adverse opinion or a disclaimer of opinion, and were not qualified or modified as to uncertainties, audit scope or accounting principles, except that such audit report contained an explanatory paragraph in which Withum expressed substantial doubt as to GAMC’s ability to continue as a going concern if i was unable to raise additional funds to alleviate liquidity needs and complete a business combination.

 

During the period through June 30, 2024, there were no disagreements between the Company and Withum on any matter of accounting principles or practices, financial disclosure or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of Withum, would have caused it to make reference to the subject matter of the disagreements in its reports on GAMC’s financial statements for such period.

 

During the period through June 30, 2024, there were no “reportable events” (as defined in Item 304(a)(1)(v) of Regulation S-K under the Exchange Act), except for the material weaknesses disclosed under the heading “Item 9A. Controls and Procedures—Evaluation of Controls and Procedures” in GAMC’s Annual Report on Form 10-K/A for the year ended December 31, 2023, as filed with the SEC on April 23, 2024.

 

The Company has provided Withum with a copy of the foregoing disclosures and has requested that Withum furnish the Company with a letter addressed to the SEC stating whether it agrees with the statements made by the Company set forth above. A copy of Withum’s letter, dated August 19, 2024, is filed as Exhibit 16.1 to this Report.

 

(b) Disclosures regarding the new independent auditor.

 

On August 13, 2024, the Audit Committee of the Board approved the engagement of Elliott Davis, PLLC (“Elliott Davis”) as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements for the year ending December 31, 2024. Elliott Davis served as independent registered public accounting firm of Old Bolt prior to the Business Combination. During the period through June 30, 2024, neither the Company nor anyone on the Company’s behalf consulted with Elliott Davis with respect to (i) the application of accounting principles to a specified transaction, either completed or proposed, the type of audit opinion that might be rendered on the Company financial statements, and neither a written report nor oral advice was provided to the Company that Elliott Davis concluded was an important factor considered by us in reaching a decision as to any accounting, auditing or financial reporting issue, or (ii) any other matter that was the subject of a disagreement or a reportable event (each as defined above).

 

Item 5.01. Changes in Control of Registrant.

 

The information set forth above under Item 1.01 and Item 2.01 of this Report is incorporated herein by reference.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;

 

Compensatory Arrangements of Certain Officers.

 

The information set forth in the sections titled “Directors and Executive Officers”, “Executive Compensation”, “Director Compensation” and “Certain Relationships and Related Transactions” in Item 2.01 of this Report is incorporated herein by reference.

 

2024 Equity Incentive Plan

 

At the Special Meeting, the GAMC stockholders approved the Bolt Projects Holdings, Inc. 2024 Incentive Award Plan (the “2024 Incentive Plan”). The 2024 Incentive Plan was previously approved, subject to stockholder approval, by GAMC’s board of directors . The Incentive Award Plan became effective immediately upon the Closing. A total of 7,184,418 shares of Bolt Threads common stock were reserved under the Incentive Award Plan.

 

A summary of the terms of the 2024 Incentive Plan is set forth in the Proxy Statement/Prospectus in the section titled “Proposal No. 5 – The Incentive Plan Proposal” beginning on page 147 of the Proxy Statement/Prospectus, which is incorporated herein by reference. Such summary and the foregoing description are qualified in their entirety by reference to the text of the 2024 Incentive Plan, a copy of which is attached hereto as Exhibit 10.18 and incorporated herein by reference.

 

 

2024 Employee Stock Purchase Plan

 

At the Special Meeting, the GAMC stockholders considered and approved the Bolt Projects Holdings, Inc. 2024 Employee Stock Purchase Plan (the “ESPP”). The ESPP was previously approved, subject to stockholder approval, by GAMC’s board of directors . The ESPP became effective immediately upon the Closing. A total of 957,922 shares of Bolt Threads common stock were reserved under the ESPP.

 

A summary of the terms of the ESPP is set forth in the Proxy Statement/Prospectus in the section titled “Proposal No. 6 – The ESPP Proposal” beginning on page 152 of the Proxy Statement/Prospectus, which is incorporated herein by reference. Such summary and the foregoing description are qualified in their entirety by reference to the text of the ESPP, a copy of which is attached hereto as Exhibit 10.19 and incorporated herein by reference.

 

Item 5.05. Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

 

In connection with the Business Combination, on August 13, 2024, Bolt’s board of directors approved and adopted a new Code of Business Conduct and Ethics applicable to all employees, officers and directors of Bolt. The above description of the Code of Business Conduct and Ethics does not purport to be complete and is qualified in its entirety by reference to the full text of the Code of Business Conduct and Ethics, a copy of which is filed as Exhibit 14.1 hereto and incorporated herein by reference. A copy of the Code of Business Conduct and Ethics can also be found at https://boltthreads.com/investors under the link “Code of Business Conduct.”

 

Item 5.06. Change in Shell Company Status.

 

As a result of the Business Combination, the Company ceased being a shell company. Reference is made to the disclosure in the Proxy Statement/Prospectus in the section titled “Proposal No. 1 – The Business Combination Proposal” beginning on page 101, which is incorporated herein by reference. Further, the information set forth in the Introductory Note and under Item 2.01 of this Report is incorporated herein by reference.

 

Item 8.01. Other Events.

 

As a result of the Business Combination, Bolt became the successor issuer to GAMC. Pursuant to Rule 12g-3(a) under the Exchange Act, Bolt’s common stock and warrants are deemed registered under Section 12(b) of the Exchange Act.

 

Item 9.01. Financial Statements and Exhibits.

 

(a) Financial statements of businesses acquired.

 

The audited consolidated financial statements of Old Bolt as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 are included in the Proxy Statement/Prospectus beginning on pages F-54, of the Proxy Statement/Prospectus, which are incorporated herein by reference.

 

The unaudited condensed consolidated financial statements of Old Bolt as of June 30, 2024 and for the periods ended June 30, 2024 and 2023 are included as Exhibit 99.1 hereto and is incorporated herein by reference.

 

(b) Pro forma financial information.

 

The unaudited pro forma condensed combined financial information of GAMC and Old Bolt as of and for the six months ended June 30, 2024 and for the year ended December 31, 2023 is set forth in Exhibit 99.2 hereto and is incorporated herein by reference.

 

 

(d) Exhibits.

 

				Incorporated by Reference
Exhibit Number		Exhibit Description		Form		File No.		Exhibit		Filing Date		Filed Herewith
2.1+		Business Combination Agreement, dated as of October 4, 2023, by and among the Registrant, Beam Merger Sub, Inc. and Bolt Threads, Inc.		S-4/A		333-276849		2.1		7/10/2024
2.1(a)+		Amendment No. 1 to the Business Combination Agreement, dated as of June 10, 2024, by and among the Registrant, Beam Merger Sub, Inc. and Bolt Threads, Inc.		8-K		001-40223		2.1		6/13/2024
3.1		Second Amended and Restated Certificate of Incorporation, dated as of August 13, 2024.										X
3.2		Amended and Restated Bylaws, dated as of August 13, 2024.										X
4.1		Specimen Unit Certificate.		S-1/A		333-253465		4.1		3/5/2021
4.2		Specimen Class A Common Stock Certificate.		S-1/A		333-253465		4.2		3/5/2021
4.3		Specimen Warrant Certificate.		S-1/A		333-253465		4.3		3/5/2021
4.4		Warrant Agreement between the Registrant and Continental Stock Transfer & Trust Company, dated as of March 16, 2021.		8-K		001-40223		4.1		3/22/2021
10.1		Form of PIPE Subscription Agreement.		S-4/A		333-276849		10.1		7/10/2024
10.2		Form of Amendment to PIPE Subscription Agreement.		10-K		001-40223		10.17		3/15/2024
10.3		Form of Amendment No. 2 to PIPE Subscription Agreement.		8-K		001-40223		10.2		6/13/2024
10.4		Sponsor Support Agreement, dated as of October 4, 2023, by and among Golden Arrow Sponsor, LLC, the Registrant and Bolt Threads, Inc.		S-4/A		333-276849		10.2		7/10/2024
10.5		Amendment No. 1 to the Sponsor Support Agreement, dated as of June 10, 2024, by and among Golden Arrow Sponsor, LLC, the Registrant and Bolt Threads, Inc.		8-K		001-40223		10.1		6/13/2024

 

 

10.6		Stockholder Support Agreement, dated as of October 4, 2023, by and among the Registrant, Bolt Threads, Inc. and certain other stockholder parties thereto.		S-4/A		333-276849		10.3		7/10/2024
10.7		Amended and Restated Registration Rights and Lock-Up Agreement, dated as of August 13, 2024, by and between the Registrant and each of the executive officers and directors of the Registrant.										X
10.8		Letter Agreement among the Registrant, Golden Arrow Sponsor, LLC, and each of the officers and directors of the Registrant, dated as of March 16, 2021.		8-K		001-40223		10.1		3/22/2021
10.9		Investment Management Trust Agreement between the Registrant and Continental Stock Transfer & Trust Company, dated as of March 16, 2021.		8-K		001-40223		10.2		3/22/2021
10.10		Amendment to Investment Management Trust Agreement between the Registrant and Continental Stock Transfer & Trust Company, dated as of March 15, 2023.		8-K		001-40223		10.1		3/22/2023
10.11		Amended and Restated Promissory Note, dated as of March 18, 2022, issued to Golden Arrow Sponsor, LLC.		10-K		001-40223		10.8		3/31/2022
10.12		Promissory Note, dated as of February 25, 2022, issued to Golden Arrow Sponsor, LLC.		10-K		001-40223		10.9		3/31/2022
10.13		Promissory Note, dated as of August 26, 2022, issued to Golden Arrow Sponsor, LLC.		8-K		001-40223		10.1		9/1/2022
10.14		Promissory Note, dated as of March 8, 2023, issued to Golden Arrow Sponsor, LLC.		8-K		001-40223		10.1		3/10/2023
10.15		Promissory Note, dated as of March 17, 2023, issued to Golden Arrow Sponsor, LLC.		8-K		001-40223		10.2		3/22/2023

 

 

10.16		Promissory Note, dated as of December 18, 2023, issued to Golden Arrow Sponsor, LLC.		8-K		001-40223		10.1		12/18/2023
10.17		Promissory Note, dated as of April 3, 2024, issued to Golden Arrow Sponsor, LLC.		8-K		001-40223		10.1		4/5/2024
10.18#		Bolt Projects Holdings, Inc. 2024 Incentive Award Plan.										X
10.19#		Bolt Projects Holdings, Inc. 2024 Employee Stock Purchase Plan.										X
10.20#		Consulting Agreement, dated as of April 23, 2023, by and between Bolt Threads, Inc. and Randy Befumo.		S-4/A		333-276849		10.19		7/10/2024
10.21		Amendment No. 1 to Senior Secured Note Purchase Agreement, dated as of December 29, 2023, by and between Bolt Threads, Inc. and Ginkgo Bioworks, Inc.		S-4/A		333-276849		10.20		7/10/2024
10.22		Amendment No. 2 to Senior Secured Note Purchase Agreement, dated as of April 3, 2024, by and between Bolt Threads, Inc. and Ginkgo Bioworks, Inc.		S-4/A		333-276849		10.21		7/10/2024
10.23		Amended and Restated Note, dated as of December 29, 2023, by and between Bolt Threads, Inc. and Ginkgo Bioworks, Inc.		S-4/A		333-276849		10.22		7/10/2024
10.24		Convertible Note, dated as of December 29, 2023, by and between Bolt Threads, Inc. and Ginkgo Bioworks, Inc.		S-4/A		333-276849		10.23		7/10/2024
10.25		Service Agreement, dated as of August 12, 2023, by and between Bolt Threads, Inc. and Laurus Bio Private Limited.		S-4/A		333-276849		10.24		7/10/2024
10.26#		Amendment to Consulting Agreement, dated as of April 11, 2024, by and between Bolt Threads, Inc. and Randy Befumo.		S-4/A		333-276849		10.25		7/10/2024
10.27		Supply and License Agreement, dated as of August 1, 2021, by and between Bolt Threads, Inc. and Vegamour, Inc.

 

 

10.27(a)

Amendment No. 1 to Supply and License Agreement, dated as of August 19, 2022, by and between Bolt Threads, Inc. and Vegamour, Inc.

S-4/A

333-276849

10.26(a)

7/10/2024

10.27(b)

Amendment No. 2 to Supply and License Agreement, dated as of April 18, 2023, by and between Bolt Threads, Inc. and Vegamour, Inc.

S-4/A

333-276849

10.26(b)

7/10/2024

10.28

Amendment No. 3 to Senior Secured Note Purchase Agreement, dated as of May 31, 2024, by and between Bolt Threads, Inc. and Ginkgo Bioworks, Inc.

S-4/A

333-276849

10.27

7/10/2024

10.29

Form of Director and Officer Indemnification Agreement.

S-4/A

333-276849

10.27

7/10/2024

14.1

Code of Business Conduct and Ethics.

X

16.1

Letter from WithumSmith+Brown, PC to the Securities and Exchange Commission.

X

21.1

List of Subsidiaries.

X

99.1

Unaudited condensed consolidated financial statements of Bolt Threads, Inc. as of June 30, 2024 and for the periods ended June 30, 2024 and 2023.

X

99.2

Unaudited pro forma condensed combined financial information of Golden Arrow Merger Corp. and Bolt Threads, Inc. as of and for the six months ended June 30, 2024 and for the year ended December 31, 2023.

X

99.3

Management’s Discussion and Analysis of Financial Condition and Results of Operations.

X

104

Cover Page Interactive Data File (embedded within the Inline XBRL document)

X

 

+	Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.

 

#	Indicates management contract or compensatory plan.

 

 

SIGNATURE

 

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.

 

	BOLT PROJECTS HOLDINGS, INC.
Date: August 19, 2024	By:	/s/ Daniel Widmaier
	Name:	Daniel Widmaier
	Title:	Chief Executive Officer

 

 

16

 

exhibit 3.1

 

Second AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

 

GOLDEN ARROW MERGER CORP.

 

Golden Arrow Merger Corp. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify as follows:

 

1. The present name of the Corporation is Golden Arrow Merger Corp. The Corporation was incorporated under the name Golden Arrow Merger Corp. by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on December 31, 2020 (the “Original Certificate”).

 

2. An Amended and Restated Certificate of Incorporation, which amended and restated the Original Certificate in its entirety, was filed with the Secretary of State of the State of Delaware on March 16, 2021 (as amended, the “Existing Certificate”).

 

3. This Second Amended and Restated Certificate of Incorporation (the “Second Amended and Restated Certificate”), which amends and restates the Existing Certificate in its entirety, has been approved by the Board of Directors of the Corporation (the “Board of Directors”) in accordance with Sections 242 and 245 of the DGCL and has been adopted by the stockholders of the Corporation at a meeting of the stockholders of the Corporation in accordance with the provisions of Section 211 of the DGCL.

 

4. The Existing Certificate is hereby amended and restated by this Second Amended and Restated Certificate to read in its entirety as set forth in EXHIBIT A attached hereto.

 

5. This Second Amended and Restated Certificate shall become immediately effective upon its filing with the Secretary of State of the State of Delaware.

 

6. IN WITNESS WHEREOF, Golden Arrow Merger Corp. has caused this Second Amended and Restated Certificate to be signed by a duly authorized officer of the Corporation, on August 13, 2024.

 

 

	GOLDEN ARROW MERGER CORP.
	By:	/s/ Timothy Babich
	Name:	Timothy Babich
	Title:	Chief Executive Officer

 

 

EXHIBIT A

 

ARTICLE I
NAME

 

The name of the corporation is Bolt Projects Holdings, Inc. (the “Corporation”).

 

ARTICLE II
REGISTERED OFFICE AND AGENT

 

The address of the Corporation’s registered office in the State of Delaware is 3500 South Dupont Highway, in the City of Dover, County of Kent, State of Delaware, 19901, and the name of its registered agent at such address is Incorporating Services, Ltd.

 

ARTICLE III
PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as it now exists or may hereafter be amended and supplemented (the “DGCL”).

 

ARTICLE IV
CAPITAL STOCK

 

The Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 550,000,000. The total number of shares of Common Stock that the Corporation is authorized to issue is 500,000,000, having a par value of $0.0001 per share, and the total number of shares of Preferred Stock that the Corporation is authorized to issue is 50,000,000, having a par value of $0.0001 per share. Immediately upon the filing and effectiveness of this Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Effective Time”), automatically and without further action on the part of holders of capital stock of the Corporation, each share of Class A Common Stock, par value $0.0001 per share, of the Corporation and each share of Class B Common Stock, par value $0.0001 per share, of the Corporation outstanding or held by the Corporation as treasury stock as of immediately prior to the Effective Time (collectively, the “Old Common Stock”) shall be reclassified as, and converted into, one (1) validly issued, fully paid and non-assessable share of Common Stock (such reclassifications and conversions, together, the “Reclassification”). The Reclassification shall occur automatically as of the Effective Time without any further action by the Corporation or the holders of the shares affected thereby and whether or not any certificates representing such shares are surrendered to the Corporation. Upon the Effective Time, each certificate that as of immediately prior to the Effective Time represented shares of Old Common Stock shall be deemed to represent an equivalent number of shares of Common Stock. The Reclassification shall also apply to any outstanding securities or rights convertible into, or exchangeable or exercisable for, Old Common Stock of the Corporation and all references to the Old Common Stock in agreements, arrangements, documents and plans relating thereto or any option or right to purchase or acquire shares of Old Common Stock shall be deemed to be references to the Common Stock or options or rights to purchase or acquire shares of Common Stock, as the case may be.

 

 

The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board of Directors of the Corporation (the “Board of Directors”). The Board of Directors is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.

 

The designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation are as follows:

 

A.

COMMON STOCK.

 

1. General.The voting, dividend, liquidation, and other rights and powers of the Common Stock are subject to and qualified by the rights, powers and preferences of any series of Preferred Stock as may be designated by the Board and outstanding from time to time.

 

2. Voting.

 

a.

Except as otherwise provided herein (including any Certificate of Designation) or otherwise required by applicable law, the holders of the shares of Common Stock shall exclusively possess all voting power with respect to the Corporation.

 

b.

Except as otherwise provided herein or expressly required by applicable law, each holder of Common Stock, as such, shall be entitled to vote on each matter submitted to a vote of stockholders and shall be entitled to one (1) vote for each share of Common Stock held of record by such holder as of the record date for determining stockholders entitled to vote on such matter.

 

c.

Except as otherwise provided herein (including any Certificate of Designation) or otherwise required by applicable law, at any annual or special meeting of the stockholders of the Corporation, holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders.

 

d.

Except as otherwise required by applicable law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate (including any Certificate of Designation (as defined below)) that relates solely to the rights, powers, preferences (or the qualifications, limitations or restrictions thereof) or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Second Amended and Restated Certificate (including any Certificate of Designation) or pursuant to the DGCL.

 

 

Subject to the rights of any holders of any outstanding series of Preferred Stock, the number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

3. Dividends. Subject to applicable law and the rights and preferences of any holders of any outstanding series of Preferred Stock, the holders of Common Stock, as such, shall be entitled to the payment of dividends on the Common Stock when, as and if declared by the Board of Directors in accordance with applicable law.

 

4. Liquidation. Subject to the rights and preferences of any holders of any shares of any outstanding series of Preferred Stock, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the funds and assets of the Corporation that may be legally distributed to the Corporation’s stockholders shall be distributed among the holders of the then outstanding Common Stock pro rata in accordance with the number of shares of Common Stock held by each such holder.

 

B.

PREFERRED STOCK

 

Shares of Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed herein and in the resolution or resolutions providing for the creation and issuance of such series adopted by the Board of Directors as hereinafter provided.

 

Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing a certificate of designation relating thereto in accordance with the DGCL (a “Certificate of Designation”), to determine and fix the number of shares of such series and such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, and to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolution or resolutions providing for the creation and issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the fullest extent permitted by applicable law and this Second Amended and Restated Certificate (including any Certificate of Designation). Except as otherwise required by law, holders of any series of Preferred Stock shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Second Amended and Restated Certificate (including any Certificate of Designation).

 

 

The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

ARTICLE V
BOARD OF DIRECTORS

 

For the management of the business and for the conduct of the affairs of the Corporation it is further provided that:

 

A. Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the directors of the Corporation shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible and designated as Class I, Class II and Class III. The initial Class I directors shall serve for a term expiring at the first annual meeting of the stockholders following the date of this Second Amended and Restated Certificate; the initial Class II directors shall serve for a term expiring at the second annual meeting of the stockholders following the date of this Second Amended and Restated Certificate; and the initial Class III directors shall serve for a term expiring at the third annual meeting following the date of this Second Amended and Restated Certificate. At each annual meeting of the stockholders of the Corporation beginning with the first annual meeting of the stockholders following the date of this Second Amended and Restated Certificate, subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of the stockholders held in the third year following the year of their election. Each director shall hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director. The Board of Directors is authorized to assign members of the Board of Directors already in office to Class I, Class II and Class III.

 

B. Except as otherwise expressly provided by the DGCL or this Second Amended and Restated Certificate, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors that shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time by the Board of Directors.

 

C. Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled to vote at an election of directors.

 

D. Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors and except as otherwise provided by applicable law, any vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other than any directors elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office until the expiration of the term of the class to which such director shall have been appointed or until his or her earlier death, resignation, retirement, disqualification, or removal.

 

 

E. Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Second Amended and Restated Certificate (including any Certificate of Designation). Notwithstanding anything to the contrary in this Article V, the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to paragraph B of this Article V, and the total number of directors constituting the whole Board of Directors shall be automatically adjusted accordingly. Except as otherwise provided in the Certificate of Designation(s) in respect of one or more series of Preferred Stock, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such Certificate of Designation(s), the terms of office of all such additional directors elected by the holders of such series of Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.

 

F. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Amended and Restated Bylaws of the Corporation (as amended and/or restated from time to time, the “Bylaws”). In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Second Amended and Restated Certificate (including any Certificate of Designation in respect of one or more series of Preferred Stock) or the Bylaws of the Corporation, the adoption, amendment or repeal of the Bylaws of the Corporation by the stockholders of the Corporation shall require the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled to vote generally in an election of directors.

 

G. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.

 

ARTICLE VI
STOCKHOLDERS

 

A. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of the Corporation, and shall not be taken by written consent in lieu of a meeting. Notwithstanding the foregoing, any action required or permitted to be taken by the holders of any series of Preferred Stock then outstanding, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation in accordance with the applicable provisions of the DGCL.

 

B. Subject to the special rights of the holders of one or more series of Preferred Stock, special meetings of the stockholders of the Corporation may be called, for any purpose or purposes, at any time only by or at the direction of the Board of Directors, the Chairperson of the Board of Directors, the Chief Executive Officer or the President, and shall not be called by any other person or persons.

 

C. Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

 

ARTICLE VII
LIABILITY

 

No director or officer of the Corporation shall have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or hereafter may be amended. Any amendment, repeal or modification of this Article VII, or the adoption of any provision of the Second Amended and Restated Certificate inconsistent with this Article VII, shall not adversely affect any right or protection of a director or officer of the Corporation with respect to any act or omission occurring prior to such amendment, repeal, modification or adoption. If the DGCL is amended after approval by the stockholders of this Article VII to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended.

 

ARTICLE VIII
INDEMNIFICATION

 

The Corporation shall have the power to provide rights to indemnification and advancement of expenses to its current and former officers, directors, employees and agents and to any person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

 

 

ARTICLE IX
FORUM SELECTION

 

Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery of the State of Delaware (the “Chancery Court”) (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 applicable law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL or the Bylaws or this Second Amended and Restated Certificate (as either may be amended from time to time) or (iv) any action, suit or proceeding asserting a claim against the Corporation governed by the internal affairs doctrine; and (b) subject to the preceding provisions of this Article IX, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause or causes of action arising under the Securities Act of 1933, as amended, including all causes of action asserted against any defendant to such complaint. If any action the subject matter of which is within the scope of clause (a) of the immediately preceding sentence is filed in a court other than the courts in the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the State of Delaware in connection with any action brought in any such court to enforce the provisions of clause (a) of the immediately preceding sentence and (y) 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.

 

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 IX. This Article IX is intended to benefit and may be enforced by the Corporation, its officers and directors, the underwriters to any offering giving rise to such complaint, and any other professional or entity whose profession gives authority to a statement made by that person or entity and who has prepared or certified any part of the documents underlying the offering. Notwithstanding the foregoing, the provisions of this Article IX 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.

 

If any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article IX (including, without limitation, each portion of any paragraph of this Article IX containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.

 

 

ARTICLE X
AMENDMENTS

 

A. Notwithstanding anything contained in this Second Amended and Restated Certificate to the contrary, in addition to any vote required by applicable law, the following provisions in this Second Amended and Restated Certificate may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: Part B of Article IV, Article V, Article VI, Article VII, Article VIII, Article IX, and this Article X.

 

B. If any provision or provisions of this Second Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provision or provisions in any other circumstance and of the remaining provisions of this Second Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Second Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by applicable law, the provisions of this Second Amended and Restated Certificate (including, without limitation, each such portion of any paragraph of this Second Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.

 

 

10

 

Exhibit 3.2

 

 

 

 

 

 

 

 

 

AMENDED AND RESTATED BYLAWS

 

OF

 

BOLT THREADS, INC.

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents

 

		Page
Article I CORPORATE OFFICES		1
1.1	Offices	1
Article II MEETINGS OF STOCKHOLDERS		1
2.1	Place Of Meetings	1
2.2	Annual Meeting	1
2.3	Special Meeting	1
2.4	Notice Of Stockholders’ Meetings	2
2.5	Manner Of Giving Notice; Affidavit Of Notice	2
2.6	Quorum	2
2.7	Adjourned Meeting; Notice	3
2.8	Organization; Conduct of Business	3
2.9	Voting	3
2.10	Waiver Of Notice	3
2.11	Stockholder Action By Written Consent Without A Meeting	4
2.12	Record Date For Stockholder Notice; Voting; Giving Consents	5
2.13	Proxies	5
Article III DIRECTORS		6
3.1	Powers	6
3.2	Number Of Directors	6
3.3	Election, Qualification And Term Of Office Of Directors	6
3.4	Resignation And Vacancies	6
3.5	Place Of Meetings; Meetings By Telephone	7
3.6	Regular Meetings	7
3.7	Special Meetings; Notice	7
3.8	Quorum	8
3.9	Waiver Of Notice	8
3.10	Board Action By Written Consent Without A Meeting	8
3.11	Fees And Compensation Of Directors	9
3.12	Approval Of Loans To Officers	9
3.13	Removal Of Directors	9
3.14	Chairperson Of The Board Of Directors	9
Article IV COMMITTEES		9
4.1	Committees Of Directors	9
4.2	Committee Minutes	10
4.3	Meetings And Action Of Committees	10

 

 

Article V OFFICERS		10
5.1	Officers	10
5.2	Appointment Of Officers	10
5.3	Subordinate Officers	11
5.4	Removal And Resignation Of Officers	11
5.5	Vacancies In Offices	11
5.6	Chief Executive Officer	11
5.7	President	11
5.8	Vice Presidents	12
5.9	Secretary	12
5.10	Chief Financial Officer	12
5.11	Treasurer	13
5.12	Representation Of Shares Of Other Corporations	13
5.13	Authority And Duties Of Officers	13
Article VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS		14
6.1	Indemnification Of Directors And Officers	14
6.2	Indemnification Of Others	14
6.3	Payment Of Expenses In Advance	14
6.4	Indemnity Not Exclusive	14
6.5	Insurance	15
6.6	Conflicts	15
Article VII RECORDS AND REPORTS		15
7.1	Maintenance And Inspection Of Records	15
7.2	Inspection By Directors	16
Article VIII GENERAL MATTERS		16
8.1	Checks	16
8.2	Execution Of Corporate Contracts And Instruments	16
8.3	Stock Certificates and Notices; Uncertificated Stock; Partly Paid Shares	16
8.4	Special Designation On Certificates and Notices of Issuance	17
8.5	Lost Certificates	17
8.6	Construction; Definitions	17
8.7	Dividends	18
8.8	Fiscal Year	18
8.9	Transfer Of Stock	18
8.10	Stock Transfer Agreements	18
8.11	Stockholders of Record	18
8.12	Facsimile or Electronic Signature	18
Article IX AMENDMENTS		18

 

 

AMENDED AND RESTATED BYLAWS

 

OF

 

BOLT THREADS, INC.

 

Article I

 

CORPORATE OFFICES

 

1.1

Offices

 

In addition to the corporation’s registered office set forth in the certificate of incorporation, the Board of Directors may at any time establish other offices at any place or places where the corporation is qualified to do business.

 

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 of Directors. The Board of Directors 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 Delaware General Corporation Law. In the absence of any such designation or determination, stockholders’ meetings shall be held at the registered office of the corporation.

 

2.2

Annual Meeting

 

The annual meeting of stockholders shall be held on such date, time and place, either within or without the state of Delaware, as may be designated by resolution of the Board of Directors each year. At the meeting, directors shall be elected and any other proper business may be transacted.

 

2.3

Special Meeting

 

A special meeting of the stockholders may be called at any time by the Board of Directors, the chairperson of the board, the chief executive officer, the president or by one or more stockholders holding shares in the aggregate entitled to cast not less than 10% of the votes at that meeting.

 

 

If a special meeting is called by any person or persons other than the Board of Directors, the chairperson of the board, the chief executive officer or the president, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by email, fax, telegraphic or other facsimile or electronic transmission to the chairperson of the board, the chief executive officer, the president or the secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than 35 nor more than 60 days after the receipt of the request. If the notice is not given within 20 days after the receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held.

 

2.4

Notice Of Stockholders’ Meetings

 

Unless otherwise provided by law, all notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these bylaws not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting, as of the record date for determining the stockholders entitled to notice of the meeting. The notice shall specify the place (if any), date and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called.

 

2.5

Manner Of Giving Notice; Affidavit Of Notice

 

Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic mail or other electronic transmission, in the manner provided in Section 232 of the Delaware General Corporation Law. An affidavit of the secretary or an assistant secretary or of the transfer 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.

 

2.6

Quorum

 

The holders of a majority of the shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then either (a) the chairperson of the meeting or (b) holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, shall have power to adjourn the meeting to another place (if any), date or time.

 

 

2.7

Adjourned Meeting; Notice

 

When a meeting is adjourned to another place (if any), date or time, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place (if any), thereof and the means of remote communications (if any) by which stockholders and proxyholders may be deemed to be present and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the place (if any), date and time of the adjourned meeting 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 shall be given to each stockholder of record entitled to vote at the meeting.

 

2.8

Organization; Conduct of Business

 

Such person as the Board of Directors may have designated or, in the absence of such a person, the chief executive officer, or in his or her absence, the president or, in his or her absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairperson of the meeting. In the absence of the secretary of the corporation, the secretary of the meeting shall be such person as the chairperson of the meeting appoints.

 

The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including the manner of voting and the conduct of business. The date and time of opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.

 

2.9

Voting

 

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.12 of these bylaws, subject to the provisions of Sections 217 and 218 of the Delaware General Corporation Law (relating to voting rights of fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting agreements).

 

Except as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast affirmatively or negatively.

 

2.10

Waiver Of Notice

 

Whenever notice is required to be given under any provision of the Delaware General Corporation Law or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, or waiver by electronic mail or other electronic transmission by such person, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice, or any waiver of notice by electronic transmission, unless so required by the certificate of incorporation or these bylaws.

 

 

2.11

Stockholder Action By Written Consent Without A Meeting

 

Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote if a consent in writing, setting forth the action so taken, is (a) signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and (b) delivered to the corporation in accordance with Section 228(a) of the Delaware General Corporation Law.

 

Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the date the earliest dated consent is delivered to the corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the corporation in the manner prescribed in this Section. A telegram, cablegram, electronic mail or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for purposes of this Section to the extent permitted by law. Any such consent shall be delivered in accordance with Section 228(d)(1) of the Delaware General Corporation Law.

 

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

 

Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing (including by electronic mail or other electronic transmission as permitted by law). If the action which is consented to is such as would have required the filing of a certificate under any section of the Delaware General Corporation Law if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written consent has been given as provided in Section 228 of the Delaware General Corporation Law.

 

 

2.12

Record Date For Stockholder Notice; Voting; Giving Consents

 

(a) In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors 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 of Directors, and which record date: (1) in the case of determination of stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, shall, unless otherwise required by law, not be more than 60 nor less than 10 days before the date of such meeting and, unless the Board of Directors 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 determining the stockholders entitled to vote at such meeting, the record date for determining the stockholders entitled to notice of such meeting shall also be the record date for determining the stockholders entitled to vote at such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than 10 days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than 60 days prior to such other action.

 

(b) If the Board of Directors does not so fix a record date: (1) the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

(c) 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 of Directors may fix a new record date for the determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for the stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 2.12 at the adjourned meeting.

 

2.13

Proxies

 

Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by an instrument in writing or by an electronic transmission permitted by law filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, facsimile, electronic or telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the Delaware General Corporation Law.

 

 

Article III

 

DIRECTORS

 

3.1

Powers

 

Subject to the provisions of the Delaware General Corporation Law and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors.

 

3.2

Number Of Directors

 

The number of directors constituting the entire Board of Directors is one (1). This number may be changed by a resolution of the Board of Directors, subject to Section 3.4 of these bylaws. No reduction of the authorized number of directors shall have the effect of removing any director before such director’s term of office expires.

 

3.3

Election, Qualification And Term Of Office Of Directors

 

Except as provided in Section 3.4 of these bylaws, and unless otherwise provided in the certificate of incorporation, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein other qualifications for directors may be prescribed. Each director, including a director elected to fill a vacancy, shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal.

 

Unless otherwise specified in the certificate of incorporation, elections of directors need not be by written ballot.

 

3.4

Resignation And Vacancies

 

Any director may resign at any time upon written notice to the attention of the Secretary of the corporation. Any vacancy or newly created directorship may be filled with the consent of a majority of the directors then in office (including any directors that have tendered a resignation effective at a future date and even though less than a quorum), or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced by a vote of the stockholders.

 

If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the Delaware General Corporation Law.

 

 

If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the Delaware General Corporation Law as far as applicable.

 

3.5

Place Of Meetings; Meetings By Telephone

 

The Board of Directors of the corporation 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 of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, 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 shall constitute presence in person at the meeting.

 

3.6

Regular Meetings

 

Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the board.

 

3.7

Special Meetings; Notice

 

Special meetings of the Board of Directors 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 any two directors.

 

Notice of the time and place of special meetings shall be delivered personally or by telephone to each director or sent by first-class mail, facsimile, electronic transmission, or telegram, charges prepaid, addressed to each director at that director’s address as it is shown on the records of the corporation. If the notice is mailed, it shall be deposited in the United States mail at least 4 days before the time of the holding of the meeting. If the notice is delivered personally or by facsimile, electronic transmission, telephone or telegram, it shall be delivered at least 24 hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose of the meeting. The notice need not specify the place of the meeting, if the meeting is to be held at the principal executive office of the corporation. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.

 

 

3.8

Quorum

 

At all meetings of the Board of Directors, a majority of the total number of duly elected directors then in office (but in no case less than 1/3 of the total number of authorized directors) shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum is not present at any meeting of the Board of Directors, 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.

 

A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

 

3.9

Waiver Of Notice

 

Whenever notice is required to be given under any provision of the Delaware General Corporation Law or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, or waiver by electronic mail or other electronic transmission by such person, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors, or members of a committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.

 

3.10

Board Action By Written Consent 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 of Directors, 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, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

 

 

3.11

Fees And Compensation Of Directors

 

No director of the corporation shall be entitled to receive any compensation in connection with such service to the corporation, unless approved in advance by the Board of Directors and the holders of a majority of the issued and outstanding capital stock of the corporation. No such compensation, if any, shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor.

 

3.12

Approval Of Loans To Officers

 

The corporation shall not lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, unless approved in advance by the Board of Directors and the holders of a majority of the issued and outstanding capital stock of the corporation after finding that such loan, guaranty or assistance would reasonably be expected to benefit the corporation.

 

3.13

Removal Of Directors

 

Unless otherwise restricted by statute, by the certificate of incorporation or by these bylaws, any director or the entire Board of Directors may be removed, with or without cause, by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders, and any vacancy thereby created may be filled by the holders of that class or series of stock represented at the meeting or pursuant to written consent; provided, however, that if the stockholders of the corporation are entitled to cumulative voting, if less than the entire Board of Directors is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors.

 

No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

 

3.14

Chairperson Of The Board Of Directors

 

The corporation may also have, at the discretion of the Board of Directors, a chairperson of the Board of Directors who shall not be considered an officer of the corporation.

 

Article IV

 

COMMITTEES

 

4.1

Committees Of Directors

 

The Board of Directors may designate one or more committees, each committee to consist of one 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 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 of Directors 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 of Directors, or in these bylaws, shall have and may exercise all the powers and authority of the Board of Directors 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 which may require it; but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporate Law of Delaware to be submitted to stockholders for approval or (ii) adopting, amending or repealing 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 of Directors when required.

 

4.3

Meetings And Action Of Committees

 

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Section 3.5 (place of meetings and meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and Section 3.10 (action without a meeting) of these bylaws, with such changes in the context of such provisions as are necessary to substitute the committee and its members for the Board of Directors and its members; provided, however, that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee, that special meetings of committees may also be called by resolution of the Board of Directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

 

Article V

 

OFFICERS

 

5.1

Officers

 

The officers of the corporation shall be a president and a secretary. The corporation may also have, at the discretion of the Board of Directors, a chief executive officer, a chief financial officer, a treasurer, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and any such other officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person.

 

5.2

Appointment Of Officers

 

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be appointed by the Board of Directors, subject to the rights (if any) of an officer under any contract of employment.

 

 

5.3

Subordinate Officers

 

The Board of Directors may appoint, or empower the chief executive officer or the president to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board of Directors 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 an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the board or, except in the case of an officer chosen by the Board of Directors, by any officer upon whom the power of removal is conferred by the Board of Directors.

 

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; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights (if any) of the corporation under any contract to which the officer is a party.

 

5.5

Vacancies In Offices

 

Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors.

 

5.6

Chief Executive Officer

 

Subject to such supervisory powers (if any) as may be given by the Board of Directors to the chairperson of the board (if any), the chief executive officer of the corporation (if such an officer is appointed) shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and the officers of the corporation and shall have the general powers and duties of management usually vested in the office of chief executive officer of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these bylaws.

 

The person serving as chief executive officer shall also be the acting president of the corporation whenever no other person is then serving in such capacity.

 

5.7

President

 

Subject to such supervisory powers (if any) as may be given by the Board of Directors to the chairperson of the board (if any) or the chief executive officer, the president shall have general supervision, direction, and control of the business and other officers of the corporation. He or she shall have the general powers and duties of management usually vested in the office of president of a corporation and such other powers and duties as may be prescribed by the Board of Directors or these bylaws.

 

The person serving as president shall also be the acting chief executive officer, secretary or treasurer of the corporation, as applicable, whenever no other person is then serving in such capacity.

 

 

5.8

Vice Presidents

 

In the absence or disability of the chief executive officer and president, the vice presidents (if any) in order of their rank as fixed by the Board of Directors or, if not ranked, a vice president designated by the Board of Directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors, these bylaws, the president or the chairperson of the board.

 

5.9

Secretary

 

The secretary shall keep or cause to be kept, at the principal executive office of the corporation or such other place as the Board of Directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders. The minutes shall show the time and place of each meeting, the names of those present at directors’ meetings or committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof.

 

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the Board of Directors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates (if any) evidencing such shares, and the number and date of cancellation of every certificate (if any) surrendered for cancellation.

 

The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors required to be given by law or by these bylaws. He or she shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these bylaws.

 

5.10

Chief Financial Officer

 

The chief financial officer (if such an officer is appointed) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any member of the Board of Directors.

 

The chief financial officer shall render to the chief executive officer, the president, or the Board of Directors, upon request, an account of all his or her transactions as chief financial officer and of the financial condition of the corporation. He or she shall have the general powers and duties usually vested in the office of chief financial officer of a corporation and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or these bylaws.

 

 

The person serving as the chief financial officer shall also be the acting treasurer of the corporation whenever no other person is then serving in such capacity. Subject to such supervisory powers (if any) as may be given by the Board of Directors to another officer of the corporation, the chief financial officer shall supervise and direct the responsibilities of the treasurer whenever someone other than the chief financial officer is serving as treasurer of the corporation.

 

5.11

Treasurer

 

The treasurer (if such an officer is appointed) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records with respect to all bank accounts, deposit accounts, cash management accounts and other investment accounts of the corporation. The books of account shall at all reasonable times be open to inspection by any member of the Board of Directors.

 

The treasurer shall deposit, or cause to be deposited, all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He or she shall disburse the funds of the corporation as may be ordered by the Board of Directors and shall render to the chief financial officer, the chief executive officer, the president or the Board of Directors, upon request, an account of all his or her transactions as treasurer. He or she shall have the general powers and duties usually vested in the office of treasurer of a corporation and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or these bylaws.

 

The person serving as the treasurer shall also be the acting chief financial officer of the corporation whenever no other person is then serving in such capacity.

 

5.12

Representation Of Shares Of Other Corporations

 

The chairperson of the board, the chief executive officer, the president, any vice president, the chief financial officer, the secretary or assistant secretary of this corporation, or any other person authorized by the Board of Directors or the chief executive officer or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations 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 the person having such authority.

 

5.13

Authority And Duties Of Officers

 

In addition to the foregoing authority and duties, 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 designated from time to time by the Board of Directors or the stockholders.

 

 

Article VI

 

INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS

 

6.1

Indemnification Of Directors And Officers

 

The corporation shall, to the maximum extent and in the manner permitted by the Delaware General Corporation Law, indemnify each of its directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.1, a “director” or “officer” of the corporation includes any person (a) who is or was a director or officer of the corporation, (b) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was a director or officer of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

 

6.2

Indemnification Of Others

 

The corporation shall have the power, to the maximum extent and in the manner permitted by the Delaware General Corporation Law, to indemnify each of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) includes any person (a) who is or was an employee or agent of the corporation, (b) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

 

6.3

Payment Of Expenses In Advance

 

Expenses incurred in defending any action or proceeding for which indemnification is required pursuant to Section 6.1 or for which indemnification is permitted pursuant to Section 6.2 following authorization thereof by the Board of Directors shall be paid by the corporation in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the indemnified party is not entitled to be indemnified as authorized in this Article VI.

 

6.4

Indemnity Not Exclusive

 

The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, to the extent that such additional rights to indemnification are authorized in the certificate of incorporation.

 

 

6.5

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 or other enterprise 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 Delaware General Corporation Law.

 

6.6

Conflicts

 

No indemnification or advance shall be made under this Article VI, except where such indemnification or advance is mandated by law or the order, judgment or decree of any court of competent jurisdiction, in any circumstance where it appears:

 

(a) That it would be inconsistent with a provision of the certificate of incorporation, these bylaws, a resolution of the stockholders or an agreement in effect at the time of the accrual of the alleged cause of the action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or

 

(b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement.

 

Article VII

 

RECORDS AND REPORTS

 

7.1

Maintenance And Inspection Of Records

 

The corporation shall, either at its principal executive offices or at such place or places as designated by the Board of Directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books, and other records.

 

A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in each such stockholder’s name, shall be open to the examination of any such stockholder for a period of at least 10 days prior to the meeting in the manner provided by law. The stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. This 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.

 

 

7.2

Inspection By Directors

 

Any director shall have the right to examine the corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his or her position as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.

 

Article VIII

 

GENERAL MATTERS

 

8.1

Checks

 

From time to time, the Board of Directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.

 

8.2

Execution Of Corporate Contracts And Instruments

 

The Board of Directors, 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. Unless so authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

 

8.3

Stock Certificates and Notices; Uncertificated Stock; Partly Paid Shares

 

The shares of the corporation shall be uncertificated (or, if approved by the Board of Directors, certificated), in each case as provided under Delaware law, and shall be entered in the books of the corporation and recorded as they are issued. Any duly appointed officer of the corporation is authorized to sign share certificates, if applicable. Any or all of the signatures on any certificate, if applicable, may be a facsimile or electronic signature. In case any officer, transfer agent or registrar who has signed or whose facsimile or electronic signature has been placed upon a certificate, if applicable, 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.

 

 

Within a reasonable time after the issuance or transfer of uncertificated stock and upon the request of a stockholder, the corporation shall send to the record owner thereof a written notice that shall set forth the name of the corporation, that the corporation is organized under the laws of Delaware, the name of the stockholder, the number and class (and the designation of the series, if any) of the shares, and any restrictions on the transfer or registration of such shares of stock imposed by the corporation’s certificate of incorporation, these bylaws, any agreement among stockholders or any agreement between stockholders and the corporation.

 

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 (if any) 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.

 

8.4

Special Designation On Certificates and Notices of Issuance

 

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 back of the certificate that the corporation shall issue to represent such class or series of stock, if applicable, or the notice of issuance to the record owner of uncertificated stock; provided, however, that, except as otherwise provided in Section 202 of the Delaware General Corporation Law, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock, if applicable, or the notice of issuance to the record owner of uncertificated stock, or the purchase agreement for such stock 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.

 

8.5

Lost Certificates

 

Except as provided in this Section 8.5, no new certificates for shares shall be issued to replace a previously issued certificate, if applicable, unless the latter is surrendered to the corporation and cancelled at the same time. The corporation may issue a new certificate of stock or notice of uncertificated stock in the place of any certificate previously issued by it, if applicable, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or the 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.

 

8.6

Construction; Definitions

 

Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the Delaware General Corporation Law shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

 

 

8.7

Dividends

 

The directors of the corporation, subject to any restrictions contained in (a) the Delaware General Corporation Law or (b) 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 directors of the corporation 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.

 

8.8

Fiscal Year

 

The fiscal year of the corporation shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.

 

8.9

Transfer Of Stock

 

Upon receipt by the corporation or the transfer agent of the corporation of proper transfer instructions from the record holder of uncertificated shares or upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, if applicable, it shall be the duty of the corporation to issue a new certificate or, in the case of uncertificated securities and upon request, a notice of issuance of shares, to the person entitled thereto, cancel the old certificate (if any) and record the transaction in its books.

 

8.10

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 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 Delaware General Corporation Law.

 

8.11

Stockholders of Record

 

The corporation shall be entitled to recognize the exclusive right of a person recorded on its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments the person recorded on its books as the owner of shares, and 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 Delaware.

 

8.12

Facsimile or Electronic Signature

 

In addition to the provisions for use of facsimile or electronic signatures elsewhere specifically authorized in these bylaws, facsimile or electronic signatures of any stockholder, director or officer of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.

 

Article IX

 

AMENDMENTS

 

The Bylaws of the corporation may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal Bylaws upon the directors. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal Bylaws.

 

 

CERTIFICATE OF ADOPTION OF

AMENDED AND RESTATED BYLAWS

 

OF

 

BOLT THREADS, INC.

 

CERTIFICATE BY SECRETARY OF ADOPTION

 

The undersigned hereby certifies that the undersigned is the duly elected, qualified, and acting Secretary of Bolt Threads, Inc., a Delaware corporation (the “Corporation”), and that the foregoing Bylaws were adopted as the Bylaws of the Corporation on August 13, 2024, by the sole stockholder of the Corporation.

 

Executed on August 13, 2024.
	/s/ Paul Slattery
	Paul Slattery, Interim General Counsel and Secretary

 

 

19

Exhibit 10.7

 

AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT

 

THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of August 13, 2024, is made and entered into by and among Bolt Projects Holdings, Inc., a Delaware corporation (the “Company”) (formerly known as Golden Arrow Merger Corp., a Delaware corporation)), Golden Arrow Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), the independent directors of the Company identified on the signature pages hereto (each, a “GAMC Independent Director” and, collectively, the “GAMC Independent Directors” and, together with any of their or the Sponsor’s respective Permitted Transferees, the “GAMC Holders” and each, a “GAMC Holder”), certain former securityholders of Bolt Threads, Inc., a Delaware corporation (“Bolt”) identified on the signature pages hereto (such holders, the “Bolt Holders” and, collectively with the Sponsor, the GAMC Holders and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 6.2 of this Agreement, the “Holders” and each, a “Holder”).

 

RECITALS

 

WHEREAS, the Company, the Sponsor and the GAMC Independent Directors are party to that certain Registration Rights Agreement, dated as of March 16, 2021 (the “Original RRA”);

 

WHEREAS, the Company has entered into that certain Business Combination Agreement, dated as of October 4, 2023 (as it may be amended or supplemented from time to time, the “Merger Agreement”), by and among the Company, Beam Merger Sub, Inc. and Bolt;

 

WHEREAS, on the date hereof, pursuant to the Merger Agreement, the Bolt Holders will receive shares of common stock, par value $0.0001 per share (the “Common Stock”), of the Company;

 

WHEREAS, pursuant to Section 5.8 of the Original RRA, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company and the Holders (as defined in the Original RRA) of at least a majority-in-interest of the Registrable Securities (as defined in the Original RRA) at the time in question, and the Sponsor is the Holder of at least a majority-in-interest of the Registrable Securities as of the date hereof; and

 

WHEREAS, the Company and the Sponsor desire to amend and restate the Original RRA in its entirety and enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

 

 

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or the Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any Misstatement, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.

 

“Affiliate” has the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

 

“Agreement” shall have the meaning given in the Preamble hereto.

 

“Block Trade” shall have the meaning given in Section 2.4.1.

 

“Board” shall mean the Board of Directors of the Company.

 

“Bolt” shall have the meaning given in the Preamble hereto.

 

“Bolt Holders” shall have the meaning given in the Preamble hereto.

 

“Change of Control” means any transaction or series of transactions (A) the result of which is that a Person or “group” (within the meaning of Section 13(d) of the Exchange Act) of Persons (other than the Company or any of its Subsidiaries), has direct or indirect beneficial ownership of securities (or rights convertible or exchangeable into securities) representing fifty percent (50%) or more of the voting power of or economic rights or interests in the then-outstanding equity securities of the Company, (B) constituting a merger, consolidation, reorganization or other business combination, however effected, following which either (1) the members of the Board immediately prior to such merger, consolidation, reorganization or other business combination do not constitute at least a majority of the Board surviving the combination or (2) the voting securities of the Company immediately prior to such merger, consolidation, reorganization or other business combination do not continue to represent or are not converted into fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the Person resulting from such combination, or (C) the result of which is (i) a sale of all or substantially all of the assets of the Company (as appearing in its most recent balance sheet), or assets of the Company generating all or substantially all of the gross revenues or net income (as appearing in its most recent income statement), to any Person or (ii) that shares of Common Stock are delisted from the principal securities exchange or securities market on which such shares of Common Stock are then traded prior to the consummation of such transaction(s).

 

 

“Closing” shall have the meaning given in the Merger Agreement.

 

“Closing Date” shall have the meaning given in the Merger Agreement.

 

“Commission” shall mean the Securities and Exchange Commission.

 

“Common Stock” shall have the meaning given in the Recitals hereto.

 

“Company” shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.

 

“Demanding Holder” shall have the meaning given in Section 2.1.4.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

“Excise Tax Liability” means any excise tax liability of the Company for 2023 under Section 4501 of the Internal Revenue Code arising from redemptions of shares of Class A common stock by the Company’s stockholders.

 

“Excluded Shares” mean (a) any shares purchased pursuant to a PIPE Subscription Agreement and (b) any Common Stock acquired in the open market or otherwise from a Person other than a stockholder of Bolt immediately prior to the Closing.

 

“Form S-1 Shelf” shall have the meaning given in Section 2.1.1.

 

“Form S-3 Shelf” shall have the meaning given in Section 2.1.1.

 

“GAMC Holders” shall have the meaning given in the Preamble hereto.

 

“GAMC Independent Directors” shall have the meaning given in the Preamble hereto.

 

“GAMC Majority Holders” shall mean the GAMC Holders holding in the aggregate a majority of the Registrable Securities then held by all of the GAMC Holders.

 

“Holder Information” shall have the meaning given in Section 4.1.2.

 

“Holders” shall have the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.

 

“Immediate Family” means with respect to any Person, such Person’s spouse or partner (or former spouse or former partner), ancestors, descendants (whether by blood, marriage or adoption) or spouse of a descendant of such Person, brothers and sisters (whether by blood, marriage or adoption) and inter vivos or testamentary trusts of which only such Person and his spouse, ancestors, descendants (whether by blood, marriage or adoption), brothers and sisters (whether by blood, marriage or adoption) are beneficiaries.

 

 

“Independent Directors” means the independent directors of the Company prior to the Closing.

 

“Insider Trading Policy” means the insider trading policy or equivalent policy of the Company, as amended from time to time.

 

“Lock-up” shall have the meaning given in Section 5.1.

 

“Lock-up Period” shall mean (a) with respect to the Lock-up Shares, the period beginning on the Closing Date and ending on the date that is six (6) months after the Closing Date and (b) with respect to the Warrants or any shares of Common Stock issued or issuable upon the conversion or exercise of the Warrants, thirty (30) days after the Closing Date. Notwithstanding the foregoing, in the event that a definitive agreement that contemplates a Change of Control is entered into after the Closing, the Lock-up Period for any Lock-up Shares shall automatically terminate immediately prior to the consummation of such Change of Control. For the avoidance of doubt, no Lock-up Shares shall be subject to the lock-up restrictions in this Article V from and after the date that is six (6) months after the Closing Date.

 

“Lock-up Shares” shall mean, with respect to any Holder and such Holder’s Permitted Transferees, (A) the shares of Common Stock held by such Person immediately following the Closing and (B) the shares of Common Stock issuable to such Person upon the settlement or exercise of restricted stock units, stock options or other equity awards outstanding as of immediately following the Closing in respect of awards of Common Stock, in each case of the foregoing clauses (A) and (B), other than any Excluded Shares.

 

“Maximum Number of Securities” shall have the meaning given in Section 2.1.5.

 

“Merger Agreement” shall have the meaning given in the Recitals hereto.

 

“Minimum Takedown Threshold” shall have the meaning given in Section 2.1.4.

 

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

 

“Original RRA” shall have the meaning given in the Recitals hereto.

 

“Other Coordinated Offering” shall have the meaning given in Section 2.4.1.

 

“Permitted Transferees” shall mean (a) with respect to the Sponsor, the GAMC Independent Directors, the Bolt Holders and each of their respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period pursuant to Section 5.2 and (ii) after the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company and any transferee thereafter; and (b) with respect to all other Holders and their respective Permitted Transferees, any person or entity to whom such Holder of Registrable Securities is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company and any transferee thereafter.

 

 

“Person” shall mean any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental authority or instrumentality or other entity of any kind.

 

“Piggyback Registration” shall have the meaning given in Section 2.2.1.

 

“PIPE Subscription Agreement” shall have the meaning given in the Merger Agreement.

 

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

 

“Registrable Security” shall mean (a) any outstanding shares of Common Stock or any other equity security (including the Warrants and shares of Common Stock issued or issuable upon the exercise or conversion of the Warrants or any other equity security, including for the avoidance of doubt, the shares of Common Stock underlying shares of Class B Common Stock held by the Independent Directors, or any warrants or shares of Common Stock issuable upon conversion of any Working Capital Loans) of the Company held by a Holder immediately following the Closing (including any securities distributable pursuant to the Merger Agreement); (b) any outstanding shares of Common Stock or any other equity security (including the Warrants and shares of Common Stock issued or issuable upon the exercise or conversion of the Warrants or any other equity security, including for the avoidance of doubt, the shares of Common Stock underlying shares of Class B Common Stock held by the Independent Directors, or any warrants or shares of Common Stock issuable upon conversion of any Working Capital Loans) of the Company acquired by a Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of the Company; (c) any Additional Holder Common Stock; and (d)  any other equity security of the Company or any of its subsidiaries issued or issuable with respect to any securities referenced in clause (a), (b) or (c) above by way of a stock dividend or stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization, exchange, or similar transaction; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder; (B) (i) such securities shall have been otherwise transferred (other than to Permitted Transferees), (ii) new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and (iii) subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Section 4(a)(1) under the Securities (and without restriction under Rule 145 under the Securities Act) or pursuant to Rule 144 or any successor rule promulgated under the Securities Act (but with no volume or other restrictions or limitations as to manner or timing of sale imposed on Holder pursuant to Rule 144(b)(2)); and (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

 

“Registration” shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

 

“Registration Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:

 

(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any national securities exchange on which the Common Stock is then listed;

 

(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

(C) printing, messenger, telephone and delivery expenses;

 

(D) reasonable fees and disbursements of counsel for the Company;

 

(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration, including the expenses of any special audits and/or “cold comfort” letters required by or incident to such performance and compliance;

 

(F) in an Underwritten Offering or Other Coordinated Offering, reasonable fees and expenses not to exceed $50,000 in the aggregate for each Registration of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders with the approval of the Company, which approval shall not be unreasonably withheld;

 

(G) costs and expenses of the Company relating to analyst and investor presentations or any “road show” undertaken in connection with any Registration and/or marketing of the Registrable Securities; and

 

(H) any other fees and disbursements customarily paid by the issuers of securities, excluding in any case, any underwriting fees payable to a third party in connection with such issuance.

 

“Registration Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

“Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf or any Subsequent Shelf Registration Statement, as the case may be.

 

“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

 

“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.

 

“Sponsor” shall have the meaning given in the Preamble hereto.

 

“Sponsor Support Agreement” means that certain Sponsor Support Agreement, dated as of October 4, 2023, by and among the Sponsor, the Company and Bolt.

 

“Subsequent Shelf Registration Statement” shall have the meaning given in Section 2.1.2.

 

“Trading Day” means any day on which shares of Common Stock are actually traded on the principal securities exchange or securities market on which shares of Common Stock are then traded.

 

“Transfer” shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

 

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

“Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

“Underwritten Shelf Takedown” shall have the meaning given in Section 2.1.4.

 

“Warrants” means the outstanding warrants, each exercisable for one share of Common Stock, to purchase an aggregate of 5,000,000 shares of Common Stock, issued to the Sponsor pursuant to that certain Private Placement Warrants Purchase Agreement, dated March 16, 2021, by and between the Sponsor and the Company.

 

“Withdrawal Notice” shall have the meaning given in Section 2.1.6.

 

“Working Capital Loans” means the working capital loans as described in the Company’s final prospectus filed with the Commission in connection with its initial public offering.

 

 

ARTICLE II

 

REGISTRATIONS AND OFFERINGS

 

2.1 Shelf Registration.

 

2.1.1 Filing. Within thirty (30) calendar days following the Closing Date, the Company shall submit to or file with the Commission a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), if the Company is then eligible to use a Form S-3 Shelf, in each case, covering the resale of all the Registrable Securities (determined as of two (2) business days prior to such submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as practicable after the filing thereof, but no later than the earlier of (a) the sixtieth (60^th) calendar day following the filing date thereof, which shall be extended to the ninetieth (90^th) calendar day following the filing date thereof if the Commission notifies the Company that it will “review” the Registration Statement and (b) the fifth (5^th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act, including by filing a Subsequent Shelf Registration Statement pursuant to Section 2.1.2, until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to (i) convert the Form S-1 Shelf (and any Subsequent Shelf Registration Statement) to a Form S-3 Shelf or (ii) file a Form S-3 Shelf as the case may be, in each case, as soon as practicable after the Company is eligible to use Form S-3. The Company’s obligation under this Section 2.1.1, shall, for the avoidance of doubt, be subject to Section 3.4.

 

2.1.2 Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration Statement”) registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration Statement shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form. The Company’s obligation under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.

 

 

2.1.3 Additional Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company, upon written request of the GAMC Majority Holders or a Bolt Holder, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, any then available Shelf (including by means of a post-effective amendment) or by filing a Subsequent Shelf Registration Statement and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration Statement shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities to be so covered twice per calendar year, once at the request of the GAMC Majority Holders, on the one hand, and once at the request of the Bolt Holders, collectively, on the other.

 

2.1.4 Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, the GAMC Majority Holders or a Bolt Holder (any of the GAMC Majority Holders or a Bolt Holder being in such case, a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $25 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to 2.4.4, the Company shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), and to agree to the pricing and other terms of such offering, subject to the Company’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). The GAMC Majority Holders may collectively demand not more than two (2) Underwritten Shelf Takedowns and the Bolt Holders may collectively demand not more than two (2) Underwritten Shelf Takedowns, in each case, pursuant to this Section 2.1.4 in any twelve (12) month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering.

 

 

2.1.5 Reduction of Underwritten Offering. If the underwriter in an Underwritten Shelf Takedown advises the Demanding Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Demanding Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting (such maximum number of such securities, the “Maximum Number of Securities”) shall be allocated among all participating Holders thereof, including the Demanding Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.

 

2.1.6 Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided that the GAMC Majority Holders or the Bolt Holders may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the GAMC Majority Holders the Bolt Holders or any of their respective Permitted Transferees, as applicable. If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4, unless either (i) such Demanding Holder has not previously withdrawn any Underwritten Shelf Takedown or (ii) such Demanding Holder reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if the GAMC Majority Holders or the Bolt Holders elect to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by the GAMC Majority Holders, the Bolt Holders, as applicable, for purposes of Section 2.1.4. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.1.6.

 

 

2.1.7 New Registration Statement. Notwithstanding the registration obligations set forth in this Section 2.1, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Shelf Registration as required by the Commission and/or (ii) withdraw the Shelf Registration and file a new registration statement (a “New Registration Statement”), on Form S-3, or if Form S-3 is not then available to the Company for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities to register a lesser amount of Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of Registrable Securities held by the Holders. In the event the Company amends the Shelf Registration or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration, as amended, or the New Registration Statement.

 

2.2 Piggyback Registration.

 

2.2.1 Piggyback Rights. If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for holders of capital stock other than the Holders), or a Demanding Holder in accordance with Section 2.1.4 proposes to conduct a registered offer of, or conduct a registered offering of, any of its stock under the Securities Act in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company stock plan or a transaction covered by Rule 145 under the Securities Act, a registration in which the only stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such registered offering, a “Piggyback Registration”). Subject to Section 2.2.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder agreeing to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering. Notwithstanding anything to the contrary, the Holders shall have no rights under this Section 2.2.1 if the registration statement the Company proposes to file is solely for purposes of a delayed or continuous offering pursuant to Rule 415 under the Securities Act and, at the time of the filing of such registration statement, the Company is in compliance with its obligations under Section 2.1.

 

 

2.2.2 Reduction of Piggyback Registration. If the total amount of securities, including Registrable Securities, requested by holders of Registrable Securities to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling security holders according to the total amount of securities entitled to be included therein owned by each selling security holder or in such other proportions as shall mutually be agreed to by such selling security holders). For purposes of the preceding parenthetical concerning apportionment, for any selling security holder which is a holder of Registrable Securities and which is a partnership or corporation, the partners, retired partners and holders of capital stock of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling security holder,” and any pro-rata reduction with respect to such “selling security holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling security holder,” as defined in this sentence.

 

2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons or entities pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3.

 

 

2.2.4 Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.1.4 hereof.

 

2.3 Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriters, each Holder that is an executive officer, director or Holder in excess of five percent (5%) of the outstanding Common Stock (and for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the ninety (90)-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering, except as expressly permitted by such lock-up agreement or in the event the managing Underwriters otherwise agree by written consent. Each such Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders).

 

2.4 Block Trades; Other Coordinated Offerings.

 

2.4.1 Notwithstanding any other provision of this Article II, but subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, with an anticipated aggregate offering price of, either (x) at least $25 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) business days prior to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering. For the avoidance of doubt, nothing in this Agreement is intended to limit a Holder’s ability to engage in broker-initiated or similar trades that are not underwritten offerings.

 

 

2.4.2 Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters (if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2.

 

2.4.3 Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.

 

2.4.4 The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).

 

2.4.5 A Holder in the aggregate may demand no more than one (1) Block Trade or Other Coordinated Offering pursuant to this Section 2.4 in any twelve (12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4 shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4 hereof.

 

ARTICLE III

 

COMPANY PROCEDURES

 

3.1 General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible:

 

3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, or file a Subsequent Shelf Registration Statement, until all Registrable Securities have ceased to be Registrable Securities;

 

3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

 

 

3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;

 

3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

 

3.1.5 cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;

 

3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

 

3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

 

3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);

 

 

3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;

 

3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information and provided further, the Company may not include the name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder or Underwriter and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;

 

3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;

 

3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters;

 

 

3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;

 

3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);

 

3.1.15 with respect to an Underwritten Offering pursuant to Section 2.1.4, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and

 

3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.

 

Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or broker, sales agent or placement agent if such Underwriter or broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.

 

3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders selling any Registrable Securities in an offering shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all fees and expenses of any legal counsel representing the Holders.

 

3.3 Requirements for Participation in Registration Statement in Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No person or entity may participate in any Underwritten Offering or other offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person or entity (i) agrees to sell such person’s or entity’s securities on the basis provided in any underwriting, sales, distribution or placement arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such underwriting, sales, distribution or placement arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.

 

 

3.4 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.

 

3.4.1 Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed.

 

3.4.2 If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (c) in the good faith judgment of the Board, be seriously detrimental to the Company and its holders of capital stock, and it would therefore be essential to defer such filing, initial effectiveness or continued use at such time, the Company shall have the right, upon delivering prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), to delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.4.2, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.

 

3.4.3 During the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date ninety (90) days after the effective date of, a Company-initiated Registration and provided that the Company continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf Registration Statement, or (b) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and the Company and Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, the Company may, on not more than three (3) occasions during any twelve (12)-month period, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.1.4 or 2.4 for not more than sixty (60) consecutive calendar days or more than ninety (90) total calendar days in each case during any twelve (12)-month period.

 

 

3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders upon request with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further covenants that it shall use commercially reasonable efforts to take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Section 4(a)(1) of the Securities Act or Rule 144 promulgated under the Securities Act (or any successor rule then in effect). Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

 

ARTICLE IV

 

INDEMNIFICATION AND CONTRIBUTION

 

4.1 Indemnification.

 

4.1.1 The Company agrees to indemnify and hold harmless, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, managers, employees, advisers and agents and each person or entity who controls (within the meaning of the Securities Act or the Exchange Act) such Holder and each affiliate (within the meaning of Rule 405 under the Securities Act) of the Holder, from and against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, any reasonable and documented outside attorneys’ fees) resulting from, based upon or arising out of any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus or preliminary Prospectus in the light of the circumstances under which they were made, not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

 

4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each person or entity who controls (within the meaning of the Securities Act or the Exchange Act) the Company and each affiliate (within the meaning of Rule 405 under the Securities Act) of the Company against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable and documented outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein in the case of the Prospectus or preliminary Prospectus in the light of the circumstances under which they were made, or necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.

 

 

4.1.3 Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person or entity of such indemnified party and shall survive the transfer of securities.

 

4.1.5 If the indemnification provided under this Section 4 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 4.1.5 by any Holder, together with any amounts under Section 4.1.2, shall be limited in amount to the amount of net proceeds received by such Holder in such offering giving rise to such liability. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement.

 

 

ARTICLE V

 

Lock-Up

 

5.1 Subject to the exclusions in Section 5.2, each Holder agrees not to Transfer any Lock-up Shares until the end of the Lock-up Period (the “Lock-up”).

 

5.2 Each Holder or any of its Permitted Transferees may Transfer any Lock-up Shares it holds during the Lock-up Period (i) to any officers or directors, direct or indirect partners, members or equity holders of such Holder, any Affiliates or family members of any of the Company’s officers or directors, any Affiliates of such Holder or any related investment funds or vehicles controlled or managed by such Persons or their respective Affiliates, or to any other Holder; (ii) by gift to a charitable organization; (iii) in the case of an individual, by gift to a member of the individual’s Immediate Family or to a trust, the primary beneficiaries of which are such individual and/or one or more members of the individual’s Immediate Family or an Affiliate of such Person, or, in the case of a trust, Transfer to the trustor or beneficiary of such trust or the estate of a beneficiary of such trust; (iv) in the case of an individual, by will or other testamentary document or device or by virtue of laws of descent and distribution upon death of the individual; (v) in the case of an individual, pursuant to a qualified domestic relations order; (vi) with the Company’s prior written consent; (vii) to a nominee or custodian of any Person to which a Transfer would be permissible under any of the preceding clauses (i) through (vi); (viii) in connection with any bona fide mortgage, encumbrance or pledge to a financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof; (ix) to the Company; (x) forfeitures of Lock-up Shares to satisfy tax withholding requirements upon the vesting of equity-based awards granted pursuant to an equity incentive plan; (xi) in connection with a liquidation, merger, stock exchange, reorganization, tender offer or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Closing Date; (xii) distributions by virtue of the laws of the Holder’s jurisdiction or operating agreement upon dissolution, (xiii) to the extent required by any legal or regulatory order or (xiv) with respect to the Sponsor and GAMC Holders, in connection with sales of up to $2,875,000 in Lock-up Shares by the Sponsor or GAMC Holders to cover the Company’s Excise Tax Liability; provided that in each case of clauses (i)–(vii), if the transferee is not another Holder, such Transfer shall be subject to prior receipt by the Company of a duly executed joinder to this Agreement substantially in the form of Exhibit A hereto.

 

5.3 Each eligible Holder shall be permitted to enter into a trading plan established in accordance with Rule 10b5-1 under the Exchange Act during the applicable Lock-up Period so long as no Transfers of such Holder’s shares of Common Stock in contravention of this Article V are effected prior to the expiration of the applicable Lock-up Period.

 

5.4 Each Holder also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the Transfer of any Lock-up Shares except in compliance with the foregoing restrictions and to the addition of a legend to such Holder’s Lock-up Shares describing the foregoing restrictions.

 

5.5 For the avoidance of doubt, each Holder shall retain all of its rights as a stockholder of the Company with respect to the Lock-up Shares during the Lock-up Period, including the right to vote any Lock-up Shares and any dividends declared on the Lock-up Shares.

 

 

ARTICLE VI

 

MISCELLANEOUS

 

6.1 Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: Bolt Projects Holdings, Inc., 5858 Horton Street Suite 400, Emeryville, California, 94608, Attention: Paul Slattery, General Counsel, Email: pslattery@boltthreads.com, and, if to any Holder, at such Holder’s address, electronic mail address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 6.1.

 

6.2 Assignment; No Third Party Beneficiaries.

 

6.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

 

6.2.2 Subject to Section 6.2.4 and Section 6.2.5, this Agreement and the rights, duties and obligations of a Holder hereunder may be assigned in whole or in part to such Holder’s Permitted Transferees; provided, that, with respect to the Bolt Holders, the Sponsor and the GAMC Independent Directors, the rights hereunder that are personal to such Holders may not be assigned or delegated in whole or in part, except that (x)  each of the Bolt Holders shall be permitted to transfer its rights hereunder as the Bolt Holders to one or more affiliates or any direct or indirect partners, members or equity holders of such Bolt Holder (it being understood that no such transfer shall reduce any rights of such Bolt Holder or such transferees) and (y) the Sponsor and the GAMC Independent Directors shall be permitted to transfer their respective rights hereunder as the Sponsor and the GAMC Independent Directors to one or more of their respective affiliates or any direct or indirect partners, members or equity holders of the Sponsor or the GAMC Independent Directors (it being understood that no such transfer shall reduce any rights of the Sponsor or the GAMC Independent Directors or such transferees).

 

6.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.

 

6.2.4 This Agreement shall not confer any rights or benefits on any Persons or entities that are not parties hereto, other than as expressly set forth in this Agreement and Section 6.2.

 

6.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 6.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 6.2 shall be null and void.

 

6.3 Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement 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, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

 

6.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (1) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AND (2) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE EXCLUSIVELY IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

 

6.5 TRIAL BY JURY. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

6.6 Amendments and Modifications. Upon the written consent of (a) the Company and (b) the Holders of a majority of the total Registrable Securities, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

6.7 Other Registration Rights. Other than as provided in the Warrant Agreement, dated as of March 16, 2021, between the Company and Continental Stock Transfer & Trust Company, the Company represents and warrants that no person or entity, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account or for the account of any other person or entity. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

 

 

6.8 Term. This Agreement shall terminate on the earlier of (a) the fifth anniversary of the date of this Agreement or (b) with respect to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.

 

6.9 Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder.

 

6.10 Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

6.11 Entire Agreement; Restatement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, including with respect to paragraph 7(a) of that certain Letter Agreement, dated as of March 16, 2021, by and among the Sponsor and the insiders party thereto and that certain Subscription Agreement for Founder Shares, dated as of January 8, 2021, by and between Acquirer and the Sponsor (the “Sponsor Subscription Agreement”). Upon the Closing, the Original RRA and the Sponsor Subscription Agreement shall no longer be of any force or effect.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	COMPANY:
	BOLT PROJECTS HOLDINGS, INC.
	a Delaware corporation
	By:	/s/ Daniel Widmaier
		Name:	Daniel Widmaier
		Title:	Chief Executive Officer

 

	SPONSOR:
	GOLDEN ARROW SPONSOR, LLC
	a Delaware limited liability company
	By:	/s/ Andrew Rechtschaffen
		Name:	Andrew Rechtschaffen
		Title:	Member

 

	GAMC INDEPENDENT DIRECTORS:
	/s/ Brett Barth
	Brett Barth
	/s/ Lloyd Dean
	Lloyd Dean
	/s/ Steven Klosk
	Steven Klosk
	/s/ Jack Hidary
	Jack Hidary

 

 

	/s/ Daniel Steefel
	Daniel Steefel

 

 

	ANDERSON INVESTMENTS PTE. LTD.
	By:	/s/ Aftaab Mathur
		Name:	Aftaab Mathur
		Title:	Authorised Signatory

 

 

	/s/ Randy Befumo
	Randy Befumo

 

 

	/s/ David Breslauer
	David Breslauer

 

 

	DAVID N. BRESLAUER FAMILY TRUST
	By:	/s/ David Breslauer
		Name:	David Breslauer
		Title:	Trustee

 

 

	/s/ Ransley Carpio
	Ransley Carpio

 

 

	/s/ Jerry L. Fiddler
	Jerry L. Fiddler

 

 

	/s/ Jeri Finard
	Jeri Finard

 

 

	FORMATION8 PARTNERS FUND I, L.P.
	By:	Formation8 GP, LLC
	Its:	General Partner

 

	By:	/s/ Jim Kim
		Name:	Jim Kim
		Title:	Managing Partner

 

 

	FOUNDATION CAPITAL VI, L.P.
	By:	Foundation Capital Management Co. VI, LLC
	Its:	Manager

 

	By:	/s/ Steve Vassallo
		Name:	Steve Vassallo
		Title:	Manager

 

	FOUNDATION CAPITAL VI PRINCIPALS FUND, LLC
	By:	Foundation Capital Management Co. VI, LLC
	Its:	Manager

 

	By:	/s/ Steve Vassallo
		Name:	Steve Vassallo
		Title:	Manager

 

 

	JAZEM I FAMILY PARTNERS, LP
	By:	/s/ Jerry L. Fiddler
		Name:	Jerry L. Fiddler
		Title:	General Partner

 

 

	/s/ Sami Naffakh
	Sami Naffakh

 

 

	/s/ Cintia Nardi
	Cintia Nardi

 

 

	SCOTTISH MORTGAGE
	INVESTMENT TRUST PLC, acting
	through its agent, Baillie Gifford & Co
	By:	/s/ Tom Slater
		Name:	Tom Slater
		Title:	Authorised Signatory

 

 

	/s/ Paul Slattery
	Paul Slattery

 

 

	/s/ Esther van den Boom
	Esther van den Boom

 

 

	/s/ Daniel Widmaier
	Daniel Widmaier

 

 

	ZYGOTE VENTURES LLC
	By:	/s/ Jerry L. Fiddler
		Name:	Jerry L. Fiddler
		Title:	General Partner

 

 

Exhibit A

 

FORM OF JOINDER TO REGISTRATION RIGHTS AGREEMENT

 

[●], 202[●]

 

Reference is made to the Registration Rights Agreement, dated as of [●], 202[●], by and among Bolt Projects Holdings, Inc. (the “Company”), the Sponsor and the other Holders (as defined therein) from time to time party thereto (as amended from time to time, the “Registration Rights Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Registration Rights Agreement.

 

Each of the Company and each undersigned holder of shares of the Company (each, a “New Holder”) agrees that this Joinder to the Registration Rights Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration.

 

By executing and delivering this Joinder to the Registration Rights Agreement to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s shares of Common Stock shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein; provided  however, that the undersigned and its permitted assigns (if any) shall not have any rights as a Holder, and the undersigned’s (and its transferees’) shares of Common Stock shall not be included as Registrable Securities, for purposes of the Excluded Sections.

 

For purposes of this Joinder, “Excluded Sections” shall mean [    ]¹.

 

This Joinder may be executed in multiple counterparts, including by means of facsimile or electronic signature, each of which shall be deemed an original, but all of which together shall constitute the same instrument.

 

[Remainder of Page Intentionally Left Blank.]

 

1

Note to Draft: Permitted Transferees who receive Lock-up Shares will execute this joinder to comply with the requirements of Section 5.2 and will not receive any registration rights under this agreement. For other approved assignments of this agreement pursuant to Section 6.2.5, this defined term can be modified to align with the terms of such mutually agreed assignment.

 

 

IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.

 

	[NEW HOLDER]
	By:
		Name:
		Title:

 

	BOLT PROJECTS HOLDINGS, INC.
	By:
		Name:
		Title:

 

	GOLDEN ARROW SPONSOR, LLC
	By:
		Name:	Andrew Rechtschaffen
		Title:	Member

 

 

Exhibit 10.18

 

 

ARTICLE I.
Purpose

 

The Plan’s purpose is to enhance the Company’s ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing these individuals with equity ownership opportunities and/or equity-linked compensatory opportunities. Capitalized terms used in the Plan are defined in Article XI.

 

ARTICLE II.
Eligibility

 

Service Providers are eligible to be granted Awards under the Plan, subject to the limitations described herein.

 

ARTICLE III.
Administration and Delegation

 

3.1 Administration. The Plan is administered by the Administrator. The Administrator has authority to determine which Service Providers receive Awards, grant Awards and set Award terms and conditions, subject to the conditions and limitations in the Plan. The Administrator also has the authority to take all actions and make all determinations under the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal Plan administrative rules, guidelines and practices as it deems advisable. The Administrator may correct defects and ambiguities, supply omissions and reconcile inconsistencies in the Plan or any Award Agreement as it deems necessary or appropriate to administer the Plan and any Awards. The Administrator’s determinations under the Plan are in its sole discretion and will be final and binding on all persons having or claiming any interest in the Plan or any Award.

 

3.2 Appointment of Committees. To the extent Applicable Laws permit, the Board or the Administrator may delegate any or all of its powers under the Plan to one or more Committees or committees of officers of the Company or any of its Subsidiaries; provided, that in no event shall any officer of the Company be delegated the authority to grant Awards to, or amend Awards held by, individuals who are subject to Section 16 of the Exchange Act or officers of the Company (or non-employee Directors) to whom the authority to grant or amend Awards has been delegated hereunder. The Board or the Administrator, as applicable, may rescind any such delegation, abolish any such Committee or committee and/or re-vest in itself any previously delegated authority at any time.

 

ARTICLE IV.
Stock Available for Awards

 

4.1 Number of Shares. Subject to adjustment under Article VIII and further subject to the terms of this Article IV, the maximum number of Shares that may be issued pursuant to Awards under the Plan shall be equal to the Overall Share Limit. Shares issued under the Plan may consist of authorized but unissued Shares, Shares purchased on the open market or treasury Shares.

 

4.2 Share Recycling. If all or any part of an Award expires, lapses or is terminated, exchanged for or settled in cash, surrendered, repurchased, canceled without having been fully exercised/settled or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award at a price not greater than the price (as adjusted to reflect any Equity Restructuring) paid by the Participant for such Shares or not issuing any Shares covered by the Award, the unused Shares covered by the Award will, as applicable, become or again be available for Award grants under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not count against the Overall Share Limit. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 4.1 and shall not be available for future grants of Awards: (a) Shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof; (b) Shares purchased on the open market with the cash proceeds from the exercise of Options and (c) Shares delivered (either by actual delivery or attestation) to the Company by a Participant to satisfy the applicable exercise or purchase price of an Award and/or to satisfy any applicable tax withholding obligation with respect to an Award (including Shares retained by the Company from the Award being exercised or purchased and/or creating the tax obligation).

 

 

4.3 Incentive Stock Option Limitations. Notwithstanding anything to the contrary herein, no more than 6,492,721 Shares may be issued pursuant to the exercise of Incentive Stock Options.

 

4.4 Substitute Awards. In connection with an entity’s merger or consolidation with the Company or any Subsidiary or the Company’s or any Subsidiary’s acquisition of an entity’s property or equity securities, the Administrator may grant Awards in substitution for any options or other equity or equity-based awards granted before such merger or consolidation by such entity or its affiliate. Substitute Awards may be granted on such terms as the Administrator deems appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the Overall Share Limit (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has equity securities available under a pre-existing plan approved by equityholders and not adopted in contemplation of such acquisition or combination, the equity securities available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the equityholders of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan (and Shares subject to such Awards shall not be added to the Shares available for Awards under the Plan as provided above); provided that Awards using such available Shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Service Providers prior to such acquisition or combination.

 

4.5 Non-Employee Director Compensation. Notwithstanding any provision to the contrary in the Plan, the Administrator may establish compensation for non-employee Directors from time to time, subject to the limitations in the Plan. The Administrator will from time to time determine the terms, conditions and amounts of all such non-employee Director compensation in its discretion and pursuant to the exercise of its business judgment, taking into account such factors, circumstances and considerations as it shall deem relevant from time to time; provided that, the sum of any cash compensation, or other compensation, and the value (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) of Awards granted to a non-employee Director as compensation for services as a non-employee Director during any fiscal year of the Company may not, in the aggregate, exceed $350,000 (or, with respect to the first fiscal year of the Company during which a non-employee Director first serves as a non-employee Director, $500,000) (in either case, the “Non-Employee Director Limit”).

 

 

ARTICLE V.
Stock Options and Stock Appreciation Rights

 

5.1 General. The Administrator may grant Options or Stock Appreciation Rights to Service Providers subject to the limitations in the Plan, including any limitations in the Plan that apply to Incentive Stock Options. The Administrator will determine the number of Shares covered by each Option and Stock Appreciation Right, and the conditions and limitations applicable to the exercise of each Option and Stock Appreciation Right. A Stock Appreciation Right will entitle the Participant (or other person entitled to exercise the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of exercise over the exercise price per Share of the Stock Appreciation Right by the number of Shares with respect to which the Stock Appreciation Right is exercised, subject to any limitations of the Plan or that the Administrator may impose, and which amount shall be payable in cash, Shares valued at Fair Market Value or a combination of the two as the Administrator may determine or provide in the applicable Award Agreement.

 

5.2 Exercise Price. The Administrator will establish each Option’s and Stock Appreciation Right’s exercise price and specify the exercise price in the Award Agreement. Unless otherwise determined by the Administrator, the exercise price will not be less than 100% of the Fair Market Value on the grant date of the Option (subject to Section 5.6) or Stock Appreciation Right. Notwithstanding the foregoing, in the case of an Option or a Stock Appreciation Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that the exercise price of any Substitute Award shall be determined in accordance with the applicable requirements of Sections 424 and 409A of the Code.

 

5.3 Duration. Each Option or Stock Appreciation Right will be exercisable at such times and as specified in the Award Agreement, provided that, subject to Section 5.6, the term of an Option or Stock Appreciation Right will not exceed ten years. Notwithstanding the foregoing and unless determined otherwise by the Company, in the event that on the last business day of the term of an Option or Stock Appreciation Right (other than an Incentive Stock Option) (a) the exercise of the Option or Stock Appreciation Right is prohibited by Applicable Law, as determined by the Company, or (b) Shares may not be purchased or sold by the applicable Participant due to any Company insider trading policy (including blackout periods) or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Option or Stock Appreciation Right shall be automatically extended until the date that is 30 days after the end of the legal prohibition, black-out period or lock-up agreement, as determined by the Company; provided, however, in no event shall the extension last beyond the ten year term (or any shorter maximum, if applicable) of the applicable Option or Stock Appreciation Right.

 

5.4 Exercise. Options and Stock Appreciation Rights may be exercised by delivering to the Company (or its Agent) a written notice of exercise, in a form approved by the Administrator (which may be electronic and provided through the online platform maintained by an Agent), signed or submitted by the person authorized to exercise the Option or Stock Appreciation Right, together with, as applicable, payment in full of the required amount(s), in each case, as applicable, (a) as specified in Section 5.5 for the number of Shares for which the Award is exercised and (b) as specified in Section 9.5 for any applicable taxes. Unless the Administrator otherwise determines, an Option or Stock Appreciation Right may not be exercised for a fraction of a Share.

 

5.5 Payment Upon Exercise. Subject to Section 10.8, any Company insider trading policy (including blackout periods) and Applicable Laws, the exercise price of an Option must be paid by online payment through the Agent’s electronic platform or by wire transfer of immediately available funds to the Agent (or, in each case, if the Company has no Agent accepting payment, by wire transfer of immediately available funds to the Company) or, solely with the consent of the Administrator (in its discretion), by:

 

(a) cash, wire transfer of immediately available funds or check payable to the order of the Company, provided that the Administrator may limit the use of one of the foregoing payment forms if one or more of the payment forms below is permitted;

 

 

(b) if there is a public market for Shares at the time of exercise, unless the Administrator otherwise determines, (i) delivery (including electronically or telephonically to the extent permitted by the Administrator) of an irrevocable and unconditional undertaking by a broker acceptable to the Administrator to deliver promptly to the Company sufficient funds to pay the exercise price, or (ii) the Participant’s delivery to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Administrator to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided that such amount is paid to the Company at such time as may be required by the Administrator;

 

(c) delivery (either by actual delivery or attestation) of Shares owned by the Participant valued at their Fair Market Value;

 

(d) surrendering Shares then issuable upon the Option’s exercise valued at their Fair Market Value on the exercise date;

 

(e) other than for Participants subject to Section 13(k) of the Exchange Act with respect to the Company or its Subsidiaries, delivery of a promissory note, in a form determined by or acceptable to the Administrator, or any other property that the Administrator determines is good and valuable consideration; or

 

(f) any combination of the above payment forms.

 

5.6 Additional Terms of Incentive Stock Options. The Administrator may grant Incentive Stock Options only to employees of the Company, any of its present or future parent or subsidiary corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code. If an Incentive Stock Option is granted to a Greater Than 10% Stockholder, the exercise price will not be less than 110% of the Fair Market Value on the Option’s grant date, and the term of the Option will not exceed five years. All Incentive Stock Options will be subject to and construed consistently with Section 422 of the Code. By accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (a) two years from the grant date of the Option or (b) one year after the transfer of such Shares to the Participant, specifying the date of the disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such disposition or other transfer. Neither the Company nor the Administrator will be liable to a Participant, or any other party, if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under Section 422 of the Code. Any Incentive Stock Option or portion thereof that fails to qualify as an “incentive stock option” under Section 422 of the Code for any reason, including by becoming exercisable with respect to Shares having a fair market value exceeding the $100,000 limitation under Treasury Regulation Section 1.422-4, will be a Non-Qualified Stock Option.

 

5.7 No Dividends or Dividend Equivalents. No dividends or Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights.

 

 

ARTICLE VI.
Restricted Stock; Restricted Stock Units

 

6.1 General. The Administrator may grant Restricted Stock, or the right to purchase Restricted Stock, to any Service Provider, subject to the Company’s right to repurchase all or part of such Shares at their issue price or other stated or formula price from the Participant (or to require forfeiture of such Shares) if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant Restricted Stock Units to any Service Provider, which may be subject to vesting and forfeiture conditions during the applicable restriction period or periods that the Administrator establishes for such Award, as set forth in an Award Agreement. The Administrator will determine and set forth in the Award Agreement the terms and conditions for each Restricted Stock and Restricted Stock Unit Award, subject to the conditions and limitations contained in the Plan.

 

6.2 Restricted Stock.

 

(a) Dividends. Participants holding Shares of Restricted Stock will be entitled to all ordinary cash dividends paid with respect to such Shares, unless the Administrator provides otherwise in the Award Agreement. In addition, unless the Administrator provides otherwise, if any dividends or distributions are paid in Shares, or consist of a dividend or distribution to holders of Common Stock of property other than an ordinary cash dividend, the Shares or other property will be subject to the same restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid. Notwithstanding anything to the contrary herein, with respect to any award of Restricted Stock, dividends which are paid to holders of Common Stock prior to vesting shall only be paid out to the Participant holding such Restricted Stock to the extent that the vesting conditions are subsequently satisfied. All such dividend payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the dividend payment becomes nonforfeitable.

 

(b) Stock Certificates. The Company may require that the Participant deposit in escrow with the Company (or its designee) any stock certificates issued in respect of Shares of Restricted Stock, together with a stock power endorsed in blank.

 

6.3 Restricted Stock Units.

 

(a) Settlement. The Administrator may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practicable after the Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply with Section 409A. Restricted Stock Units may be settled in cash or in Shares, as determined by the Administrator and set forth in the applicable Award Agreement.

 

(b) Stockholder Rights. A Participant will have no rights of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and until the Shares are delivered in settlement of the Restricted Stock Unit.

 

(c) Dividend Equivalents. For clarity, Dividend Equivalents with respect to an Award of Restricted Stock Units shall only be paid out to the Participant to the extent that the vesting conditions applicable to the underlying Award are satisfied. All such Dividend Equivalent payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the Dividend Equivalent payment becomes nonforfeitable in accordance with the foregoing, unless otherwise determined by the Administrator or unless deferred in a manner intended to comply with Section 409A.

 

 

ARTICLE VII.
Other Stock or Cash Based Awards; DIVIDEND EQUIVALENTS

 

7.1 Other Stock or Cash Based Awards. Other Stock or Cash Based Awards may be granted to Participants, including Awards entitling Participants to receive Shares to be delivered in the future and including annual or other periodic or long-term cash bonus awards (whether based on specified Performance Criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such Other Stock or Cash Based Awards will also be available as a payment form in the settlement of other Awards, as standalone payments and as payment in lieu of compensation to which a Participant is otherwise entitled. Other Stock or Cash Based Awards may be paid in Shares, cash or other property, or any combination of the foregoing, as the Administrator determines. Subject to the provisions of the Plan, the Administrator will determine the terms and conditions of each Other Stock or Cash Based Award, including any purchase price, performance goal(s) (which may be based on the Performance Criteria), transfer restrictions, and vesting conditions, which will be set forth in the applicable Award Agreement. In addition, the Company may adopt subplans or programs under the Plan pursuant to which it makes Awards available in a manner consistent with the terms and conditions of the Plan.

 

7.2 Dividend Equivalents. A grant of Restricted Stock Units or Other Stock or Cash Based Award may provide a Participant with the right to receive Dividend Equivalents, and no dividends or Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to the same restrictions on transferability and forfeitability as the Award with respect to which the Dividend Equivalents are paid and subject to other terms and conditions as set forth in the Award Agreement. Notwithstanding anything to the contrary herein, Dividend Equivalents with respect to an Award shall only be paid out to the Participant to the extent that the vesting conditions applicable to the underlying Award are satisfied. All such Dividend Equivalent payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the Dividend Equivalent payment becomes nonforfeitable in accordance with the foregoing, unless otherwise determined by the Administrator.

 

ARTICLE VIII.
Adjustments for Changes in Common Stock
and Certain Other Events

 

8.1 Equity Restructuring. In connection with any Equity Restructuring, notwithstanding anything to the contrary in this Article VIII, the Administrator will equitably adjust each outstanding Award as it deems appropriate to reflect the Equity Restructuring, which may include adjusting the number and type of securities subject to each outstanding Award and/or the Award’s exercise price or grant price (if applicable), granting new Awards to Participants, and/or making a cash payment to Participants. The adjustments provided under this Section 8.1 will be nondiscretionary and final and binding on the affected Participant and the Company; provided that the Administrator will determine whether an adjustment is equitable.

 

8.2 Corporate Transactions. In the event of any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reorganization, merger, consolidation, combination, amalgamation, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common Stock or other securities of the Company, Change in Control, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, other similar corporate transaction or event, other unusual or nonrecurring transaction or event affecting the Company or its financial statements or any change in any Applicable Laws or accounting principles, the Administrator, on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event (except that action to give effect to a change in Applicable Law or accounting principles may be made within a reasonable period of time after such change), is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to (x) prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any Award granted or issued under the Plan, (y) facilitate such transaction or event or (z) give effect to such changes in Applicable Laws or accounting principles:

 

(a) To provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights, in any case, is equal to or less than zero, then the Award may be terminated without payment;

 

 

(b) To provide that such Award shall vest and, to the extent applicable, be exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the provisions of such Award;

 

(c) To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, or the equivalent value thereof in cash, with appropriate adjustments as to the number and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the Administrator;

 

(d) To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards and/or with respect to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Article IV hereof on the maximum number and kind of shares which may be issued) and/or in the terms and conditions of (including the grant or exercise price or applicable performance goals), and the criteria included in, outstanding Awards;

 

(e) To replace such Award with other rights or property selected by the Administrator; and/or

 

(f) To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.

 

8.3 Effect of Non-Assumption in a Change in Control. Notwithstanding the provisions of Section 8.2, unless otherwise determined by the Board in its sole discretion, if a Change in Control occurs and a Participant’s Award is not continued, converted, assumed, or replaced with an award (which may include, without limitation, a cash-based award) with substantially the same value as, and vesting terms that are no less favorable than those applicable to, the underlying award, in each case, as of immediately prior to the Change in Control by (a) the Company, or (b) a successor entity or its parent or subsidiary (an “Assumption”), and provided that the Participant has not had a Termination of Service, then, immediately prior to the Change in Control, such Award shall become fully vested, exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions on such Award shall lapse, in which case, such Award shall be canceled upon the consummation of the Change in Control in exchange for the right to receive the Change in Control consideration payable to other holders of Common Stock (i) which may be on such terms and conditions as apply generally to holders of Common Stock under the Change in Control documents (including, without limitation, any escrow, earn-out or other deferred consideration provisions) or such other terms and conditions as the Administrator may provide, and (ii) determined by reference to the number of Shares subject to such Award and net of any applicable exercise price; provided that to the extent that any Award constitutes “nonqualified deferred compensation” that may not be paid upon the Change in Control under Section 409A (to the extent applicable to such Award) without the imposition of taxes thereon under Section 409A, the timing of such payments shall be governed by the applicable Award Agreement (subject to any deferred consideration provisions applicable under the Change in Control documents); and provided, further, that if the amount to which the Participant would be entitled upon the settlement or exercise of such Award at the time of the Change in Control is equal to or less than zero, then such Award may be terminated without payment. The Administrator shall determine whether an Assumption of an Award has occurred in connection with a Change in Control.

 

 

8.4 Administrative Stand Still. In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other extraordinary transaction or change affecting the Shares or the share price of Common Stock, including any Equity Restructuring or any securities offering or other similar transaction, for administrative convenience, the Administrator may refuse to permit the exercise of any Award for up to 60 days before or after such transaction.

 

8.5 General. Except as expressly provided in the Plan or the Administrator’s action under the Plan, no Participant will have any rights due to any subdivision or consolidation of Shares of any class, dividend payment, increase or decrease in the number of Shares of any class or dissolution, liquidation, merger, or consolidation of the Company or other corporation. Except as expressly provided with respect to an Equity Restructuring under Section 8.1 or the Administrator’s action under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any class, will affect, and no adjustment will be made regarding, the number of Shares subject to an Award or the Award’s grant or exercise price. The existence of the Plan, any Award Agreements and the Awards granted hereunder will not affect or restrict in any way the Company’s right or power to make or authorize (a) any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, (b) any merger, consolidation, dissolution or liquidation of the Company or sale of Company assets or (c) any sale or issuance of securities, including securities with rights superior to those of the Shares or securities convertible into or exchangeable for Shares. The Administrator may treat Participants and Awards (or portions thereof) differently under this Article VIII.

 

ARTICLE IX.
General Provisions Applicable to Awards

 

9.1 Transferability. Except as the Administrator may determine or provide in an Award Agreement or otherwise for Awards other than Incentive Stock Options, Awards may not be sold, assigned, transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except for certain beneficiary designations, by will or the laws of descent and distribution, or, subject to the Administrator’s consent, pursuant to a domestic relations order, and, during the life of the Participant, Options and Stock Appreciation Rights will be exercisable only by the Participant. Any permitted transfer of an Award hereunder shall be without consideration, except as required by Applicable Law. References to a Participant, to the extent relevant in the context, will include references to a Participant’s authorized transferee that the Administrator specifically approves.

 

9.2 Documentation. Each Award will be evidenced in an Award Agreement, which may be written or electronic, as the Administrator determines. The Award Agreement will contain the terms and conditions applicable to an Award. Each Award may contain terms and conditions in addition to those set forth in the Plan.

 

 

9.3 Discretion. Except as the Plan otherwise provides, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award to a Participant need not be identical, and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.

 

9.4 Termination of Status. The Administrator will determine how a Participant’s Disability, death, retirement or authorized leave of absence or any other change or purported change in a Participant’s Service Provider status affects an Award (including whether and when a Termination of Service has occurred) and the extent to which, and the period during which the Participant, the Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award, if applicable.

 

9.5 Withholding. Each Participant must pay the Company, or make provision satisfactory to the Administrator for payment of, any taxes required by Applicable Law to be withheld in connection with such Participant’s Awards by the date of the event creating the tax liability. The Company or one of its Subsidiaries may deduct an amount sufficient to satisfy such tax obligations based on the applicable statutory withholding rates (or such other rate as may be determined by the Administrator after considering any accounting consequences or costs) from any payment of any kind otherwise due to a Participant. Subject to Section 10.8 and any Company insider trading policy (including blackout periods), Participants may satisfy such tax obligations through the Agent’s electronic platform or by wire transfer of immediately available funds to the Agent (or, in each case, if the Company has no Agent accepting payment, by wire transfer of immediately available funds to the Company) or, solely with the consent of the Administrator, by (a) cash, wire transfer of immediately available funds or check made payable to the order of the Company, (b) delivery of Shares (in whole or in part), including Shares delivered by attestation and Shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of delivery, (c) if there is a public market for Shares at the time the tax obligations are satisfied, unless the Administrator otherwise determines, (i) delivery (including electronically or telephonically to the extent permitted by the Administrator) of an irrevocable and unconditional undertaking by a broker acceptable to the Administrator to deliver promptly to the Company sufficient funds to satisfy the tax obligations, or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Administrator to deliver promptly to the Company cash or a check sufficient to satisfy the tax withholding; provided that such amount is paid to the Company at such time as may be required by the Administrator, or (d) any combination of the foregoing payment forms approved by the Administrator. Notwithstanding any other provision of the Plan, the number of Shares which may be so delivered or retained pursuant to clause (b) of the immediately preceding sentence shall be limited to the number of Shares which have a Fair Market Value on the date of delivery or retention no greater than the aggregate amount of such liabilities based on the maximum individual statutory tax rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America), and for clarity, may be less than such maximum individual statutory tax rate if so determined by the Administrator. If any tax withholding obligation will be satisfied under clause (b) above by the Company’s retention of Shares from the Award creating the tax obligation and there is a public market for Shares at the time the tax obligation is satisfied, the Company may elect to instruct any brokerage firm determined acceptable to the Company for such purpose to sell on the applicable Participant’s behalf some or all of the Shares retained and to remit the proceeds of the sale to the Company or its designee, and each Participant’s acceptance of an Award under the Plan will constitute the Participant’s authorization to the Company and instruction and authorization to such brokerage firm to complete the transactions described in this sentence.

 

9.6  Amendment of Award; Repricing. The Administrator may amend, modify or terminate any outstanding Award, including by substituting another Award of the same or a different type, changing the exercise or settlement date, and converting an Incentive Stock Option to a Non-Qualified Stock Option. The Participant’s consent to such action will be required unless (a) the action, taking into account any related action, does not materially and adversely affect the Participant’s rights under the Award, or (b) the change is permitted under Article VIII or pursuant to Section 10.6. Notwithstanding the foregoing or anything in the Plan to the contrary, the Administrator may, without the approval of the stockholders of the Company, (i) reduce the exercise price per share of outstanding Options or Stock Appreciation Rights or (ii) cancel outstanding Options or Stock Appreciation Rights in exchange for cash, other Awards or Options or Stock Appreciation Rights with an exercise price per share that is less than the exercise price per share of the original Options or Stock Appreciation Rights.

 

 

9.7 Conditions on Delivery of Stock. The Company will not be obligated to deliver any Shares under the Plan or remove restrictions from Shares previously delivered under the Plan until (a) all Award conditions have been met or removed to the Company’s satisfaction, (b) as determined by the Company, all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including any applicable securities laws and stock exchange or stock market rules and regulations, and (c) the Participant has executed and delivered to the Company such representations or agreements as the Administrator deems necessary or appropriate to satisfy any Applicable Laws. The Company’s inability to obtain authority from any regulatory body having jurisdiction, which the Administrator determines is necessary to the lawful issuance and sale of any securities, will relieve the Company of any liability for failing to issue or sell such Shares as to which such requisite authority has not been obtained.

 

9.8 Acceleration. The Administrator may at any time provide that any Award will become immediately vested and fully or partially exercisable, free of some or all restrictions or conditions, or otherwise fully or partially realizable.

 

9.9 Cash Settlement. Without limiting the generality of any other provision of the Plan, the Administrator may provide, in an Award Agreement or subsequent to the grant of an Award, in its discretion, that any Award may be settled in cash, Shares or a combination thereof.

 

9.10 Broker-Assisted Sales. In the event of a broker-assisted sale of Shares in connection with the payment of amounts owed by a Participant under or with respect to the Plan or Awards, including amounts to be paid under the final sentence of Section 9.5: (a) any Shares to be sold through the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b) such Shares may be sold as part of a block trade with other Participants in the Plan in which all participants receive an average price; (c) the applicable Participant will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Participant agrees to indemnify and hold the Company and its Subsidiaries harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the extent the Company, its Subsidiaries or their designee receives proceeds of such sale that exceed the amount owed, the Company or its Subsidiary will pay such excess in cash to the applicable Participant as soon as reasonably practicable; (e) the Company, its Subsidiaries and their designees are under no obligation to arrange for such sale at any particular price; and (f) in the event the proceeds of such sale are insufficient to satisfy the Participant’s applicable obligation, the Participant may be required to pay immediately upon demand to the Company, its Subsidiaries or their designee an amount in cash sufficient to satisfy any remaining portion of the Participant’s obligation.

 

ARTICLE X.
Miscellaneous

 

10.1 No Right to Employment or Other Status. No person will have any claim or right to be granted an Award, and the grant of an Award will not be construed as giving a Participant the right to continued employment or any other relationship with the Company or any of its Subsidiaries. The Company and its Subsidiaries expressly reserve the right at any time to dismiss or otherwise terminate their respective relationships with a Participant free from any liability or claim under the Plan or any Award, except as expressly provided in an Award Agreement or in the Plan.

 

 

10.2 No Rights as Stockholder; Certificates. Subject to the Award Agreement, no Participant or Designated Beneficiary will have any rights as a stockholder with respect to any Shares to be distributed under an Award until becoming the record holder of such Shares. Notwithstanding any other provision of the Plan, unless the Administrator otherwise determines or Applicable Laws require, the Company will not be required to deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares may be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator). The Company may place legends on stock certificates issued under the Plan that the Administrator deems necessary or appropriate to comply with Applicable Laws.

 

10.3 Effective Date and Term of Plan. Unless earlier terminated by the Board, the Plan will become effective on the date on which the Closing occurs (the “Effective Date”) and will remain in effect until the tenth anniversary of the Effective Date, but Awards previously granted may extend beyond that date in accordance with the Plan. Notwithstanding anything to the contrary in the Plan, an Incentive Stock Option may not be granted under the Plan after 10 years from the earlier of (a) the date the Board adopted the Plan or (b) the date the Company’s stockholders approved the Plan. If the Plan is not approved by the Company’s stockholders, the Plan will not become effective and no Awards will be granted under the Plan.

 

10.4 Amendment of Plan. The Board may amend, suspend or terminate the Plan at any time; provided that no amendment, other than (a) as permitted by the applicable Award Agreement, (b) as provided under Sections 10.6 and 10.15, or (c) an amendment to increase the Overall Share Limit, may materially and adversely affect any Award outstanding at the time of such amendment without the affected Participant’s consent. No Awards may be granted under the Plan during any suspension period or after the Plan’s termination. Awards outstanding at the time of any Plan suspension or termination will continue to be governed by the Plan and the Award Agreement, as in effect before such suspension or termination. The Board will obtain stockholder approval of any Plan amendment to increase the Non-Employee Director Limit or to the extent necessary to comply with Applicable Laws.

 

10.5 Provisions for Foreign Participants. The Administrator may modify Awards granted to Participants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to address differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.

 

10.6 Section 409A.

 

(a) General. To the extent that the Administrator determines that any Award granted under the Plan is subject to Section 409A, the Award Agreement evidencing such Award shall incorporate the terms and conditions required by Section 409A. To the extent applicable, the Plan and the Award Agreements shall be interpreted in accordance with Section 409A, such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any Award Agreement to the contrary, the Administrator may, without a Participant’s consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of Awards, including any such actions intended to (i) exempt this Plan or any Award from Section 409A, or (ii) comply with Section 409A, including regulations, guidance, compliance programs and other interpretative authority that may be issued after an Award’s grant date. The Company makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Company will have no obligation under this Section 10.6 or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any Award and will have no liability to any Participant or any other person if any Award, compensation or other benefits under the Plan are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes, penalties or interest under Section 409A. Notwithstanding any contrary provision of the Plan or any Award Agreement, any payment of “nonqualified deferred compensation” under the Plan that may be made in installments shall be treated as a right to receive a series of separate and distinct payments.

 

 

(b) Separation from Service. If an Award is subject to and constitutes “nonqualified deferred compensation” under Section 409A, any payment or settlement of such Award upon a termination of a Participant’s Service Provider relationship will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participant’s “separation from service” (within the meaning of Section 409A), whether such “separation from service” occurs upon or after the termination of the Participant’s Service Provider relationship. For purposes of this Plan or any Award Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms means a “separation from service.”

 

(c) Payments to Specified Employees. Notwithstanding any contrary provision in the Plan or any Award Agreement, any payment(s) of “nonqualified deferred compensation” required to be made under an Award subject to Section 409A to a “specified employee” (as defined under Section 409A and as the Administrator determines) due to his or her “separation from service” will, to the extent necessary to avoid taxes under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such “separation from service” (or, if earlier, until the specified employee’s death) and will instead be paid (as set forth in the Award Agreement) on the day immediately following such six-month period or as soon as administratively practicable thereafter (without interest). Any payments of “nonqualified deferred compensation” under such Award payable more than six months following the Participant’s “separation from service” will be paid at the time or times the payments are otherwise scheduled to be made.

 

10.7 Limitations on Liability. Notwithstanding any other provisions of the Plan, no individual acting as a director, officer, other employee or agent of the Company or any Subsidiary will be liable to any Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss, liability, or expense incurred in connection with the Plan or any Award, and such individual will not be personally liable with respect to the Plan because of any contract or other instrument executed in his, her or its capacity as an Administrator, director, officer, other employee or agent of the Company or any Subsidiary. The Company will indemnify and hold harmless each director, officer, other employee and agent of the Company or any Subsidiary that has been or will be granted or delegated any duty or power relating to the Plan’s administration or interpretation, against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with the Administrator’s approval) arising from any act or omission concerning this Plan unless arising from such person’s own fraud or bad faith.

 

10.8 Lock-Up Period. The Company may, at the request of any underwriter representative or otherwise, in connection with registering the offering of any Company securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or otherwise transferring any Shares or other Company securities during a period of up to 180 days following the effective date of a Company registration statement filed under the Securities Act, or such longer period as determined by the underwriter.

 

10.9 Data Privacy. As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this section by and among the Company and its Subsidiaries and affiliates exclusively for implementing, administering and managing the Participant’s participation in the Plan. The Company and its Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participant’s name, address and telephone number; birthdate; social security number, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company or its Subsidiaries and affiliates; and Award details, to implement, manage and administer the Plan and Awards (the “Data”). The Company and its Subsidiaries and affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Participant’s participation in the Plan, and the Company and its Subsidiaries and affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These recipients may be located in the Participant’s country, or elsewhere, and the Participant’s country may have different data privacy laws and protections than the recipients’ country. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participant’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participant’s participation in the Plan. A Participant may, at any time, view the Data that the Company and its Subsidiaries hold regarding such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any necessary corrections to the Data regarding the Participant or refuse or withdraw the consents provided for in this Section 10.9 in writing, without cost, by contacting the local human resources representative. If the Participant refuses or withdraws the consents provided for in this Section 10.9, the Company may cancel Participant’s ability to participate in the Plan and, in the Administrator’s discretion, the Participant may forfeit any outstanding Awards. For more information on the consequences of refusing or withdrawing consent, Participants may contact their local human resources representative.

 

 

10.10 Severability. If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.

 

10.11 Governing Documents. If any contradiction occurs between the Plan and any Award Agreement or other written agreement between a Participant and the Company (or any Subsidiary) that the Administrator has approved, the Plan will govern, unless it is expressly specified in such Award Agreement or other written document that the specific provision of the Plan will not apply. For clarity, the foregoing sentence shall not limit the applicability of any additive language contained in an Award Agreement or other written agreement which provides supplemental or additional terms not inconsistent with the Plan.

 

10.12 Governing Law. The Plan and all Awards will be governed by and interpreted in accordance with the laws of the State of Delaware, disregarding any state’s choice-of-law principles requiring the application of a jurisdiction’s laws other than the State of Delaware.

 

10.13 Claw-back Provisions. All Awards (including, without limitation, any proceeds, gains or other economic benefit actually or constructively received by a Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the provisions of any claw-back policy implemented by the Company, including, without limitation, any claw-back policy adopted to comply with Applicable Laws (including the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) as and to the extent set forth in such claw-back policy or the Award Agreement.

 

10.14 Titles and Headings. The titles and headings in the Plan are for convenience of reference only and, if any conflict, the Plan’s text, rather than such titles or headings, will control.

 

10.15 Conformity to Securities Laws. Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Laws. Notwithstanding anything herein to the contrary, the Plan and all Awards will be administered only in conformance with Applicable Laws. To the extent Applicable Laws permit, the Plan and all Award Agreements will be deemed amended as necessary to conform to Applicable Laws.

 

 

10.16 Unfunded Status of Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any rights that are greater than those of a general creditor of the Company or any Subsidiary.

 

10.17 Relationship to Other Benefits. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except as expressly provided in writing in such other plan or an agreement thereunder.

 

ARTICLE XI.
Definitions

 

As used in the Plan, the following words and phrases will have the following meanings:

 

11.1 “Administrator” means the Board or a Committee to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee. Notwithstanding anything herein to the contrary, the Board shall conduct the general administration of the Plan with respect to Awards granted to non-employee Directors and, with respect to such Awards, the term “Administrator” as used in the Plan shall mean and refer to the Board.

 

11.2 “Agent” means the brokerage firm, bank or other financial institution, entity or person(s), if any, engaged, retained, appointed or authorized to act as the agent of the Company or a Participant with regard to the Plan.

 

11.3 “Applicable Laws” means the requirements relating to the administration of equity incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws and rules of any foreign country or other jurisdiction where Awards are granted.

 

11.4 “Award” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Dividend Equivalents, or Other Stock or Cash Based Awards.

 

11.5 “Award Agreement” means a written agreement evidencing an Award, which may be electronic, that contains such terms and conditions as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.

 

11.6 “Board” means the Board of Directors of the Company.

 

11.7 “Cause” means, in respect of a Participant, either (a) the definition of “Cause” contained in the Participant’s Award Agreement or an effective, written service or employment agreement between the Participant and the Company or a Subsidiary of the Company; or (b) if no such agreement exists or such agreement does not define Cause, then Cause shall mean (i) the Participant’s unauthorized use or disclosure of confidential information or trade secrets of the Company or any of its Subsidiaries or any material breach of a written agreement between the Participant and the Company or any of its Subsidiaries, including without limitation a material breach of any employment, confidentiality, non-compete, non-solicit or similar agreement; (ii) the Participant’s commission of, indictment for or the entry of a plea of guilty or nolo contendere by the Participant to, a felony under the laws of the United States or any state thereof or any crime involving dishonesty or moral turpitude (or any similar crime in any jurisdiction outside the United States); (iii) the Participant’s negligence or willful misconduct in the performance of the Participant’s duties or the Participant’s willful or repeated failure or refusal to substantially perform assigned duties; (iv) any act of fraud, embezzlement, material misappropriation or dishonesty committed by the Participant against the Company or any of its Subsidiaries; or (v) any acts, omissions or statements by a Participant which the Company determines to be materially detrimental or damaging to the reputation, operations, prospects or business relations of the Company or any of its Subsidiaries. The findings and decision of the Administrator with respect to any Cause determination will be final and binding for all purposes.

 

 

11.8 “Change in Control” means and includes each of the following:

 

(a) A transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities and Exchange Commission or a transaction or series of transactions that meets the requirements of clauses (i) and (ii) of subsection (c) below) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its Subsidiaries, an employee benefit plan maintained by the Company or any of its Subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or

 

(b) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in subsections (a) or (c)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the Directors then still in office who either were Directors at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

(c) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction:

 

(i) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

 

(ii) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (ii) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.

 

 

Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or portion of any Award) that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event described in subsection (a), (b) or (c) with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).

 

The Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.

 

11.9 “Closing” means the closing of the transactions contemplated by that certain Business Combination Agreement, dated October 4, 2023, by and among Golden Arrow Merger Corp., Beam Merger Sub, Inc. and Bolt Threads, Inc.

 

11.10 “Code” means the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

 

11.11 “Committee” means one or more committees or subcommittees of the Board, which may include one or more Company directors or executive officers, to the extent Applicable Laws permit. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a “non-employee director” within the meaning of Rule 16b-3; however, a Committee member’s failure to qualify as a “non-employee director” within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.

 

11.12 “Common Stock” means the common stock of the Company.

 

11.13 “Company” means Bolt Projects Holdings, Inc., a Delaware corporation, or any successor.

 

11.14  “Consultant” means any consultant or advisor engaged by the Company or any of its Subsidiaries to render services to such entity that qualifies as a consultant or advisor under the applicable rules of Form S-8 Registration Statements.

 

11.15 “Designated Beneficiary” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s effective designation, “Designated Beneficiary” will mean the Participant’s estate.

 

11.16 “Director” means a Board member.

 

11.17 “Disability” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.

 

 

11.18 “Dividend Equivalents” means a right granted to a Participant under the Plan to receive the equivalent value (in cash or Shares) of dividends paid on Shares.

 

11.19 “Employee” means any employee of the Company or its Subsidiaries.

 

11.20 “Equity Restructuring” means, as determined by the Administrator, a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off or recapitalization through a large, nonrecurring cash dividend, or other large, nonrecurring cash dividend, that affects the number or kind of Shares (or other securities of the Company) or the share price of Common Stock (or other securities of the Company) and causes a change in the per share value of the Common Stock underlying outstanding Awards.

 

11.21 “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

11.22 “Fair Market Value” means, as of any date, the value of a Share determined as follows: (a) if the Common Stock is listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Common Stock as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Common Stock is not traded on a stock exchange but is quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Common Stock, the Administrator will determine the Fair Market Value in its discretion.

 

11.23 “Greater Than 10% Stockholder” means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or its parent or subsidiary corporation, as defined in Section 424(e) and (f) of the Code, respectively.

 

11.24 “Incentive Stock Option” means an Option intended to qualify as an “incentive stock option” as defined in Section 422 of the Code.

 

11.25 “Non-Qualified Stock Option” means an Option, or portion thereof, not intended or not qualifying as an Incentive Stock Option.

 

11.26  “Option” means an option to purchase Shares, which will either be an Incentive Stock Option or a Non-Qualified Stock Option.

 

11.27 “Other Stock or Cash Based Awards” means cash awards, awards of Shares, and other awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property awarded to a Participant under Article VII.

 

11.28 “Overall Share Limit” means the sum of (a) 7,184,418 Shares; and (b) an annual increase on the first day of each calendar year beginning January 1, 2025 and ending on and including January 1, 2034, equal to the lesser of (i) a number of Shares equal to five percent (5%) of the aggregate number of Shares outstanding on the final day of the immediately preceding calendar year and (ii) such smaller number of Shares as is determined by the Board.

 

11.29  “Participant” means a Service Provider who has been granted an Award.

 

 

11.30 “Performance Criteria” means the criteria (and adjustments) that the Administrator may select for an Award to establish performance goals for a performance period, which may include (but is not limited to) the following: net earnings or losses (either before or after one or more of interest, taxes, depreciation, amortization, and non-cash equity-based compensation expense); gross or net sales or revenue or sales or revenue growth; net income (either before or after taxes) or adjusted net income; profits (including but not limited to gross profits, net profits, profit growth, net operation profit or economic profit), profit return ratios or operating margin; operating efficiency; budget or operating earnings (either before or after taxes or before or after allocation of corporate overhead and bonus); cash flow (including operating cash flow and free cash flow or cash flow return on capital); return on assets; return on capital or invested capital; cost of capital; return on stockholders’ equity; total stockholder return; return on sales; costs, reductions in costs and cost control measures; expenses; working capital; earnings or loss per share; adjusted earnings or loss per share; price per share or dividends per share (or appreciation in or maintenance of such price or dividends); regulatory achievements or compliance; implementation, completion or attainment of objectives relating to research, development, regulatory, commercial, or strategic milestones or developments; market share; economic value or economic value added models; division, group or corporate financial goals; customer satisfaction/growth; customer service; employee satisfaction; recruitment and maintenance of personnel; human resources management; supervision of litigation and other legal matters; strategic partnerships, collaborations and transactions; financial ratios (including those measuring liquidity, activity, profitability or leverage); debt levels or reductions; sales-related goals; financing and other capital raising transactions; cash on hand; acquisition, licensing or divestiture activity; investment sourcing activity; and marketing initiatives, any of which may be measured in absolute terms or as compared to any incremental increase or decrease. Such performance goals also may be (a) based solely by reference to the Company’s performance or the performance of a Subsidiary, division, business segment or business unit of the Company or a Subsidiary, (b) based upon performance relative to performance of other companies or upon comparisons of any of the indicators of performance relative to performance of other companies, (c) based on GAAP or non-GAAP metrics, and/or (d) adjusted to reflect the impact of unusual or non-recurring transactions, extraordinary events or otherwise as determined by the Administrator.

 

11.31 “Plan” means this 2024 Incentive Award Plan, as may be amended from time to time.

 

11.32 “Restricted Stock” means Shares awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.

 

11.33 “Restricted Stock Unit” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Administrator to be of equal value as of such settlement date awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.

 

11.34 “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act.

 

11.35 “Section 409A” means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority thereunder.

 

11.36 “Securities Act” means the Securities Act of 1933, as amended.

 

11.37 “Service Provider” means an Employee, Consultant or Director.

 

11.38 “Shares” means shares of Common Stock.

 

11.39 “Stock Appreciation Right” means a stock appreciation right granted under Article V.

 

 

11.40 “Subsidiary” means any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.

 

11.41 “Substitute Awards” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.

 

11.42 “Termination of Service” means the date the Participant ceases to be a Service Provider.

 

* * * * *

 

 

 

19

 

Exhibit 10.19

 

 

Article I.
PURPOSE

 

The purpose of this Plan is to assist Eligible Employees of the Company and its Designated Subsidiaries in acquiring a stock ownership interest in the Company.

 

The Plan consists of two components: (i) the Section 423 Component and (ii) the Non-Section 423 Component. The Section 423 Component is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code and shall be administered, interpreted and construed in a manner consistent with the requirements of Section 423 of the Code. The Non-Section 423 Component authorizes the grant of rights which need not qualify as rights granted pursuant to an “employee stock purchase plan” under Section 423 of the Code. Rights granted under the Non-Section 423 Component shall be granted pursuant to separate Offerings containing such sub-plans, appendices, rules or procedures as may be adopted by the Administrator and designed to achieve tax, securities laws or other objectives for Eligible Employees and Designated Subsidiaries but shall not be intended to qualify as an “employee stock purchase plan” under Section 423 of the Code. Except as otherwise determined by the Administrator or provided herein, the Non-Section 423 Component will operate and be administered in the same manner as the Section 423 Component. Offerings intended to be made under the Non-Section 423 Component will be designated as such by the Administrator at or prior to the time of such Offering.

 

For purposes of this Plan, the Administrator may designate separate Offerings under the Plan in which Eligible Employees will participate. The terms of these Offerings need not be identical, even if the dates of the applicable Offering Period(s) in each such Offering are identical, provided that the terms of participation are the same within each separate Offering under the Section 423 Component (as determined under Section 423 of the Code). Solely by way of example and without limiting the foregoing, the Company could, but shall not be required to, provide for simultaneous Offerings under the Section 423 Component and the Non-Section 423 Component of the Plan.

 

Article II.
DEFINITIONS AND CONSTRUCTION

 

Wherever the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise.

 

2.1 “Administrator” means the entity that conducts the general administration of the Plan as provided in Article XI.

 

2.2 “Agent” means the brokerage firm, bank or other financial institution, entity or person(s), if any, engaged, retained, appointed or authorized to act as the agent of the Company or an Employee with regard to the Plan.

 

2.3 “Applicable Law” means the requirements relating to the administration of equity incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which Shares are listed or quoted and the applicable laws and rules of any foreign country or other jurisdiction where rights under this Plan are granted.

 

 

2.4 “Board” means the Board of Directors of the Company.

 

2.5 “Closing” means the closing of the transactions contemplated by that certain Business Combination Agreement, dated October 4, 2023, by and among Golden Arrow Merger Corp., Beam Merger Sub, Inc. and Bolt Threads, Inc.

 

2.6 “Code” means the U.S. Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

 

2.7 “Common Stock” means the common stock of the Company and such other securities of the Company that may be substituted therefore.

 

2.8 “Company” means Bolt Projects Holdings, Inc., a Delaware corporation, or any successor.

 

2.9 “Compensation” of an Eligible Employee means, unless otherwise determined by the Administrator, the gross cash compensation paid by the Company or its Subsidiary (as applicable) to such Eligible Employee as compensation for services to the Company or any Designated Subsidiary, including for clarity, any prior-week adjustments; commissions; cash incentive compensation and one-time bonuses (e.g., retention or sign on bonuses); overtime payments; or compensation paid by the Company or any Designated Subsidiary in respect of periods of absence from work; and excluding any education or tuition reimbursements; travel expenses; business and moving reimbursements; income received in connection with any stock options, stock appreciation rights, restricted stock, restricted stock units or other compensatory equity awards; fringe benefits; other special payments and all contributions made by the Company or any Designated Subsidiary for the Employee’s benefit under any employee benefit plan now or hereafter established.

 

2.10 “Designated Beneficiary” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s effective designation, “Designated Beneficiary” will mean the Participant’s estate.

 

2.11 “Designated Subsidiary” means any Subsidiary designated by the Administrator in accordance with Section 11.2(b), such designation to specify whether such participation is in the Section 423 Component or Non-Section 423 Component. A Designated Subsidiary may participate in either the Section 423 Component or Non-Section 423 Component, but not both.

 

2.12 “Effective Date” means the date on which the Closing occurs.

 

2.13 “Eligible Employee” means an Employee who does not, immediately after any rights under this Plan are granted, own (directly or through attribution) stock possessing 5% or more of the total combined voting power or value of all classes of Shares and other securities of the Company, a Parent or a Subsidiary (as determined under Section 423(b)(3) of the Code). For purposes of the foregoing, the rules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the stock ownership of an individual, and stock that an Employee may purchase under outstanding options shall be treated as stock owned by the Employee. Notwithstanding the foregoing, the Administrator may provide in an Offering Document that an Employee shall not be eligible to participate in an Offering Period under the Section 423 Component if: (a) such Employee is a highly compensated employee within the meaning of Section 423(b)(4)(D) of the Code; (b) such Employee has not met a service requirement designated by the Administrator pursuant to Section 423(b)(4)(A) of the Code (which service requirement may not exceed two years); (c) such Employee’s customary employment is for 20 hours per week or less; (d) such Employee’s customary employment is for less than five months in any calendar year; and/or (e) such Employee is a citizen or resident of a foreign jurisdiction and the grant of a right to purchase Shares under the Plan to such Employee would be prohibited under the laws of such foreign jurisdiction or the grant of a right to purchase Shares under the Plan to such Employee in compliance with the laws of such foreign jurisdiction would cause the Plan to violate the requirements of Section 423 of the Code, as determined by the Administrator in its sole discretion; provided, that any exclusion in clauses (a), (b), (c), (d) or (e) shall be applied in an identical manner under each Offering Period to all Employees, in accordance with Treasury Regulation Section 1.423-2(e).

 

 

Further notwithstanding the foregoing, with respect to the Non-Section 423 Component, the first sentence in this definition shall apply in determining who is an “Eligible Employee,” except (i) the Administrator may further limit eligibility within the Company or within a Designated Subsidiary so as to only designate certain Employees of the Company or of a Designated Subsidiary as “Eligible Employees”, and (ii) to the extent the restrictions in the first sentence in this definition are not consistent with any applicable local law, such applicable local law shall control.

 

2.14  “Employee” means any individual who renders services to the Company or any Designated Subsidiary in the status of an employee, and, with respect to the Section 423 Component, a person who is an employee of the Company or any Designated Subsidiary within the meaning of Section 3401(c) of the Code. For purposes of an individual’s participation in, or other rights under the Plan, all determinations by the Company shall be final, binding and conclusive, notwithstanding that any court of law or governmental agency subsequently makes a contrary determination. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company or Designated Subsidiary and meeting the requirements of Treasury Regulation Section 1.421-1(h)(2). Where the period of leave exceeds three months and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three-month period.

 

2.15 “Enrollment Date” means the first Trading Day of each Offering Period.

 

2.16 “Fair Market Value” means, as of any date, the value of Shares determined as follows: (a) if the Shares are listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Shares as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Shares are not traded on a stock exchange but are quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Shares, the Administrator will determine the Fair Market Value in its discretion.

 

2.17 “Non-Section 423 Component” means those Offerings under the Plan, together with the sub-plans, appendices, rules or procedures, if any, adopted by the Administrator as a part of this Plan, in each case, pursuant to which rights to purchase Shares during an Offering Period may be granted to Eligible Employees that need not satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” that are set forth under Section 423 of the Code.

 

2.18 “Offering” means an offer by the Company under the Plan to Eligible Employees of a right to purchase Shares that may be exercised during an Offering Period, as further described in Article IV hereof. Unless otherwise specified by the Administrator, each Offering to the Eligible Employees of the Company or a Designated Subsidiary shall be deemed a separate Offering, even if the dates and other terms of the applicable Offering Periods of each such Offering are identical, and the provisions of the Plan will separately apply to each Offering. To the extent permitted by Treasury Regulation § 1.423-2(a)(1), the terms of each separate Offering under the Section 423 Component need not be identical, provided that the terms of the Section 423 Component and an Offering thereunder together satisfy Treasury Regulation § 1.423-2(a)(2) and (a)(3).

 

 

2.19 “Offering Document” has the meaning given to such term in Section 4.1.

 

2.20 “Offering Period” has the meaning given to such term in Section 4.1.

 

2.21 “Parent” means any corporation, other than the Company, in an unbroken chain of corporations ending with the Company if, at the time of the determination, each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

 

2.22 “Participant” means any Eligible Employee who has executed a subscription agreement and been granted rights to purchase Shares pursuant to the Plan.

 

2.23 “Plan” means this 2024 Employee Stock Purchase Plan, including both the Section 423 Component and Non-Section 423 Component and any other sub-plans or appendices hereto, as amended from time to time.

 

2.24  “Purchase Date” means the last Trading Day of each Purchase Period or such other date as determined by the Administrator and set forth in the Offering Document.

 

2.25 “Purchase Period” shall refer to one or more specified periods within an Offering Period, as designated in the applicable Offering Document; provided, however, that, if no Purchase Period is designated by the Administrator in the applicable Offering Document, the Purchase Period for each Offering Period covered by such Offering Document shall be the same as the applicable Offering Period.

 

2.26 “Purchase Price” means the purchase price designated by the Administrator in the applicable Offering Document (which purchase price, for purposes of the Section 423 Component, shall not be less than 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower); provided, however, that, if no purchase price is designated by the Administrator in the applicable Offering Document, the purchase price for the Offering Periods covered by such Offering Document shall be 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower; provided, further, that the Purchase Price may be adjusted by the Administrator pursuant to Article VIII and shall not be less than the par value of a Share.

 

2.27 “Section 423 Component” means those Offerings under the Plan, together with the sub-plans, appendices, rules or procedures, if any, adopted by the Administrator as a part of this Plan or any Offering(s), in each case, pursuant to which rights to purchase Shares during an Offering Period may be granted to Eligible Employees that are intended to satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” that are set forth under Section 423 of the Code.

 

2.28  “Securities Act” means the U.S. Securities Act of 1933, as amended.

 

2.29 “Share” means a share of Common Stock.

 

 

2.30 “Subsidiary” means any corporation, other than the Company, in an unbroken chain of corporations beginning with the Company if, at the time of the determination, each of the corporations other than the last corporation in an unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain; provided, however, that a limited liability company or partnership may be treated as a Subsidiary to the extent either (a) such entity is treated as a disregarded entity under Treasury Regulation Section 301.7701-3(a) by reason of the Company or any other Subsidiary that is a corporation being the sole owner of such entity, or (b) such entity elects to be classified as a corporation under Treasury Regulation Section 301.7701-3(a) and such entity would otherwise qualify as a Subsidiary. In addition, with respect to the Non-Section 423 Component, Subsidiary shall include any corporate or non-corporate entity in which the Company has a direct or indirect equity interest or significant business relationship.

 

2.31 “Trading Day” means a day on which national stock exchanges in the United States are open for trading.

 

Article III.
SHARES SUBJECT TO THE PLAN

 

3.1 Number of Shares. Subject to Article VIII, the aggregate number of Shares that may be issued pursuant to rights granted under the Plan shall be 957,922 Shares. In addition to the foregoing, subject to Article VIII, on the first day of each calendar year beginning on January 1, 2025 and ending on and including January 1, 2034, the number of Shares available for issuance under the Plan shall be increased by that number of Shares equal to the lesser of (a) one percent (1%) of the aggregate number of Shares outstanding on the final day of the immediately preceding calendar year and (b) such smaller number of Shares as determined by the Board. If any right granted under the Plan shall for any reason terminate without having been exercised, the Shares not purchased under such right shall again become available for issuance under the Plan. Notwithstanding anything in this Section 3.1 to the contrary, the number of Shares that may be issued or transferred pursuant to the rights granted under the Section 423 Component of the Plan shall not exceed an aggregate of 865,696 Shares, subject to Article VIII.

 

3.2 Shares Distributed. Any Shares distributed pursuant to the Plan may consist, in whole or in part, of authorized and unissued Shares, treasury shares or Shares purchased on the open market.

 

Article IV.
Offering Periods; Offering Documents; Purchase Dates

 

4.1 Offering Periods. The Administrator may from time to time grant or provide for the grant of rights to purchase Shares under the Plan to Eligible Employees during one or more periods (each, an “Offering Period”) selected by the Administrator. The terms and conditions applicable to each Offering Period shall be set forth in an “Offering Document” adopted by the Administrator from time to time, which Offering Document shall be in such form and shall contain such terms and conditions as the Administrator shall deem appropriate and shall be incorporated by reference into and made part of the Plan. The Administrator shall establish in each Offering Document one or more Purchase Periods within such Offering Period during which rights granted under the Plan shall be exercised and purchases of Shares carried out in accordance with such Offering Document and the Plan. The provisions of separate Offerings or Offering Periods under the Plan may be partially or wholly concurrent and need not be identical.

 

4.2 Offering Documents. Each Offering Document with respect to an Offering Period shall specify (through incorporation of the provisions of this Plan by reference or otherwise):

 

(a) the length of the Offering Period, which period shall not exceed twenty-seven (27) months;

 

 

(b) the length of the Purchase Period(s) within the Offering Period, which period(s), in the absence of a contrary designation by the Administrator, shall not exceed six (6) months;

 

(c) in connection with each Offering Period that contains more than one Purchase Period, the maximum aggregate number of Shares which may be purchased by any Eligible Employee during each Purchase Period (if applicable), which, in the absence of a contrary designation by the Administrator, shall be 3,000 Shares (and which, for the Section 423 Component Offering Periods, shall be subject to the limitations described in Section 5.5 below);

 

(d) the maximum number of Shares that may be purchased by any Eligible Employee during such Offering Period (if applicable), which, in the absence of a contrary designation by the Administrator, shall be 12,000 Shares (and which, for the Section 423 Component Offering Periods, shall be subject to the limitations described in Section 5.5 below); and

 

(e) such other provisions as the Administrator determines are appropriate, subject to the Plan.

 

Article V.
ELIGIBILITY AND PARTICIPATION

 

5.1 Eligibility. Any Eligible Employee who shall be employed by the Company or a Designated Subsidiary on a given Enrollment Date for an Offering Period shall be eligible to participate in the Plan during such Offering Period, subject to the requirements of this Article V and, for the Section 423 Component, the limitations imposed by Section 423(b) of the Code.

 

5.2 Enrollment in Plan.

 

(a) Except as otherwise set forth herein or in an Offering Document or determined by the Administrator, an Eligible Employee may become a Participant in the Plan for an Offering Period by delivering a subscription agreement to the Company by such time prior to the Enrollment Date for such Offering Period (or such other date specified in the Offering Document) designated by the Administrator and in such form as the Company provides.

 

(b) Except as otherwise determined by the Administrator, each subscription agreement shall designate either a whole percentage or a whole dollar amount of such Eligible Employee’s Compensation to be withheld by the Company or the Designated Subsidiary employing such Eligible Employee on each payday during the Offering Period as payroll deductions under the Plan. The percentage of Compensation designated as payroll deductions by an Eligible Employee may not be less than 1% and may not be more than the maximum percentage specified by the Administrator in the applicable Offering Document (which maximum percentage shall be 15% in the absence of any such designation); provided that, in no event shall the actual amount withheld on any payday hereunder exceed the net amount payable to the Eligible Employee on such payday after taxes and any other applicable deductions therefrom (and if amounts to be withheld hereunder would otherwise result in a negative payment to the Eligible Employee on such payday, the amount to be withheld hereunder shall instead be reduced by the least amount necessary to avoid a negative payment amount for the Eligible Employee on such payday, as determined by the Administrator). The payroll deductions made for each Participant shall be credited to an account for such Participant under the Plan and shall be deposited with the general funds of the Company.

 

 

(c) Unless otherwise provided in the terms of an Offering Document, a Participant may decrease the percentage of Compensation designated in his or her subscription agreement, subject to the limits of this Section 5.2, or may suspend his or her payroll deductions, in any case, at any time during an Offering Period; provided, however, that the Administrator may limit or eliminate the type or number of changes a Participant may make to his or her payroll deduction elections during each Offering Period in the applicable Offering Document (and in the absence of any specific designation by the Administrator, a Participant shall be allowed to decrease (but not increase) or suspend his or her payroll deduction elections, in either case, twice during each Offering Period). Any such change or suspension of payroll deductions shall be effective with the first full payroll period starting at least five (5) business days after the Company’s receipt of the new subscription agreement (or such shorter or longer period as may be specified by the Administrator in the applicable Offering Document). If a Participant suspends his or her payroll deductions during an Offering Period, such Participant’s cumulative unapplied payroll deductions prior to the suspension (if any) shall remain in his or her account and shall be applied to the purchase of Shares on the next occurring Purchase Date. For clarity, if a Participant who suspends participation in an Offering Period ceases to be an Eligible Employee or he or she withdraws from participation in such Offering Period, in either case, prior to the Purchase Date next-following his or her suspension of participation in the Offering Period, in any case, such Participant’s cumulative unapplied payroll deductions shall be returned to him or her in accordance with Article VII.

 

(d) Except as otherwise set forth in herein or in an Offering Document or as otherwise determined by the Administrator, a Participant may participate in the Plan only by means of payroll deduction and may not make contributions by lump sum payment for any Offering Period.

 

5.3 Payroll Deductions. Except as otherwise provided herein or in the applicable Offering Document, payroll deductions for a Participant shall commence on the first payday following the Enrollment Date and shall end on the last payday in the Offering Period to which the Participant’s authorization is applicable, unless sooner terminated by the Participant as provided in Article VII or suspended by the Participant or the Administrator as provided in Section 5.2 and Section 5.6, respectively. Notwithstanding any other provisions of the Plan to the contrary, in any non-U.S. jurisdiction where participation in the Plan through payroll deductions is prohibited, the Administrator may provide that an Eligible Employee may elect to participate through contributions to the Participant’s account under the Plan in a form acceptable to the Administrator in lieu of or in addition to payroll deductions; provided, however, that, for any Offering under the Section 423 Component, the Administrator shall take into consideration any limitations under Section 423 of the Code when applying an alternative method of contribution.

 

5.4 Effect of Enrollment. A Participant’s completion of a subscription agreement will enroll such Participant in the Plan for each subsequent Offering Period on the terms contained therein until the Participant either submits a new subscription agreement, withdraws from participation under the Plan as provided in Article VII or otherwise becomes ineligible to participate in the Plan.

 

5.5 Limitation on Purchase of Shares. An Eligible Employee may be granted rights under the Section 423 Component only if such rights, together with any other rights granted to such Eligible Employee under “employee stock purchase plans” of the Company, any Parent or any Subsidiary, as specified by Section 423(b)(8) of the Code, do not permit such employee’s rights to purchase stock of the Company or any Parent or Subsidiary to accrue at a rate that exceeds $25,000 of the fair market value of such stock (determined as of the first day of the Offering Period during which such rights are granted) for each calendar year in which such rights are outstanding at any time. This limitation shall be applied in accordance with Section 423(b)(8) of the Code.

 

5.6 Suspension of Payroll Deductions. Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 5.5 (with respect to the Section 423 Component) or the other limitations set forth in this Plan, a Participant’s payroll deductions may be suspended by the Administrator at any time during an Offering Period. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares by reason of Section 423(b)(8) of the Code, Section 5.5 or the other limitations set forth in this Plan shall be paid to such Participant in one lump sum in cash within 30 days after the Purchase Date.

 

 

5.7 Foreign Employees. In order to facilitate participation in the Plan, the Administrator may provide for such special terms, rules and procedures applicable to Participants who are citizens or residents of a foreign jurisdiction, or who are employed by a Designated Subsidiary outside of the United States, as the Administrator may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Except as permitted by Section 423 of the Code, with respect to the Section 423 Component, such special terms may not be more favorable than the terms of rights granted under the Section 423 Component to Eligible Employees who are residents of the United States. Such special terms may be set forth in an addendum to the Plan in the form of an appendix or sub-plan (which appendix or sub-plan may be designed to govern Offerings under the Section 423 Component or the Non-Section 423 Component, as determined by the Administrator). To the extent that the terms and conditions set forth in an appendix or sub-plan conflict with any provisions of the Plan, the provisions of the appendix or sub-plan shall govern except as otherwise set forth therein. The adoption of any such appendix or sub-plan shall be pursuant to Section 11.2(f) and any other applicable provision herein. Without limiting the foregoing, the Administrator is specifically authorized to adopt rules and procedures, with respect to Participants who are foreign nationals or employed in non-U.S. jurisdictions, regarding the exclusion of particular Subsidiaries from participation in the Plan, eligibility to participate, the definition of Compensation, handling of payroll deductions or other contributions by Participants, payment of interest, conversion of local currency, data privacy security, payroll tax, withholding procedures, establishment of bank or trust accounts to hold payroll deductions or contributions.

 

5.8 Leave of Absence. During leaves of absence approved by the Company meeting the requirements of Treasury Regulation Section 1.421-1(h)(2) under the Code, unless otherwise set forth in the terms of an Offering Document, a Participant may continue participation in the Plan by making cash payments to the Company on his or her normal payday equal to the Participant’s authorized payroll deduction.

 

Article VI.
grant and Exercise of rights

 

6.1 Grant of Rights. On the Enrollment Date of each Offering Period, each Eligible Employee participating in such Offering Period shall be granted a right to purchase the maximum number of Shares specified under Section 4.2, subject to the limits in Section 5.5, and shall have the right to buy, on each Purchase Date during such Offering Period (at the applicable Purchase Price), such number of whole Shares as is determined by dividing (a) such Participant’s payroll deductions accumulated prior to such Purchase Date and retained in the Participant’s account as of the Purchase Date, by (b) the applicable Purchase Price (rounded down to the nearest Share). The right shall expire on the last day of the Offering Period, or if earlier, the date on which the Participant withdraws in accordance with Section 7.1 or Section 7.3.

 

6.2 Exercise of Rights. On each Purchase Date, each Participant’s accumulated payroll deductions and any other additional payments specifically provided for herein or in the applicable Offering Document will be applied to the purchase of whole Shares, up to the maximum number of Shares permitted pursuant to the terms of the Plan and the applicable Offering Document, at the Purchase Price. No fractional Shares shall be issued upon the exercise of rights granted under the Plan, unless the Offering Document specifically provides otherwise. Any cash in lieu of fractional Shares remaining after the purchase of whole Shares upon exercise of a purchase right will be credited to a Participant’s account and carried forward and applied toward the purchase of whole Shares for the next following Offering Period. Shares issued pursuant to the Plan may be evidenced in such manner as the Administrator may determine and may be issued in certificated form or issued pursuant to book-entry procedures.

 

 

6.3 Pro Rata Allocation of Shares. If the Administrator determines that, on a given Purchase Date, the number of Shares with respect to which rights are to be exercised may exceed (a) the number of Shares that were available for issuance under the Plan on the Enrollment Date of the applicable Offering Period, or (b) the number of Shares available for issuance under the Plan on such Purchase Date, the Administrator may in its sole discretion provide that the Company shall make a pro rata allocation of the Shares available for purchase on such Enrollment Date or Purchase Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all Participants for whom rights to purchase Shares are to be exercised pursuant to this Article VI on such Purchase Date, and shall either (i) continue all Offering Periods then in effect, or (ii) terminate any or all Offering Periods then in effect pursuant to Article IX. The Company may make pro rata allocation of the Shares available on the Enrollment Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional Shares for issuance under the Plan by the Company’s stockholders subsequent to such Enrollment Date. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares shall be paid to such Participant without interest in one lump sum in cash as soon as reasonably practicable after the Purchase Date, or such earlier date as determined by the Administrator.

 

6.4 Withholding. At the time a Participant’s rights under the Plan are exercised, in whole or in part, or at the time some or all of the Shares issued under the Plan is disposed of, the Participant must make adequate provision for the Company’s federal, state, or other tax withholding obligations, if any, that arise upon the exercise of the right or the disposition of the Shares. At any time, the Company may, but shall not be obligated to, withhold from the Participant’s compensation or Shares received pursuant to the Plan the amount necessary for the Company to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Shares by the Participant.

 

6.5 Conditions to Issuance of Shares. The Company shall not be required to issue or deliver any certificate or certificates for, or make any book entries evidencing, Shares purchased upon the exercise of rights under the Plan prior to fulfillment of all of the following conditions: (a) the admission of such Shares to listing on all stock exchanges, if any, on which the Shares are then listed; (b) the completion of any registration or other qualification of such Shares under any state or federal law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body, that the Administrator shall, in its absolute discretion, deem necessary or advisable; (c) the obtaining of any approval or other clearance from any state or federal governmental agency that the Administrator shall, in its absolute discretion, determine to be necessary or advisable; (d) the payment to the Company of all amounts that it is required to withhold under federal, state or local law upon exercise of the rights, if any; and (e) the lapse of such reasonable period of time following the exercise of the rights as the Administrator may from time to time establish for reasons of administrative convenience.

 

Article VII.
WITHDRAWAL; CESSATION OF ELIGIBILITY

 

7.1 Withdrawal. A Participant may withdraw all but not less than all of the payroll deductions credited to his or her account and not yet used to exercise his or her rights under the Plan at any time by giving written notice to the Company in a form acceptable to the Company no later than two (2) weeks prior to the end of the then-applicable Purchase Period (or such shorter or longer period as may be specified by the Administrator in the applicable Offering Document). All of the Participant’s payroll deductions credited to his or her account during such Purchase Period and not yet used to exercise rights under the Plan shall be paid to such Participant as soon as reasonably practicable after receipt of notice of withdrawal, such Participant’s rights for the Offering Period shall be automatically terminated, and no further payroll deductions for the purchase of Shares shall be made for such Offering Period. If a Participant withdraws from an Offering Period (including by virtue of a suspension as described in Section 5.2(c) above), payroll deductions shall not resume at the beginning of any subsequent Offering Period unless the Participant is an Eligible Employee and timely delivers to the Company a new subscription agreement by the applicable enrollment deadline for any such subsequent Offering Period, as determined by the Administrator.

 

 

7.2 Future Participation. A Participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate in any similar plan that may hereafter be adopted by the Company or a Designated Subsidiary or in any subsequent Offering Period that commences on or after the Participant’s withdrawal from any Offering Period.

 

7.3 Cessation of Eligibility. Upon a Participant’s ceasing to be an Eligible Employee for any reason, he or she shall be deemed to have elected to withdraw from the Plan pursuant to this Article VII and the payroll deductions credited to such Participant’s account during the then-current Purchase Period shall be paid to such Participant or, in the case of his or her death, to the Participant’s Designated Beneficiary, within 30 days following such Participant’s ceasing to be an Eligible Employee, and such Participant’s rights for the Offering Period shall be automatically terminated. For clarity, if a Participant transfers employment from the Company or any Designated Subsidiary participating in either the Section 423 Component or Non-Section 423 Component to any Designated Subsidiary that is neither participating in the Section 423 Component nor the Non-Section 423 Component, then, in any case, such transfer shall be treated as a termination of employment under the Plan and the Participant shall be deemed to have withdrawn from the Plan pursuant to this Article VII and the payroll deductions credited to such Participant’s account during the then-current Purchase Period shall be paid to such Participant or, in the case of his or her death, to the Participant’s Designated Beneficiary, within 30 days following such Participant’s transfer of employment, and such Participant’s participation in the Offering Period shall be automatically terminated. If a Participant transfers employment from the Company or any Designated Subsidiary participating in the Section 423 Component to any Designated Subsidiary participating in the Non-Section 423 Component, such transfer shall not be treated as a termination of employment under the Plan, but the Participant shall immediately cease to participate in the Section 423 Component; however, any contributions made for the then-current Purchase Period in which such transfer occurs shall be transferred to the Non-Section 423 Component, and such Participant shall immediately join the then-current Offering under the Non-Section 423 Component upon the same terms and conditions in effect for the Participant’s participation in the Section 423 Component, except for such modifications otherwise applicable for Participants in such Offering. A Participant who transfers employment from any Designated Subsidiary participating in the Non-Section 423 Component to the Company or any Designated Subsidiary participating in the Section 423 Component shall not be treated as terminating the Participant’s employment under the Plan and shall remain a Participant in the Non-Section 423 Component until the earlier of (a) the end of the current Offering Period under the Non-Section 423 Component or (b) the Enrollment Date of the first Offering Period in which the Participant is eligible to participate following such transfer. Notwithstanding the foregoing, the Administrator may establish different rules to govern transfers of employment between entities participating in the Section 423 Component and the Non-Section 423 Component, consistent with the applicable requirements of Section 423 of the Code or other Applicable Law.

 

Article VIII.
Adjustments upon Changes in SHARES

 

8.1 Changes in Capitalization. Subject to Section 8.3, in the event that the Administrator determines that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), change in control, reorganization, merger, amalgamation, consolidation, combination, repurchase, redemption, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, or other similar corporate transaction or event, as determined by the Administrator, affects the Shares such that an adjustment is determined by the Administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any outstanding purchase rights under the Plan, the Administrator shall make equitable adjustments, if any, to reflect such change with respect to (a) the aggregate number and type of Shares (or other securities or property) that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 and the limitations established in each Offering Document pursuant to Section 4.2 on the maximum number of Shares that may be purchased); (b) the class(es) and number of Shares and price per Share subject to outstanding rights; and (c) the Purchase Price with respect to any outstanding rights.

 

 

8.2 Other Adjustments. Subject to Section 8.3, in the event of any transaction or event described in Section 8.1 or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes in Applicable Law or accounting principles, the Administrator, in its discretion, and on such terms and conditions as it deems appropriate, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any right under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles:

 

(a) To provide for either (i) termination of any outstanding right in exchange for an amount of cash, if any, equal to the amount that would have been obtained upon the exercise of such right had such right been currently exercisable or (ii) the replacement of such outstanding right with other rights or property selected by the Administrator in its sole discretion;

 

(b) To provide that the outstanding rights under the Plan shall be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar rights covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(c) To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding rights under the Plan and/or in the terms and conditions of outstanding rights and rights that may be granted in the future;

 

(d) To provide that Participants’ accumulated payroll deductions may be used to purchase Shares prior to the next occurring Purchase Date on such date as the Administrator determines in its sole discretion and the Participants’ rights under the ongoing Offering Period(s) shall be terminated; and

 

(e) To provide that all outstanding rights shall terminate without being exercised.

 

8.3 No Adjustment Under Certain Circumstances. Unless determined otherwise by the Administrator, no adjustment or action described in this Article VIII or in any other provision of the Plan shall be authorized to the extent that such adjustment or action would cause the Section 423 Component of the Plan to fail to satisfy the requirements of Section 423 of the Code.

 

8.4 No Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to action of the Administrator under the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to outstanding rights under the Plan or the Purchase Price with respect to any outstanding rights.

 

 

Article IX.
Amendment, modification and termination

 

9.1 Amendment, Modification and Termination. The Administrator may amend, suspend or terminate the Plan at any time and from time to time; provided, however, that approval of the Company’s stockholders shall be required to amend the Plan to increase the aggregate number, or change the type, of shares that may be sold pursuant to rights under the Plan under Section 3.1 (other than an adjustment as provided by Article VIII) or as may otherwise be required under Section 423 of the Code.

 

9.2 Certain Changes to Plan. Without stockholder consent and without regard to whether any Participant rights may be considered to have been adversely affected (and, with respect to the Section 423 Component of the Plan, to the extent permitted by Section 423 of the Code), the Administrator shall be entitled to change or terminate the Offering Periods, limit the frequency and/or number of changes in the amount withheld from Compensation during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of payroll withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Shares for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Administrator determines in its sole discretion to be advisable that are consistent with the Plan.

 

9.3 Actions In the Event of Unfavorable Financial Accounting Consequences. In the event the Administrator determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Administrator may, in its discretion and, to the extent necessary or desirable, modify or amend the Plan to reduce or eliminate such accounting consequence including, but not limited to:

 

(a) altering the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase Price;

 

(b) shortening any Offering Period so that the Offering Period ends on a new or earlier Purchase Date, including an Offering Period underway at the time of the Administrator action;

 

(c) allocating Shares; and

 

(d) such other changes and modifications as the Administrator determines are necessary or appropriate.

 

Such modifications or amendments shall not require stockholder approval or the consent of any Participant.

 

9.4 Payments Upon Termination of Plan. Upon termination of the Plan, the balance in each Participant’s Plan account shall be refunded as soon as practicable after such termination, without any interest thereon, or if the Administrator so determines, the Offering Period may be shortened so that the purchase of Shares occurs prior to the termination of the Plan.

 

 

Article X.
TERM OF PLAN

 

The Plan shall become effective on the Effective Date and shall continue until terminated by the Board in accordance with Section 9.1. No right may be granted under the Plan prior to the Effective Date. No rights may be granted under the Plan during any period of suspension of the Plan or after termination of the Plan.

 

Article XI.
ADMINISTRATION

 

11.1 Administrator. Unless otherwise determined by the Board, the Administrator of the Plan shall be the Compensation Committee of the Board (or another committee or a subcommittee of the Board to which the Board delegates administration of the Plan). The Board may at any time vest in the Board any authority or duties for administration of the Plan. The Administrator may delegate administrative tasks under the Plan to the services of an Agent or Employees to assist in the administration of the Plan, including establishing and maintaining an individual securities account under the Plan for each Participant.

 

11.2 Authority of Administrator. The Administrator shall have the power, subject to, and within the limitations of, the express provisions of the Plan:

 

(a) To determine when and how rights to purchase Shares shall be granted and the provisions of each offering of such rights (which need not be identical).

 

(b) To designate from time to time which Subsidiaries of the Company shall be Designated Subsidiaries, which designation may be made without the approval of the stockholders of the Company.

 

(c) To impose a mandatory holding period pursuant to which Participants may not dispose of or transfer Shares purchased under the Plan for a period of time determined by the Administrator in its discretion.

 

(d) To construe and interpret the Plan and rights granted under it, and to establish, amend and revoke rules and regulations for its administration. The Administrator, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.

 

(e) To amend, suspend or terminate the Plan as provided in Article IX.

 

(f) Generally, to exercise such powers and to perform such acts as the Administrator deems necessary or expedient to promote the best interests of the Company and its Subsidiaries and to carry out the intent that the Plan be treated as an “employee stock purchase plan” within the meaning of Section 423 of the Code for the Section 423 Component.

 

(g) The Administrator may adopt annexes or sub-plans applicable to particular Designated Subsidiaries or locations, which annexes or sub-plans may be designed to be outside the scope of Section 423 of the Code. The rules of such annexes or sub-plans may take precedence over other provisions of this Plan, with the exception of Section 3.1 hereof, but unless otherwise superseded by the terms of such annex or sub-plan, the provisions of this Plan shall govern the operation of such annex or sub-plan.

 

 

11.3 Decisions Binding. The Administrator’s interpretation of the Plan, any rights granted pursuant to the Plan, any subscription agreement and all decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all parties.

 

Article XII.
MISCELLANEOUS

 

12.1 Restriction upon Assignment. A right granted under the Plan shall not be transferable other than by will or the Applicable Laws of descent and distribution, and is exercisable during the Participant’s lifetime only by the Participant. Except in the case of a Participant’s death, a right under the Plan may not be exercised to any extent except by the Participant. The Company shall not recognize and shall be under no duty to recognize any assignment or alienation of the Participant’s interest in the Plan, the Participant’s rights under the Plan or any rights thereunder.

 

12.2 Rights as a Stockholder. With respect to Shares subject to a right granted under the Plan, no Participant or Designated Beneficiary shall be deemed to be a stockholder of the Company, and no Participant or Designated Beneficiary shall have any of the rights or privileges of a stockholder, until such Shares have been issued to the Participant or the Designated Beneficiary following exercise of the Participant’s rights under the Plan. No adjustments shall be made for dividends (ordinary or extraordinary, whether in cash securities, or other property) or distribution or other rights for which the record date occurs prior to the date of such issuance, except as otherwise expressly provided herein or as determined by the Administrator.

 

12.3 Interest. No interest shall accrue on the payroll deductions or contributions of a Participant under the Plan.

 

12.4 Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.

 

12.5 Equal Rights and Privileges. Subject to Section 5.7, all Eligible Employees will have equal rights and privileges under the Section 423 Component so that the Section 423 Component of this Plan qualifies as an “employee stock purchase plan” within the meaning of Section 423 of the Code. Subject to Section 5.7, any provision of the Section 423 Component that is inconsistent with Section 423 of the Code will, without further act or amendment by the Company, the Board or the Administrator, be reformed to comply with the equal rights and privileges requirement of Section 423 of the Code. Eligible Employees participating in the Non-Section 423 Component need not have the same rights and privileges as other Eligible Employees participating in the Non-Section 423 Component or as Eligible Employees participating in the Section 423 Component.

 

12.6 Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.

 

12.7 Reports. Statements of account shall be given to Participants at least annually, which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of Shares purchased and the remaining cash balance, if any.

 

12.8 No Employment Rights. Nothing in the Plan shall be construed to give any person (including any Eligible Employee or Participant) the right to employment or service (or to remain in the employ or service) with the Company or any Parent or Subsidiary or affect the right of the Company or any Parent or Subsidiary to terminate the employment or service of any person (including any Eligible Employee or Participant) at any time, with or without cause.

 

 

12.9 Notice of Disposition of Shares. Each Participant shall give prompt notice to the Company of any disposition or other transfer of any Shares purchased upon exercise of a right under the Section 423 Component of the Plan if such disposition or transfer is made: (a) within two years from the Enrollment Date of the Offering Period in which the Shares were purchased or (b) within one year after the Purchase Date on which such Shares were purchased. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Participant in such disposition or other transfer.

 

12.10 Limitations on Liability. Notwithstanding any other provisions of the Plan, no individual acting as a director, officer, other employee or agent of the Company or any Subsidiary will be liable to any Participant, former Participant, Designated Beneficiary or any other person for any claim, loss, liability, or expense incurred in connection with the Plan or any Offering Period, and such individual will not be personally liable with respect to the Plan because of any contract or other instrument executed in his or her capacity as an Administrator, director, officer, other employee or agent of the Company or any Subsidiary.  The Company will indemnify and hold harmless each director, officer, other employee and agent of the Company or any Subsidiary that has been or will be granted or delegated any duty or power relating to the Plan’s administration or interpretation, against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with the Administrator’s approval) arising from any act or omission concerning this Plan unless arising from such person’s own fraud or bad faith.

 

12.11 Data Privacy. As a condition for participation in the Plan, each Participant explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this section by and among the Company and its Subsidiaries and affiliates exclusively for implementing, administering and managing the Participant’s participation in the Plan.  The Company and its Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participant’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company or its Subsidiaries and affiliates; and participation details, to implement, manage and administer the Plan and any Offering Period(s) (the “Data”).  The Company and its Subsidiaries and affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Participant’s participation in the Plan and any Offering Period(s), and the Company and its Subsidiaries and affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management.  These recipients may be located in the Participant’s country, or elsewhere, and the Participant’s country may have different data privacy laws and protections than the recipients’ country.  By participating in any Offering Period under the Plan, each Participant authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participant’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares.  The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participant’s participation in the Plan.  A Participant may, at any time, view the Data that the Company holds regarding such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any necessary corrections to the Data regarding the Participant or refuse or withdraw the consents in this Section 12.12 in writing, without cost, by contacting the local human resources representative.  If the Participant refuses or withdraws the consents in this Section 12.12, and the Company may cancel Participant’s ability to participate in the Plan or any Offering Period(s).  For more information on the consequences of refusing or withdrawing consent, Participants may contact their local human resources representative.

 

 

12.12 Severability. If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.

 

12.13 Titles and Headings.  The titles and headings in the Plan are for convenience of reference only and, if any conflict, the Plan’s text, rather than such titles or headings, will control.

 

12.14 Conformity to Securities Laws.  Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Laws.  Notwithstanding anything herein to the contrary, the Plan and all Offering Periods will be administered only in conformance with Applicable Laws.  To the extent Applicable Laws permit, the Plan and all Offering Periods will be deemed amended as necessary to conform to Applicable Laws.

 

12.15 Relationship to Other Benefits.  No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except as expressly provided in writing in such other plan or an agreement thereunder.

 

12.16 Governing Law. The Plan and any agreements hereunder shall be administered, interpreted and enforced in accordance with the laws of the State of Delaware, disregarding any state’s choice of law principles requiring the application of a jurisdiction’s laws other than the State of Delaware.

 

12.17 Electronic Forms. To the extent permitted by Applicable Law and in the discretion of the Administrator, an Eligible Employee may submit any form or notice as set forth herein by means of an electronic form approved by the Administrator. Before the commencement of an Offering Period, the Administrator shall prescribe the time limits within which any such electronic form shall be submitted to the Administrator with respect to such Offering Period in order to be a valid election.

 

12.18 Section 409A. The Section 423 Component of the Plan and the rights to purchase Shares granted pursuant to Offerings thereunder are intended to be exempt from the application of Section 409A of the Code and the U.S. Department of Treasury Regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”). Neither the Non-Section 423 Component nor any right to purchase Shares granted pursuant to an Offering thereunder is intended to constitute or provide for “nonqualified deferred compensation” within the meaning of Section 409A. Notwithstanding any provision of the Plan to the contrary, if the Administrator determines that any right to purchase Shares granted under the Plan may be or become subject to Section 409A or that any provision of the Plan may cause a right to purchase Shares granted under the Plan to be or become subject to Section 409A, the Administrator may adopt such amendments to the Plan and/or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions as the Administrator determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, either through compliance with the requirements of Section 409A or with an available exemption therefrom.

 

* * * * *

 

 

16

 

Exhibit 10.27

 

[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.

 

SUPPLY AND LICENSE AGREEMENT

 

This Supply and License Agreement (this “Agreement”), dated as of August 1, 2021 (the “Effective Date”), is by and between Bolt Threads, Inc., a Delaware corporation (“Bolt”), and VEGAMOUR, Inc., a Delaware corporation (“VEGAMOUR”) (each a “Party” and, collectively, the “Parties”).

 

RECITALS

 

WHEREAS, Bolt is the inventor and owner of a number of patents and other intellectual property relating to bSilk protein (as used herein, “bSilk Powder” and “Product”). Bolt is also owner of the registered WIPO trademark bSilk (WIPO Reg. No. 1459737) in International Class 001, for, inter alia, “proteins for use in manufacture; proteins for use in the manufacture of cosmetics; recombinant protein products used in cosmetic preparations, specifically recombinant proteins as a powder, solution, or a hydrogel precursor,” and in International Class 003, for, inter alia, “topical skin care products, namely, day creams, serums, masks, beauty milks, cleansing solutions, anti-wrinkle creams, and moisturizers; cosmetics; cosmetic products, namely, makeup primers, makeup bases, and pigment extenders; non-medicated sun care preparations; non-medicated sun care preparations, namely, oils, lotions, moisturizers, sunscreens, sun blocks, and preparations to assist in protecting the skin and minimizing skin damage from the sun, which registration has been designated and/or registered in at least the European Union and the United States (the “Registered Mark”) and the common law trademark bSilk for biodegradable unhydrolyzed silk proteins (the “Powder Mark”, together with the Registered Mark, the “bSilk Mark”).

 

WHEREAS, VEGAMOUR 1s the manufacturer of haircare products distributed under the “VEGAMOUR” brand name.

 

WHEREAS, VEGAMOUR desires to order from Bolt, and Bolt desires to supply to VEGAMOUR, certain quantities of bSilk Powder as mutually agreed by the Parties and license the bSilk Mark and certain know-how for the production of VEGAMOUR’s haircare products pursuant to the terms and conditions set forth in this Agreement.

 

NOW THEREFORE, in consideration of the foregoing and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

AGREEMENT

 

1. Term. The term of this Agreement shall commence on the Effective Date and shall terminate on December 31, 2023 (the “Term”), unless earlier terminated or extended in accordance with this Agreement. This Agreement shall terminate without further notice upon the expiration of the Term, and any retention of bSilk Powder by VEGAMOUR after the expiration of the Term shall not constitute a renewal hereof.

 

2. Limited bSilk Powder and Know-How License. Subject to the terms and conditions set forth in this Agreement, including VEGAMOUR’s limited permitted use of bSilk Powder hereunder, Bolt hereby grants to VEGAMOUR and VEGAMOUR hereby accepts, a limited, non-transferable, non-sublicensable, non-assignable license to use the bSilk Powder (the “Product License”) solely for the purpose of developing and manufacturing haircare products in Spain and Germany, and distributing haircare products (“Haircare Products”) for sale in the United States (the “Territory”). Bolt's Product License to VEGAMOUR shall not be exclusive to VEGAMOUR. In addition to the foregoing, Bolt hereby grants to VEGAMOUR, and VEGAMOUR hereby accepts, a limited, non-transferable, non-sublicensable, non-assignable license of Bolt's know-how in connection with the use and incorporation of bSilk Powder in the manufacture of the Haircare Products (the “Technology License”).

 

 

3. Limited Trademark License. Subject to the terms and conditions set forth in this Agreement, Bolt grants to VEGAMOUR a non-exclusive, non-transferable, non-assignable license with limited rights to sublicense only to the extent reasonably necessary to effect performance of the activities contemplated in this Agreement by contractors of VEGAMOUR on behalf of VEGAMOUR (e.g., granting sublicenses to YouTube or bloggers/influencers), to use the bSilk Mark, solely in connection with any advertising, marketing or promotion of the Haircare Products by VEGAMOUR (“Marketing Activities”) or the distribution or sale of such Haircare Products (the “Trademark License”). VEGAMOUR shall be liable for any misrepresentation of claims or violation of advertising or labeling laws relating to the Haircare Products made by VEGAMOUR. VEGAMOUR shall use reasonable efforts to use the bSilk Mark on label packaging produced in the Territory. The use of the bSilk Mark shall be proper trademark use, and VEGAMOUR or its customers shall use the appropriate trademark notice symbol (i.e., ® or ™) and shall indicate the bSilk Mark is a trademark of Bolt where reasonable possible to do so (the “Trademark Marking”). VEGAMOUR acknowledges that the bSilk Mark licensed hereby shall remain the property of Bolt and that all goodwill in the bSilk Mark shall inure to Bolt's benefit, and that no right or license concerning or interest in such marks is granted or shall accrue except as provided above. As a condition of the Trademark License, VEGAMOUR acknowledges and agrees that the nature and quality of all products bearing the bSilk Mark shall be, at a minimum, in accordance with generally accepted standards for such products in the industry, at least of the same quality of other VEGAMOUR branded products. Upon request, VEGAMOUR shall provide representative samples of products containing bSilk Powder to Bolt.

 

4. Product Orders Minimum Purchase Requirements. VEGAMOUR may request Bolt to deliver bSilk Powder in amounts set forth in a written order for such bSilk Powder issued by VEGAMOUR (a “Product Order”) setting forth a delivery date mutually agreed by the Parties, in accordance with the terms thereof and the terms of this Agreement. With respect to annual minimum purchases (each, a “Minimum Purchase”) pursuant to this Agreement, a Minimum Purchase of [***] kg shall apply for the remainder of 2021 at a purchase price of [***]/kg. VEGAMOUR agrees to purchase a minimum of [***] kg of bSilk during 2022. Vegamour agrees to purchase a minimum of [***] kg of bSilk in 2023. The pricing tier (Exhibit A) offered for years 2022 & 2023 is based on the current annual quantity ordered to date at the time the PO is issued. Once the threshold is met to qualify for the next Tier, the next PO submitted will qualify for that price tier. For years 2022 & 2023, the previous annual order amount (invoiced) will be used to determine the pricing tier initially offered for the following new year. The provisions of this Agreement shall prevail over any conflicting statement, term or provision contained in any document related to this Agreement passing between the Parties (whether a Product Order issued hereunder or otherwise), including any acknowledgment, confirmation or notice.

 

 

5. No Exclusivity: Most Favored Nation. This supply arrangement is non-exclusive as to Bolt, and Bolt may, during the Term, sell its bSilk Powder to other third parties for the manufacture of products, including haircare products or other personal products. In the event Bolt agrees to sell bSilk to any third party on pricing and discount terms more favorable than those offered to VEGAMOUR after the Effective Date of the Agreement, the same pricing and discount terms shall apply to bSilk purchased thereafter by VEGAMOUR, provided that VEGAMOUR has satisfied the applicable Minimum Purchase requirement at the time.

 

6. Supply Shortages. Bolt will notify VEGAMOUR promptly in writing upon becoming aware of any supply shortage, supply delay, inability to supply or any other interruption or potential interruption in the supply of bSilk Powder hereunder.

 

7. Delivery of Products and Acceptance.

 

a. Delivery of Product. Bolt shall deliver ordered bSilk Powder in accordance with the terms of this Agreement and shall be shipped FOB Bolt's facility, or other location as may be designated by Bolt. Costs of shipping the bSilk Powder shall be borne by VEGAMOUR. Title to the bSilk Powder shall pass to VEGAMOUR upon acceptance of the bSilk Powder from the third-party freight forwarder.

 

b. Packaging. All bSilk Powder shipped to VEGAMOUR hereunder shall be properly labeled in accordance with applicable laws. Bolt shall pack all bSilk Powder in a manner which is adequate to protect bSilk Powder from loss or damage in transit and in accordance with standard commercial practices. All shipments of bSilk Powder shall include a packing slip containing identifying information, including the Product Order date and number, the type and quantity of bSilk Powder ordered and shipped, and any other relevant documentation relating to the shipped bSilk Powder. Any costs in relation to the packaging the bSilk Powder shall be borne by the Bolt.

 

c. Acceptance. All delivered bSilk Powder will be subject to final inspection and acceptance at the designated destination point within three (3) business days following delivery (the “Inspection Period”). VEGAMOUR shall notify Bolt within the Inspection Period of any shipment containing damaged bSilk Powder or that does not conform with the terms of the applicable Product Order or this Agreement. If VEGAMOUR fails to provide notice of rejection prior to the expiration of the Inspection Period for any shipment of bSilk Powder, such bSilk Powder shall be deemed accepted by VEGAMOUR. Without prejudice to any other right or remedy of VEGAMOUR, in the event any shipment of bSilk Powder contains damaged bSilk Powder or is otherwise not in conformity with the applicable Product Order or this Agreement, VEGAMOUR will have the right to reject such bSilk Powder prior to the expiration of the Inspection Period. VEGAMOUR will not be required to pay for any shipping costs or any other costs related to such rejected bSilk Powder. VEGAMOUR will return all such rejected bSilk Powder to Bolt at Bolt's expense and provide Bolt with a statement in reasonable detail of its reasons for rejection. Upon VEGAMOUR’s rejection of any bSilk Powder, at VEGAMOUR’s sole discretion, VEGAMOUR may (a) elect to have such rejected bSilk Powder replaced by and at the expense of Bolt or (b) cancel the Product Order for such Product.

 

 

8. Bolt Representations and Warranties. Bolt represents and warrants to VEGAMOUR that:

 

a. All bSilk Powder supplied to VEGAMOUR hereunder shall (i) comply with all applicable United States federal, state and local statutes, ordinances, rules and regulation for cosmetics, hair or skin care, including with respect to manufacturing, packaging and labeling of bSilk Powder, sold in the United States, (ii) under proper storage, be free of any defects in material, workmanship and design and be of merchantable quality, and (iii) be free of all liens, encumbrances and defects in title.

 

b. Bolt owns and has the right to transfer to VEGAMOUR all bSilk Powder delivered to VEGAMOUR hereunder, and that such bSilk Powder does not infringe, misappropriate or violate any third-party intellectual property rights such as patents, trademarks, copyrights and similar intellectual property associated with the bSilk Powder.

 

c. To Bolt's knowledge, the bSilk Powder, the bSilk Mark, the know-how, and any and all intellectual property provided to VEGAMOUR by Bolt hereunder or related thereto (collectively, the “bSilk Intellectual Property”) do not and will not infringe or violate any patent, copyright, trademark, service mark, trade secret, non-disclosure obligation, or other intellectual property or proprietary right of any other person in the Territory; and VEGAMOUR’s use of the bSilk Intellectual Property will not infringe upon or violate any such right in the Territory.

 

d. Bolt has the right to grant the licenses described in Sections 2 and 3 above to VEGAMOUR.

 

e. Bolt is a duly and validly organized and existing company in good standing under the laws of its jurisdiction of formation, and that it is legally qualified to do business in each jurisdiction in which its activities require such qualification.

 

f. The performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach, conflict, or violation of any terms or provisions of, or constitute a default under, Bolt's governing documents or any material agreement or instrument to which it is a party or by which it is bound.

 

g. Bolt has taken all requisite corporate action for the due authorization, execution, delivery, and performance of this Agreement, and this Agreement constitutes a legally binding obligation, enforceable against Bolt, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the rights of creditors generally.

 

9. VEGAMOUR Representations and Warranties. VEGAMOUR represents and warrants to Bolt that:

 

a. All Manufacturing performed pursuant to this Agreement using the bSilk Powder, as well as pursuant to any agreement with any third party will be executed in a professional, skillful and craftsmanlike manner in accordance with generally accepted standards for industry practices.

 

 

b. It shall not distribute, directly or indirectly, any Haircare Products using the bSilk Powder outside of the Territory (or to persons or entities that it knows or has any reason to believe may distribute outside of the Territory) without the express written consent of Bolt, in its sole and absolute discretion.

 

c. It shall not utilize bSilk Powder for any goods other than Haircare Products, which can only be sold in the Territory.

 

d. It shall not take any action that is an unauthorized or illegal use of the bSilk Mark or knowingly or intentionally impair the validity or enforceability of the bSilk Mark; use the bSilk Mark in a generic manner; dilute or tarnish the bSilk Mark; bring into disrepute the reputation of Bolt or the bSilk Mark; or otherwise diminish or impair the goodwill associated with Bolt or the bSilk Mark.

 

e. It shall not, directly or indirectly, reverse engineer, attempt to reverse engineer, or facilitate or otherwise assist any third party in reverse engineering or attempting to reverse engineer the technology underlying the bSilk Powder. VEGAMOUR further represents, warrants, acknowledges, and agrees that Bolt owns all of the intellectual property and know-how provided to VEGAMOUR pursuant to this Agreement, and at the end of the Term, VEGAMOUR shall cease all use of bSilk Intellectual Property.

 

f. All Haircare Products manufactured by VEGAMOUR utilizing bSilk Powder shall comply with all local statutes, ordinances, rules and regulation for cosmetics, hair or skin care applicable in the Territory, including with respect to manufacturing, packaging, and labeling of Haircare Products sold in the Territory.

 

g. VEGAMOUR is a duly and validly organized and existing company in good standing under the laws of its jurisdiction of formation, and that it is legally qualified to do business in each jurisdiction in which its activities require such qualification; the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach, conflict or violation of any terms or provisions of, or constitute a default under VEGAMOUR’s governing documents or any material agreement or instrument to which it is a party or by which it is bound.

 

h. VEGAMOUR has taken all requisite corporate action for the due authorization, execution, delivery, and performance of this Agreement, and this Agreement constitutes a legally binding obligation, enforceable against VEGAMOUR in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the rights of creditors generally.

 

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

 

i. Regulatory Inspections. If any Regulatory Authority (a) contacts VEGAMOUR with respect to the Haircare Products and conducts, or gives notice of its intent to conduct, an inspection at VEGAMOUR or its manufacturer's facilities or (b) takes, or gives notice to VEGAMOUR or its manufacturer of its intent to take, any other regulatory action alleging improper or inadequate manufacturing practices with respect to its development and/or manufacture of the Haircare Products utilizing bSilk Powder VEGAMOUR shall notify Bolt within two (2) business days of such contact or notice, or sooner if necessary to permit Bolt to be present at, or otherwise participate in, any such inspection or regulatory action with respect to the Haircare Products and shall supply Bolt with all information pertinent thereto. VEGAMOUR shall notify Bolt of such Regulatory Agency's request for records relating to bSilk Powder for the purpose of inspection. VEGAMOUR shall provide Bolt with copies of all documentation issued by any Regulatory Authority in connection therewith and any proposed response thereto and any other information Bolt may reasonably request. For the purposes of this Section, “Regulatory Authority” means any national or local agency, authority, department, inspectorate, minister, ministry official, parliament or public or statutory person (whether autonomous or not) of any government of any country having jurisdiction over either any of the activities contemplated by this Agreement in any country, which has jurisdiction over VEGAMOUR and the Haircare Products or the activities of the Parties contemplated by this Agreement, as the context requires.

 

10.

Payments and Payment Schedule. VEGAMOUR hereby agrees to pay Bolt in U.S. Dollars the amounts set forth in a Purchase Order, and according to the following schedule. Upon issuance of a Purchase Order for Products, [***]% of the balance of the portion of the Minimum Purchase (“PO Balance”) covered by such Purchase Order shall be paid to Bolt with the remainder of the PO Balance paid within [***] days of the bill of lading for such Purchase Order. The PO Balance shall be due and payable to Bolt within the thirty-day period. In addition, upon written notice by Bolt of VEGAMOUR'S failure to issue Purchase Orders in accordance with Section 4 in the aggregate equal to the Minimum Purchase, VEGAMOUR shall be obligated to pay Bolt within thirty (30) days of receipt of such notice the amount equal to the Minimum Purchase less the aggregate Purchase Orders made hereunder. All payments shall be made by wire transfer in accordance with instructions provided by Bolt. If payment is not received when due, VEGAMOUR shall be liable to a late payment charge equal to [***]% of the overdue balance per month to compensate Bolt for the cost of collection and its loss of the use of the money due. VEGAMOUR acknowledges that such late charges are reasonable and do not constitute a penalty.

 

 

11. Indemnification, Limitation of Liability, Insurance.

 

a. Indemnification by Bolt. Bolt shall defend, indemnify and hold harmless VEGAMOUR, its affiliates, officers, directors, employees and agents (each, an “VEGAMOUR Indemnitee”) from and against any damages, liability, losses, costs and expenses (including reasonable attorneys' fees) incurred by any VEGAMOUR Indemnitee in connection with any claim, action, suit or proceeding arising from or related to: (a) the bSilk Powder, including death or bodily injury resulting from use of the bSilk Powder or the distribution or use thereof, except to the extent caused by the negligence or willful misconduct of VEGAMOUR; (b) any material breach of Bolt's representations, warranties or obligations under this Agreement; (c) any allegation that the bSilk Powder infringes, misappropriates or violates any third-party intellectual property right; (d) product liability claims relating to bSilk Powder; or (e) Bolt's gross negligence or willful misconduct. If any bSilk Powder or its use is held to constitute an infringement, misappropriation or violation of any third-party intellectual property right, or if in Bolt's opinion, any portion of such bSilk Powder is, or is likely to be held to constitute an infringement, misappropriation or violation of a third-party's intellectual property rights, Bolt will, at its expense and option: (i) procure the right for VEGAMOUR to continue using such bSilk Powder; or (ii) replace or modify such bSilk Powder with a non-infringing and non-misappropriating equivalent. If none of the foregoing options is economically feasible, Bolt shall so notify VEGAMOUR, and VEGAMOUR shall be entitled to terminate this Agreement.

 

b. Indemnification by VEGAMOUR. VEGAMOUR shall defend, indemnify and hold harmless Bolt, its affiliates, officers, directors, employees and agents (each, a “Bolt Indemnitee”) from and against any damages, liability, losses, costs and expenses (including reasonable attorneys' fees) incurred by any Bolt Indemnitee in connection with any claim, action, suit or proceeding arising from or related to: (a) the Haircare Products, including death or bodily injury resulting from use of the Haircare Products, except to the extent caused by the negligence or willful misconduct of VEGAMOUR; (b) VEGAMOURs performance of any Marketing Activities; (c) any material breach of VEGAMOUR’s representations, warranties or obligations under this Agreement including any unauthorized distribution of the Haircare Products beyond the Territory; (d) product liability claims relating to the Haircare Products, or (e) VEGAMOUR’s gross negligence or willful misconduct.

 

c. Insurance. Each Party shall maintain insurance during the Term in amounts adequate to cover its obligations hereunder and which is consistent with normal business practices of prudent companies similarly situated, including, without limitation, product liability insurance for personal injury, death or property damage. It is understood that any insurance described in this Section shall not be construed to limit either Party's liability with respect to its indemnification obligations under this Section or breach of its confidentiality obligations set forth in Section 15. Each Party shall provide the other Party with written evidence of such insurance upon request.

 

d. Limitation of Liability. EXCEPT FOR EACH PARTY'S BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 15, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, OR (B) FOR ANY AMOUNT IN THE AGGREGATE GREATER THAN THE TOTAL AMOUNTS PAID OR PAYABLE TO BOLT HEREUNDER.

 

 

12. Intellectual Property (IP) Ownership Rights. The Parties acknowledge and agree that, except for the licenses expressly granted herein, Bolt shall own all right, title and interest in all intellectual property in the bSilk Powder, all intellectual property in the the bSilk Mark and all marks incorporating the bSilk Mark (including without limitation, designs, stylizations, word marks, or other indications of source used in conjunction with the bSilk Mark), and all other bSilk Intellectual Property. For purposes of this Agreement, bSilk Powder shall be deemed to include all intellectual property, inventions, discoveries, works of authorship, and derivative works, whether or not patentable and whether or not made, conceived or reduced to practice by Bolt alone or jointly with others, that relate to Bolt's proprietary bSilk Powder, together with all progeny, derivatives, parts, uses, and related information thereof and thereto. For avoidance of doubt, the Parties acknowledge and agree that Bolt shall own all right, title, and interest in any discoveries, improvements, processes, “know-how,” or protocols that incorporate, benefit, or improve the bSilk Powder and any processes for bSilk Powder that are not generally known. VEGAMOUR shall have a non-transferable, non-sublicensable license to use the bSilk Intellectual Property for the term of this Agreement as necessary solely for VEGAMOUR to develop, manufacture, and distribute Haircare Products for sale in the United States. VEGAMOUR shall use reasonable efforts to place all appropriate intellectual property notices, markings, and indicia, including Trademark Marking (the “Markings”) on any products sold by or developed by VEGAMOUR integrating bSilk Powder under this Agreement and/or associated marketing literature, to the extent permitted by applicable law in the Territory if such Markings impact recoveries of damages or equitable remedies available with respect to infringement of IP.

 

13. Use of Name and Logo in Promotional Materials. Except for purposes of Markings, neither Party is authorized to use the name(s) and/or logo(s) of the other Party for publicity and/or marketing without the written consent of such Party. To the extent either Party uses marketing, advertising, or other promotional materials that reference the other Party or the other Party's brands, trade names, and trademarks, except for purposes of Markings (the “Promotional Materials”), such Party shall submit such Promotional Materials to the other Party for its prior written approval, which will not be unreasonably withheld or delayed.

 

14. No Publication. The Parties' acknowledge Bolt's interest in obtaining valid patent protection and in protecting business interests and patentable information. Consequently, VEGAMOUR shall not publicize or disclose to any third party any research results (including raw and summarized), documentation, accounts, notes, data, formulations, analyses, information, records, or reports, and other information or data that is generated under this Agreement (the “Results”), without the written consent of Bolt, which will not be unreasonably withheld or delayed. A publication includes, but is not limited to, academic, scientific, medical, marketing, patent, or other publication or presentation that contains or refers to information related to the bSilk protein, bSilk Powder, or Results generated under this Agreement. Without limiting the generality of the foregoing, no press releases may be made without the mutual written consent of each Party.

 

 

15. Confidentiality.

 

a. Definition. “Confidential Information” means any confidential or proprietary information disclosed in any format or medium by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with the performance of this Agreement. Confidential Information shall include the terms and conditions of this Agreement, the business and trade concept of each Party or information in connection with the business of such Party disclosed or learned by Receiving Party in the course of its performance hereunder. The confidentiality obligations described herein shall commence on the date of disclosure and shall continue: (i) for Confidential Information which qualifies as a trade secret under applicable law, at all times thereafter so long as such Confidential Information qualifies as a trade secret; and (ii) for all other Confidential Information, for a period of five (5) years following the expiration or termination of this Agreement.

 

b. Restrictions on Use and Disclosure. Receiving Party agrees to: (a) keep the Confidential Information strictly confidential and to be bound to secrecy with respect to such Confidential Information; (b) use the Confidential Information solely for the purpose of this Agreement; and (c) protect the confidentiality of the Confidential Information with at least the same degree of care used to protect its own similar confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. Receiving Party recognizes and acknowledges the competitive value and confidential nature of this Agreement and the damage that could result to the Disclosing Party if any Confidential Information is disclosed by Receiving Party or its Representatives (as defined below) to any third party, except as expressly permitted herein.

 

c. Exceptions. Confidential Information shall not include information which: (a) 1s legally known to Receiving Party on a nonconfidential basis before receipt thereof under this Agreement, as evidenced by Receiving Party's written records; (b) is disclosed to Receiving Party after the Effective Date by a third party having a right to make such disclosure in a nonconfidential manner; (c) is or becomes part of the public domain through no breach of this Agreement by Receiving Party or its Representatives; or (d) is independently developed by Receiving Party without use of the Disclosing Party's Confidential Information.

 

d. Permitted Disclosures. Receiving Party may disclose Confidential Information to its employees (collectively, “Representatives”) who need to know the Confidential Information for the purpose of performing this Agreement and who are informed of the confidential nature of the Confidential Information and who have agreed in writing to keep the Confidential Information confidential in accordance with the terms and conditions of this Agreement. Receiving Party shall be liable for any unauthorized use or disclosure of the Confidential Information by any Representative. Nothing in this Agreement shall be construed to restrict Receiving Party from disclosing Confidential Information as required by law or court order or other governmental order, provided that Receiving Party shall timely inform Disclosing Party of such disclosure and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information to the extent possible.

 

e. Return of Confidential Information. Upon Disclosing Party's request, Receiving Party shall, at Disclosing Party's election, return to Disclosing Party or destroy (and confirm such destruction in writing) all of the Confidential Information then in Receiving Party's possession or control.

 

16. Termination Events. This Agreement shall terminate (a) upon the expiration of the Term as provided in Section 1, (b) immediately by mutual written agreement of the Parties to terminate this Agreement, (c) for any reason upon thirty (30) days' written notice by either Party to the other, or (d) in accordance with the terms of Section 17 below regarding breach. Fallowing any expiration or termination hereof, and notwithstanding anything else, VEGAMOUR shall have the right to continue to sell or otherwise distribute all Haircare Products then in its inventory that were produced using bSilk Powder prior to such expiration or termination.

 

 

17. Breach. If either Party breaches any of the material terms, conditions, provisions or covenants of this Agreement, including, without limitation, failure to pay any payment of money required hereunder, the other Party will have the right to notify the breaching Party in writing of such breach and the breaching Party will have thirty (30) days after receipt of such notice to remedy such breach. If either Party fails to remedy any such breach within the cure period, the non-breaching Party will have the right to terminate this Agreement immediately upon written notice to the other Party, and such non-breaching Party will have all rights and remedies at law and in equity.

 

18. Miscellaneous.

 

a. Assignment. VEGAMOUR may not sell, assign or transfer its rights under this Agreement without the prior written consent of Bolt, in its sole and absolute discretion.

 

b. Entire Agreement. The Recitals are expressly incorporated herein by reference and made a part hereof. This document sets forth the entire agreement of the Parties concerning the transactions described herein and supersedes all prior representations and agreements of any kind. No agreements, commitments or understandings varying any term, provision, covenant or condition hereof will be binding upon either Party unless made in writing and signed by officers of both Parties. Failure to enforce any provision of this Agreement in any instance will not be deemed a waiver of such provision in the same instance or in any other instance.

 

c. Waiver. Any of the terms or conditions of this Agreement that can be lawfully waived may be waived in writing at any time by the Party who is entitled to the benefits of such term or condition. However, any waiver of any of the provisions or obligations of this Agreement by either Party will be binding only if set forth in an instrument in writing signed by or on behalf of the Party waiving such provisions or obligations. No failure to enforce any provision or obligation of this Agreement will be deemed to, or will, constitute a waiver of such provision and no waiver of any of the provisions of this Agreement will be deemed to, or will, constitute a waiver of any other provision or obligation of this Agreement, nor will such waiver constitute a continuing waiver.

 

d. Severability. In the event that any provision of this Agreement becomes unenforceable or invalid under any applicable law or ruling, such provision will be changed and interpreted so as to best accomplish the objectives of such provision within the bounds of such applicable law or ruling. All remaining provisions of this Agreement will continue in full force and effect.

 

 

e. Choice of Law/Venue.

 

(i) This Agreement and any claim or controversy arising hereunder will be governed by and construed in accordance with the internal laws of the State of California, without any reference to any principles of conflict of laws.

 

(ii) Any cause of action between the Parties, whether under this Agreement or otherwise, may be brought only in a court having jurisdiction and venue in Oakland County for state court causes of action and in the U.S. District Court, Northern District of California for federal court causes of action. Both Parties waive any objection on the basis of personal jurisdiction or venue.

 

(iii) In any legal action or proceeding arising out of or related to this Agreement, in addition to any other relief to which the prevailing Party may be entitled, the prevailing Party shall be entitled to recover all of it costs and expenses (including, but not limited to, reasonable attorneys' fees and expenses, court costs, witness and expert witness fees and expenses, fees relating to alternative dispute resolution and others) incurred in connection with or with respect to the action or proceeding. The Parties agree that the reasonableness of the attorneys' fees and expert witness fees will be determined by the court, after the verdict is rendered.

 

f. Independent Counsel. Each Party has had the opportunity to be separately represented by independent counsel prior to the execution of this Agreement. Any ambiguities in this Agreement will not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting.

 

g. Independent Contractors. VEGAMOUR is at all times an independent party and not an employee, agent or partner of Bolt. Neither Party has authority to act for or on behalf of the other Party, may not hold itself out as an agent of the other Party, and may not sign any contracts purporting to bind the other Party. Each Party warrants that it has the means, including any necessary offices, staff, governmental authorizations, bonds, permits, and licenses to carry out its activities under this Agreement.

 

h. Time is of the Essence. Both parties acknowledge that time is of the essence in each and every provision of this Agreement.

 

i. Force Majeure. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a Party's financial inability to perform its obligations hereunder.

 

 

j. Notices. All notices required or permitted to be given by a Party under this Agreement will be in writing, and will be hand-delivered, sent by overnight courier, or mailed by certified mail, postage prepaid, to the other Party at the addresses set forth below, or at such other address as a Party may have designated by notice, and will be effective upon hand delivery, upon receive by overnight courier, or five (5) business days after mailing, as the case may be.

 

To VEGAMOUR:	To Bolt:
With copies to:	Bolt Threads, Inc.
	5858 Horton Street, Suite 400
Vegamour, Inc.	Emeryville, CA 94608
1035 Santee Street, Sixth Floor	Attn: [***]
Los Angeles, CA 90015	Email:
Email:

 

k. Legally Binding. The undersigned acknowledge that they have each reviewed the terms of this Agreement, and that they fully understand those terms. The signatories below are authorized on behalf of their respective Parties to execute this Agreement and intend that the Parties be legally bound by the provisions of this Agreement. This Agreement will not become effective until fully executed.

 

1. Compliance with Laws; Regulatory Matters. VEGAMOUR hereby represents and warrants to Bolt that it is, has been, and will be in connection with this Agreement in compliance in all material respects with each federal, state, territorial, foreign or local law, common law, statute, ordinance, rule, regulation or code of any governmental authority (each, a “Law”) that is or was applicable to it or to the conduct of its business, or to the ownership or use of any of its assets or properties. VEGAMOUR further represents and warrants to Bolt that neither it nor any of its directors, officers, employees, contractors, agents, or other person or entity acting on behalf of or at the direction of VEGAMOUR will, in connection with this Agreement or in any manner that could result in liability to Bolt, (i) violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”), or (ii) make, offer to make, promise to make or authorize the payment or giving of, directly or indirectly, any bribe, rebate, payoff, influence payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable law addressing matters comparable to those addressed by the FCPA implementing legislation concerning such payments or gifts in any jurisdiction (any such payment, a “Prohibited Payment”). Neither VEGAMOUR nor any of its directors, officers, employees, contractors, agents, or other person or entity acting on behalf of or at the direction of VEGAMOUR has been subject to any formal investigation by any governmental authority with regard to any Prohibited Payment.

 

(SIGNATURE PAGE FOLLOWS)

 

 

IN WITNESS WHEREOF, the Parties below have executed this Agreement as of the day and year first above written.

 

VEGAMOUR, INC.			BOLT THREADS, INC.
By:	/s/ Daniel Hodgdon		By:	/s/ Sue Levin
Name:	Daniel Hodgdon		Name:	Sue Levin
Title:	CEO		Title:	General Manager, BPC

 

 

13

 

Exhibit 14.1

 

Document Number Request Document Number from Quality

Revision Number 1.0

Approval Date Date Expiration Date Date

Approver Person Quality Review Person

 

BOLT PROJECTS HOLDINGS, INC.

 

CODE OF ETHICS AND CONDUCT

 

(As of August 13, 2024)

 

In accordance with the requirements of the Securities and Exchange Commission (the “SEC”) and the National Association of Securities Dealers Automated Quotations Stock Market (“Nasdaq”) Listing Standards, the Board of Directors (the “Board”) of Bolt Projects Holdings, Inc. (the “Company”) has adopted this Code of Ethics and Conduct (the “Code”) to encourage:

 

●

Honest and ethical conduct, including fair dealing and the ethical handling of actual or apparent conflicts of interest;

 

●

Full, fair, accurate, timely and understandable disclosure;

 

	●	Compliance with applicable governmental laws, rules and regulations;

●

Prompt internal reporting of any violations of law or the Code;

 

●

Accountability for adherence to the Code, including fair process by which to determine violations;

 

	●	Consistent enforcement of the Code, including clear and objective standards for compliance;

	●	Protection for persons reporting any such questionable behavior;

	●	The protection of the Company’s legitimate business interests, including its assets and corporate opportunities; and

●

Confidentiality of information entrusted to directors, officers and employees by the Company and its customers.

 

All directors, officers and employees (each a “Covered Party” and, collectively, the “Covered Parties”) of the Company and all of its subsidiaries and controlled affiliates are expected to be familiar with the Code and to adhere to those principles and procedures set forth below.

 

I. Conflicts of Interest

 

A conflict of interest occurs when the private interests of a Covered Party interfere, or appear to interfere, with the interests of the Company as a whole.

 

 

For example, a conflict of interest can arise when a Covered Party takes actions or has personal interests that may make it difficult to perform his or her Company duties objectively and effectively. A conflict of interest may also arise when a Covered Party, or a member of his or her immediate family,¹ receives improper personal benefits as a result of his or her position at the Company.

 

Conflicts of interest can also occur indirectly. For example, a conflict of interest may arise when a Covered Party is also an executive officer, a major shareholder or has a material interest in a company or organization doing business with the Company.

 

Each Covered Party has an obligation to conduct the Company’s business in an honest and ethical manner, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships. Any situation that involves, or may reasonably be expected to involve, a conflict of interest with the Company, should be disclosed promptly to the Company’s General Counsel.

 

This Code does not attempt to describe all possible conflicts of interest that could develop. Other common conflicts from which Covered Parties must refrain are set out below:

 

●

Covered Parties may not engage in any conduct or activities that are inconsistent with the Company’s best interests or that disrupt or impair the Company’s relationship with any person or entity with which the Company has or proposes to enter into a business or contractual relationship.

 

●

Covered Parties may not accept compensation, in any form, for services performed for the Company from any source other than the Company.

 

●

No Covered Party may take up any management or other employment position with, or have any material interest in, any firm or company that is in direct or indirect competition with the Company.

 

II. Disclosures

 

The information in the Company’s public communications, including in all reports and documents filed with or submitted to the SEC, must be full, fair, accurate, timely and understandable.

 

To ensure the Company meets this standard, all Covered Parties (to the extent they are involved in the Company’s disclosure process) are required to maintain familiarity with the disclosure requirements, processes and procedures applicable to the Company commensurate with their duties. Covered Parties are prohibited from knowingly misrepresenting, omitting or causing others to misrepresent or omit, material facts about the Company to others, including the Company’s independent auditors, governmental regulators and self-regulatory organizations.

 

 

1

Item 404(a) of SEC Regulation S-K defines “immediate family member” as a person’s child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, or any person (other than a tenant or employee) sharing the person’s household.

 

 

III. Compliance with Laws, Rules and Regulations

 

The Company is obligated to comply with all applicable laws, rules and regulations. It is the personal responsibility of each Covered Party to adhere to the standards and restrictions imposed by these laws, rules and regulations in the performance of his or her duties for the Company.

 

The Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer or Controller (or persons performing similar functions) of the Company (together, the “Senior Financial Officers”) are also required to promote compliance by all employees with the Code and to abide by Company standards, policies and procedures.

 

Covered Parties located outside of the United States must comply with laws, regulations, rules and regulatory orders of the United States, including the Foreign Corrupt Practices Act (“FCPA”) and U.S. export control laws, in addition to applicable local laws.

 

IV. Insider Trading

 

Trading on inside information is a violation of federal securities law. Covered Parties in possession of material non-public information about the Company or companies with whom we do business must abstain from trading or advising others to trade in the respective company’s securities from the time that they obtain such inside information until adequate public disclosure of the information. Material information is information of such importance that it can be expected to affect the judgment of investors as to whether or not to buy, sell, or hold the securities in question. To use non-public information for personal financial benefit or to “tip” others, including family members, who might make an investment decision based on this information is not only unethical but also illegal. Covered Parties who trade stock based on insider information can be personally liable for damages totaling up to three times the profit made or loss avoided by the respective Covered Party.

 

V. Reporting, Accountability and Enforcement

 

The Company promotes ethical behavior at all times and encourages Covered Parties to talk to supervisors, managers and other appropriate personnel, including the officers, the General Counsel, outside counsel for the Company and the Board or the relevant committee thereof, when in doubt about the best course of action in a particular situation.

 

Covered Parties should promptly report suspected violations of laws, rules, regulations or the Code or any other unethical behavior by any director, officer, employee or anyone purporting to be acting on the Company’s behalf to appropriate personnel, including officers, the General Counsel, outside counsel for the Company and the Board or the relevant committee thereof. Reports may be made anonymously. If requested, confidentiality will be maintained, subject to applicable law, regulations and legal proceedings.

 

 

The Audit Committee of the Board or other appropriate officer or body shall investigate and determine, or shall designate appropriate persons to investigate and determine, the legitimacy of such reports. The Audit Committee or other appropriate officer or body will then determine the appropriate disciplinary action. Such disciplinary action includes, but is not limited to, reprimand, termination with cause, and possible civil and criminal prosecution.

 

To encourage employees to report any and all violations, the Company will not tolerate retaliation for reports made in good faith. Retaliation or retribution against any Covered Party for a report made in good faith of any suspected violation of laws, rules, regulations or this Code is cause for appropriate disciplinary action.

 

VI. Corporate Opportunities

 

All Covered Parties owe a duty to the Company to advance the legitimate interests of the Company when the opportunity to do so arises. Covered Parties are prohibited from directly or indirectly (a) taking personally for themselves opportunities that are discovered through the use of Company property, information or positions; (b) using Company property, information or positions for personal gain; or (c) competing with the Company for business opportunities.

 

VII. Confidentiality

 

In carrying out the Company’s business, Covered Parties may learn confidential or proprietary information about the Company, its customers, distributors, suppliers or joint venture partners. Confidential or proprietary information includes all non-public information relating to the Company, or other companies, that would be harmful to the relevant company or useful or helpful to competitors if disclosed, including, without limitation, financial results or prospects, information provided by a third party, trade secrets, new product or marketing plans, research and development ideas, manufacturing processes, potential acquisitions or investments, or information of use to our competitors or harmful to us or our customers if disclosed.

 

Covered Parties must maintain the confidentiality of all information so entrusted to them, except when disclosure is authorized or legally mandated. Covered Parties must safeguard confidential information by keeping it secure, limiting access to those who have a need to know in order to do their job, and avoiding discussion of confidential information in public areas such as planes, elevators, and restaurants. This prohibition includes, but is not limited to, inquiries made by the press, analysts, investors or others. Covered parties also may not use such information for personal gain. These confidentiality obligations continue even after employment with the Company ends.

 

 

VIII. Fair Dealing

 

Each Covered Party should endeavor to deal fairly with the Company’s customers, service providers, suppliers, competitors and employees. No Covered Party should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts, or any unfair dealing practice. Inappropriate use of proprietary information, misusing trade secret information that was obtained without the owner’s consent, or inducing such disclosures by past or present employees of other companies is also prohibited.

 

IX. Protection and Proper Use of Company Assets

 

All Covered Parties should protect the Company’s assets and ensure their efficient use. Theft, carelessness and waste have a direct impact on the Company’s profitability. All Company assets should be used only for legitimate business purposes. The obligation of employees to protect the Company’s assets includes its proprietary information. Proprietary information includes intellectual property such as trade secrets, patents, trademarks and copyrights, as well as business, marketing and service plans, engineering and manufacturing ideas, designs, databases, records, salary information and any unpublished financial data and reports.

 

X. Waivers

 

Before an employee, or an immediate family member of any such employee, engages in any activity that would be otherwise prohibited by the Code, he or she is strongly encouraged to obtain a written waiver from the Board or other authorized officer or body.

 

Before a director or executive officer, or an immediate family member of a director or executive officer, engages in any activity that would be otherwise prohibited by the Code, he or she must obtain a written waiver from the disinterested directors of the Board. Such waiver must then be disclosed to the Company’s shareholders, along with the reasons for granting the waiver.

 

XI. Accuracy of Business Records

 

All financial books, records and accounts must accurately reflect transactions and events, and conform both to generally accepted accounting principles (GAAP) and to the Company’s system of internal controls. No entry may be made that intentionally hides or disguises the true nature of any transaction. Covered Parties should therefore attempt to be as clear, concise, truthful and accurate as possible when recording any information.

 

 

XII. Corporate Loans or Guarantees

 

Federal law prohibits the Company to make loans and guarantees of obligations to directors, executive officers, and members of their immediate families.

 

XIII. Gifts and Favors

 

The purpose of business gifts and entertainment in a commercial setting is to create goodwill and sound working relationships, not to gain unfair advantage with customers. Covered Parties must act in a fair and impartial manner in all business dealings. Gifts and entertainment should further the business interests of the Company and not be construed as potentially influencing business judgment or creating an obligation.

 

Gifts must not be lavish or in excess of the generally accepted business practices of one’s country and industry.² Gifts of cash or cash equivalents are never permitted. Requesting or soliciting personal gifts, favors, entertainment or services is unacceptable. Covered Parties should contact the officers, the General Counsel, outside counsel for the Company and the Board or the relevant committee thereof to discuss if they are not certain that a gift is appropriate.

 

The FCPA prohibits giving anything of value, directly or indirectly, to officials of foreign governments or foreign political candidates in order to obtain or retain business. It is strictly prohibited to make illegal payments to government officials of any country. In addition, the promise, offer or delivery to an official or employee of the U.S. government of a gift, favor or other gratuity in violation of these rules would not only violate Company policy but could also be a criminal offense. State and local governments, as well as foreign governments, may have similar rules.

 

 

2

In general, no gift, entertainment or business courtesy should be offered, given, provided or accepted unless it: (1) is not a gift of cash, stock or negotiable instruments, (2) is consistent with customary business practices, (3) is not excessive in value (less than $150), (4) cannot be construed as a bribe or payoff and (5) does not violate any laws or regulations. Covered employees and members of their immediate families may not offer, give or receive gifts from persons or entities who deal with the Company: (a) in those cases where the gift would be illegal or result in a violation of law; (b) as part of an agreement to do anything in return for the gift, (c) if the gift has a value beyond what is normal and customary in the Company’s business; (d) if for directors, the gift is being made to influence the director’s actions as a member of the Board; or (e) if the gift could create the appearance of a conflict of interest.

 

 

XIV. Personal Investments

 

Covered Parties may not own, either directly or indirectly, a substantial interest in any business entity that does or seeks to do business with or is in competition with the Company without providing advance notice to the General Counsel. Investments in publicly traded securities of companies not amounting to more than one percent (1%) of that company’s total outstanding shares are permitted without such advanced approval.

 

XV. Antitrust Laws and Competition

 

The purpose of antitrust laws is to preserve fair and open competition and a free market economy, which are goals that the Company fully supports. Covered Parties must not directly or indirectly enter into any formal or informal agreement with competitors that fixes or controls prices, divides or allocates markets, limits the production or sale of products, boycotts certain suppliers or customers, eliminates competition or otherwise unreasonably restrains trade.

 

XVI. Political Contributions

 

Covered Parties may participate in the political process as individuals on their own time. However, Covered Parties must make every effort to ensure that they do not create the impression that they speak or act on behalf of the Company with respect to political matters. Company contributions to any political candidate or party or to any other organization that might use the contributions for a political candidate or party are prohibited. A Covered Party may not receive any reimbursement from corporate funds for a personal political contribution.

 

XVII. Discrimination and Harassment

 

The Company is an equal opportunity employer and will not tolerate illegal discrimination or harassment of any kind. The Company is committed to providing a workplace free of discrimination and harassment based on race, color, religion, age, gender, national origin, ancestry, sexual orientation, disability, veteran status, or any other basis prohibited by applicable law. Examples include derogatory comments based on a person’s protected class and sexual harassment and unwelcome sexual advances. Similarly, offensive or hostile working conditions created by such harassment or discrimination will not be tolerated.

 

XVIII. Environmental Protection

 

The Company is committed to managing and operating its assets in a manner that is protective of human health and safety and the environment. It is our policy to comply with both the letter and the spirit of the applicable health, safety and environmental laws and regulations and to attempt to develop a cooperative attitude with government inspection and enforcement officials. Covered Parties are encouraged to report conditions that they perceive to be unsafe, unhealthy or hazardous to the environment.

 

 

XIX. Personal Conduct and Social Media Policy

 

Covered Parties should take care when presenting themselves in public settings, as well as online and in web-based forums or networking sites. Each Covered Party is encouraged to conduct himself or herself in a responsible, respectful, and honest manner at all times. The Company understands that Covered Parties may wish to create and maintain a personal presence online using various forms of social media. However, in so doing Covered Parties are encouraged to include a disclaimer that the views expressed therein do not necessarily reflect the views of the Company. Covered Parties should be aware that even after a posting is deleted, certain technology may still make that content available to readers.

 

Covered Parties are prohibited from using or disclosing confidential, proprietary, sensitive or trade secret information of the Company, its partners, vendors, consultants or other third parties with which the Company does business. Harassment of other directors, officers or employees will also not be tolerated. A Covered Party may not provide any content to Company social media account that may be construed as political lobbying or solicitation of contributions, or use the sites to link to any sites sponsored by or endorsing political candidates or parties, or to discuss political campaigns, political issues or positions on any legislation or law.

 

XX. No Rights Created

 

This Code is a statement of certain fundamental principles, policies and procedures that govern the Company’s Covered Parties in the conduct of the Company’s business. It is not intended to and does not create any rights in any employee, customer, client, visitor, supplier, competitor, shareholder or any other person or entity. It is the Company’s belief that the policy is robust and covers most conceivable situations.

 

Change Log

 

REV		DATE		CHANGE		ORIGINATOR
		Date				Person

 

 

Exhibit 16.1

 

August 19, 2024

 

Office of the Chief Accountant

Securities and Exchange Commission

100 F Street, NE

Washington, D.C. 20549

 

Ladies and Gentlemen:

 

We have read the statements of Bolt Projects Holdings, Inc. (the “Company”) included under Item 4.01 of its Form 8-K dated August 19, 2024. We agree with the statements concerning our Firm under Item 4.01, in which we were informed of our dismissal on August 13, 2024. We are not in a position to agree or disagree with other statements contained therein.

 

Very truly yours,

 

/s/ WithumSmith+Brown, PC

 

New York, New York

 

Exhibit 21.1

 

Subsidiaries of Bolt Projects Holdings, Inc.

 

Subsidiary Name		Jurisdiction of Formation
Bolt Europe B.V.		Netherlands

Exhibit 99.1

 

BOLT THREADS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(IN THOUSANDS, except share and per share amounts)

 

		June 30, 2024				December 31, 2023
		(Unaudited)
Assets
Current assets:
Cash and cash equivalents		$	9,812			$	894
Restricted cash, current			—				40
Inventory			2,990				235
Prepaid expenses and other current assets			3,228				3,503
Total current assets			16,030				4,672
Deferred transaction costs			9,117				16,234
Other non-current assets			3,080				3,368
Total assets		$	28,227			$	24,274
Liabilities, Convertible Preferred Stock and Stockholders’ Deficit
Current liabilities:
Accounts payable		$	855			$	1,792
Accrued expenses and other current liabilities			1,983				1,053
Convertible notes, current			68,461				15,604
Related party convertible notes, current			16,941				2,133
Operating lease liabilities, current			347				359
Share-based lease termination liability			7,661				6,349
Total current liabilities			96,248				27,290
Operating lease liabilities, non-current			1,926				2,093
Long-term debt, non-current			13,903				13,340
Convertible preferred stock warrant liability			106				203
Total liabilities			112,183				42,926
Commitments and contingencies (Note 13)
Convertible preferred stock: $0.0001 par value, 42,559,738 shares authorized as of June 30, 2024 and December 31, 2023; 27,293,219 shares issued and outstanding as of June 30, 2024 and December 31, 2023; and aggregate liquidation preference of $222,345 as of June 30, 2024 and December 31, 2023			93,889				93,889
Stockholders’ Deficit:
Common stock: $0.0001 par value, 63,950,000 shares authorized as of June 30, 2024 and December 31, 2023; 11,312,318 shares issued and outstanding as of June 30, 2024 and December 31, 2023			1				1
Additional paid-in capital			284,075				283,880
Accumulated other comprehensive income (loss)			13				(14	)
Accumulated deficit			(461,934	)			(396,408	)
Total stockholders’ deficit			(177,845	)			(112,541	)
Total liabilities, convertible preferred stock, and stockholders’ deficit		$	28,227			$	24,274

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements

 

 

BOLT THREADS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS

For THE six months ended June 30, 2024 and 2023 (unaudited)

(IN THOUSANDS, EXCEPT Share and per share amounts)

 

		Six Months Ended June 30,
		2024				2023
Revenue		$	75			$	743
Cost of revenue			150				2,444
Gross loss			(75	)		$	(1,701	)
Operating expenses:
Research and development			2,503				4,425
Sales and marketing			123				206
General and administrative			12,179				13,223
Restructuring costs			—				3,684
Total operating expenses			14,805				21,538
Loss from operations			(14,880	)			(23,239	)
Other income (expense)
Property and equipment impairment			—				(19,283	)
Lease impairment			—				(2,272	)
Interest expense			(644	)			(1,724	)
Loss on extinguishment of convertible notes			(26,359	)			—
Remeasurement of convertible preferred stock warrant liability			97				—
Remeasurement of share-based termination liability			(1,312	)			—
Remeasurement of convertible notes			(17,087	)			—
Remeasurement of related party convertible notes			(5,548	)			—
Other income (expense), net			207				2,020
Total other income (expense), net			(50,646	)			(21,259	)
Loss before income taxes			(65,526	)			(44,498	)
Income tax expense (benefit)			—				—
Net loss		$	(65,526	)		$	(44,498	)
Other comprehensive income (loss):
Reporting currency translation			27				(4	)
Comprehensive loss		$	(65,499	)		$	(44,502	)
Weighted-average common shares outstanding, basic and diluted			15,846,786				10,470,533
Net loss per share, basic and diluted		$	(4.13	)		$	(4.25	)

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements

 

 

BOLT THREADS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ DEFICIT

for the six MONTHS ended june 30, 2024 and 2023 (UNAUDITED)

(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)

 

		Convertible Preferred																Additional								Accumulated Other				Total
		Stock								Common Stock								Paid-In				Accumulated				Comprehensive				Stockholders’
		Shares				Amount				Shares				Amount				Capital				Deficit				Income (Loss)				Deficit
Balances as of January 1, 2023			35,711,306			$	339,233				10,470,533			$	1			$	20,258			$	(338,688	)		$	7			$	(318,422	)
Stock-based compensation expense			—				—				—				—				447				—				—				447
Reporting currency translation adjustments			—				—				—				—				—				—				(4	)			(4	)
Net loss			—				—				—				—				—				(44,498	)			—				(44,498	)
Balances as of June 30, 2023			35,711,306			$	339,233				10,470,533			$	1			$	20,705			$	(383,186	)		$	3			$	(362,477	)
Balance as of January 1, 2024			27,293,219			$	93,889				11,312,318			$	1			$	283,880			$	(396,408	)		$	(14	)		$	(112,541	)
Stock-based compensation expense			—				—				—				—				195				—				—				195
Reporting currency translation adjustments			—				—				—				—				—				—				27				27
Net loss			—				—				—				—				—				(65,526	)			—				(65,526	)
Balances as of June 30, 2024			27,293,219			$	93,889				11,312,318			$	1			$	284,075			$	(461,934	)		$	13			$	(177,845	)

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements

 

 

BOLT THREADS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

For THE six months ended june 30, 2024 and 2023 (UNAUDITED)

(IN THOUSANDS)

 

		Six Months Ended June 30,
		2024				2023
Operating activities:
Net loss		$	(65,526	)		$	(44,498	)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation expense			1				1,088
Stock-based compensation			195				447
Amortization of right-of-use assets			—				774
Property and equipment impairment			—				19,283
Lease impairment			—				2,272
Non-cash interest expense			580				64
Non-cash debt issuance costs			9,417				—
Loss on extinguishment of convertible notes			26,359				—
Remeasurement of convertible preferred stock warrant liability			(97	)			—
Remeasurement of share-based termination liability			1,312				—
Remeasurement of convertible notes			17,087				—
Remeasurement of related party convertible notes			5,548				—
Changes in operating assets and liabilities:
Inventory			(2,755	)
Prepaid expenses and other current assets			269				(1,069	)
Other non-current assets			300				540
Accounts payable			(585	)			(585	)
Accrued expenses and other current liabilities			634				(157	)
Operating lease liabilities			(101	)			(544	)
Net cash used in operating activities			(7,362	)			(22,385	)
Investing activities:
Purchases of property and equipment			(13	)			(801	)
Net cash used in investing activities			(13	)			(801	)
Financing activities:
Proceeds from Bridge Financing Notes			18,671				—
Payments of deferred transaction costs			(2,371	)			—
Cash proceeds from related party notes			250				—
Payments for related party notes			(250	)			—
Net cash provided by financing activities			16,300				—
Exchange rate effect on cash, cash equivalents and restricted cash			(47	)			(6	)
Net change in cash, cash equivalents and restricted cash			8,878				(23,192	)
Cash, cash equivalents and restricted cash at beginning of period			934				25,274
Cash, cash equivalents and restricted cash at end of period		$	9,812			$	2,082
Cash, cash equivalents, and restricted cash information:
Cash and cash equivalents, beginning of period		$	894			$	22,932
Restricted cash, beginning of period			40				2,342
Cash, cash equivalents, and restricted cash, beginning of period		$	934			$	25,274
Cash and cash equivalents, end of period		$	9,812			$	1,312
Restricted cash, end of period			—				770
Cash, cash equivalents, and restricted cash, end of period		$	9,812			$	2,082
Supplemental cash flow disclosures:
Cash paid for taxes		$	—			$	—
Cash paid for interest		$	62			$	1,650
Supplemental disclosures of non-cash investing and financing activities:
Property and equipment in accounts payable and accrued expenses		$	—			$	156
Deferred transaction costs in accounts payable and accrued expenses		$	637			$	—

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements

 

 

1.	ORGANIZATION AND DESCRIPTION OF BUSINESS

 

Bolt Threads, Inc. (the “Company”) is a producer of biomaterials products. Its flagship product, b-silk, is a biodegradable protein polymer and replacement for silicone elastomer in beauty and personal care. Bolt Threads has a portfolio of other materials, including Mylo, a leather alternative made from mycelium, the root structure of mushrooms. The Company was incorporated in the state of Delaware in August 2009 and is headquartered in California.

 

2.	LIQUIDITY AND GOING CONCERN

 

The Company has not historically been profitable and has had negative cash flow from operations since inception. During the six months ended June 30, 2024, the Company incurred a net loss of $65.5 million. During the six months ended June 30, 2024, the Company used $7.4 million of cash in operations. As of June 30, 2024, the Company had an accumulated deficit of $461.9 million, a working capital deficit of $80.2 million, and cash and cash equivalents of $9.8 million.

 

The Company will need substantial capital to support its planned product development and operations. Based upon the Company’s current operating plan, it estimates that its cash and cash equivalents as of the issuance date of the interim condensed consolidated financial statements included in this report are insufficient for the Company to fund operating, investing, and financing cash flow needs for the twelve months subsequent to the issuance date of these consolidated financial statements. To obtain the capital necessary to fund the operations, the Company expects to obtain funds through public or private equity offerings, debt financing transactions, and refinancing or restructuring its current debt obligations.

 

These uncertainties raise substantial doubt regarding the Company’s ability to continue as a going concern for a period of twelve months subsequent to the issuance date of the interim condensed consolidated financial statements included in this report. Certain elements of the operating plan to alleviate the conditions that raise substantial doubt, including but not limited to the Company’s ability to achieve its operating cash flow targets and the ability to restructure its current debt, both of which are outside of the Company’s control. Accordingly, the Company cannot conclude that management’s plans will be effectively implemented within one year from the date the interim condensed consolidated financial statements are issued. These factors raise substantial doubt about the Company’s ability to continue as a going concern within one year from the date the interim condensed consolidated financial statements are issued. The interim condensed consolidated financial statements do not contain any adjustments that might result from the outcome of this uncertainty.

 

3.	SIGNIFICANT ACCOUNTING POLICIES

 

Basis of Consolidation and Presentation

 

The accompanying interim condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The interim condensed consolidated financial statements include the accounts and operations of the Company and its wholly-owned subsidiary. All intercompany transactions and balances have been eliminated in consolidation.

 

Unaudited Interim Condensed Consolidated Financial Statements

 

The accompanying interim condensed consolidated balance sheet as of June 30, 2024, the interim condensed consolidated statements of operations and comprehensive loss for the six months ended June 30, 2024 and 2023, the interim condensed consolidated statements of convertible preferred stock and stockholders’ deficit for the six months ended June 30, 2024 and 2023, and the interim condensed consolidated statements of cash flows for the six months ended June 30, 2024 and 2023, and amounts relating to the interim periods included in the accompanying notes to the interim condensed consolidated financial statements are unaudited. The unaudited interim condensed consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements, and in management’s opinion, includes all adjustments, consisting of only normal recurring adjustments, necessary for the fair presentation of the Company’s consolidated balance. Operating results for the interim periods presented are not necessarily indicative of results to be expected for the year ending December 31, 2024 or for any other interim period.

 

These interim condensed consolidated financial statements should be read in conjunction with the Company’s audited consolidated financial statements and notes for the years ended December 31, 2023 and 2022, which are included elsewhere in this filing.

 

 

Use of Estimates

 

The preparation of interim condensed consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the interim condensed consolidated financial statements and accompanying notes. Estimates and assumptions made by management include, but are not limited to, (i) the estimated fair value of convertible notes, convertible preferred stock and convertible preferred stock warrants, equity awards, and, (ii) estimating the useful lives of fixed assets, and (iii) determining incremental borrowing rates and the accounting for income taxes. Actual results could differ materially from those estimates.

 

Risks and Uncertainties

 

The Company’s future results of operations involve risks and uncertainties. Factors that could affect the Company’s future operating results and cause actual results to vary materially from expectations include, but are not limited to, rapid technological change, continued demand for the Company’s services, the retention of significant client, stability of global financial markets, cybersecurity breaches and other disruptions that could compromise the Company’s information or results, business disruptions that are caused by natural disasters or pandemic events, competition from substitute products and larger companies, government regulations and oversight, patent and other types of litigation, ability to protect proprietary technology, and dependence on key individuals.

 

Concentrations of Credit Risk

 

Financial instruments that potentially subject the Company to concentration of credit risk consist of cash, cash equivalents, restricted cash and accounts receivable. The Company’s cash and cash equivalents are held at financial institutions where account balances may at times exceed federally insured limits. Management believes the Company is not exposed to significant credit risk due to the financial strength of the depository institution in which the cash is held. The Company has no financial instruments with off-balance sheet risk of loss.

 

In March 2023, Silicon Valley Bank, a division of First Citizens Bank (“SVB”) failed and Federal Deposit Insurance Corporation (“FDIC”) took control of SVB. The Company maintains a significant amount of cash, cash equivalents, and restricted cash in SVB, and the Company’s deposits at this institution exceeds the insured limits. The Federal Reserve subsequently announced that account holders would be made whole and the Company was able to access all of the cash held at SVB. There is no guarantee that the Federal Reserve Board, the U.S. Treasury Department and the FDIC will provide access to uninsured funds in the future in the event of the closure of any other banks or financial institutions in a timely fashion or at all. Any inability to access or delay in accessing these funds could adversely affect the Company’s business, financial position, and liquidity.

 

The Company is dependent on a sole supplier for certain manufacturing activities for b-silk. An interruption in the supply of these materials could impact the Company’s ability to commercialize and manufacture inventory.

 

Total assets outside of the U.S. were 0.3% and 0.8% of total assets as of June 30, 2024 and December 31, 2023, respectively.

 

During the six months ended June 30, 2024 and 2023, separate single customers represented 72% and 97% of total revenue, respectively, which the Company attributes primarily to the fact that its commercial sales were in their early stages. Total revenue for each of the six months ended June 30, 2024 and 2023 was $0.1 million and $0.7 million, respectively. The Company had $0.1 million and immaterial outstanding customer accounts receivable as of June 30, 2024 and December 31, 2023, respectively.

 

 

Inventory

 

Inventory consists of finished b-silk powder. Inventory is recorded at the lower of the weighted average cost and net realizable value using the specific identification method based on contractual selling price. Write downs of b-silk inventory are recognized as a charge to cost of revenue. No impairment was recognized during the six months ended June 30, 2024 and 2023.

 

Employee Retention Credits

 

The Company has accounted for Employee Retention Credits (ERC) as a government grant which analogizes with International Accounting Standards (IAS) 20, Accounting for Government Grants and Disclosure of Government Assistance. IAS 20 indicates that income is recognized when it is considered that there is reasonable assurance the grant will be received and all necessary qualifying conditions, as stated under the ERC program, are met. Under IAS 20, income is recognized on a systematic basis over the periods in which the entity recognizes as expenses the related costs for which the grant is intended to compensate. The Company has elected to account for the credits on a gross basis within the interim condensed consolidated statements of operations and comprehensive loss.

 

Deferred Transaction Costs

 

Deferred transaction costs consist of direct legal, accounting, filing and other fees and costs directly attributable to the Company’s planned Merger (see Note 13 — Commitments and Contingencies). The Company capitalized deferred transaction costs prior to the close of the Merger and included within the interim condensed consolidated balance sheet. The Company will reclassify the deferred transaction costs related to the Merger to additional paid-in capital to offset the proceeds received upon closing of the Merger. The deferred transaction costs were $9.1 million and $16.2 million as of June 30, 2024 and December 31, 2023, respectively. In the event that the planned Merger is terminated, any deferred transaction costs will be immediately recognized in operating expenses within the interim condensed consolidated statements of operations and comprehensive loss.

 

Long-Lived Assets and Impairment Assessment

 

The Company reviews its depreciable long-lived assets, such as property and equipment, for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. An impairment loss may be recognized when the undiscounted cash flows expected to be generated by a long-lived asset (or asset group) are less than its carrying value. Any required impairment loss would be measured as the amount by which the asset’s (or asset group’s) carrying value exceeds its fair value and would be recorded as a reduction in the carrying value of the related asset and reflected in the interim condensed consolidated statements of operations and comprehensive loss. No impairment charges were recorded on any long-lived assets during the six months ended June 30, 2024.

 

In April 2023, the Company discontinued the production of Mylo due to the failure of several financing initiatives. As the Company had no alternative use for the Mylo-related assets and expected no resale value, the Company fully impaired these assets. Accordingly, the Company recorded $10.2 million of impairment expense of fixed assets relating to this event during the six months ended June 30, 2023.

 

In May 2023, the Company temporarily discontinued its research and development operations in California due to continuing projected negative cash flows and a lack of alternative sources of financing. The overall assets of the Company were no longer considered to provide future cash flows (with the exception of right-of-use (“ROU”) assets intended to be subleased), and the resale value of the Company’s assets was not considered material. Accordingly, the Company fully impaired its fixed assets. The Company recorded $9.1 million and $2.3 million of impairment expense of long-lived assets and leases, respectively, relating to this event during the six months ended June 30, 2023.

 

 

Convertible Notes

 

Convertible notes are regarded as hybrid instruments, consisting of a liability component and an equity component. The Company determined that it is eligible for the fair value option election in connection with the convertible notes (“Convertible Notes”) under the Bridge NPA issued in October 2023, in February 2024, and in June 2024, and the Ginkgo NPA Amendment issued in December 2023 (see Note 7 — Borrowings) as each instrument met the definition of a “recognized financial liability” which is an acceptable financial instrument eligible for the fair value option under ASC 825-10-15-4 and do not meet the definition of any of the financial instruments found within ASC 825-10-15-5 that are not eligible for the fair value option. Therefore, the Company elected to apply the fair value option to account for the Convertible Notes upon issuance. Accordingly, no features of the Convertible Notes are bifurcated and separately accounted for. At the date of issuance, the fair value for each instrument is derived from the instrument’s implied discount rate at inception. The Convertible Notes will be subsequently remeasured at each reporting period until its maturity, prepayment or conversion. The change in fair value of the convertible notes is recognized in the interim condensed consolidated statements of operations and comprehensive loss as the remeasurement of the convertible notes. Additionally, all issuance costs incurred in connection with the Convertible Notes were expensed during the period the debt is acquired and were included in general and administrative expenses within the interim condensed consolidated statement of operations and comprehensive loss.

 

Shared-Based Termination Liability

 

The shared-based termination liability is recorded for contract termination costs when the Company terminates a contract or stops using the product or service covered by the contract in exchange for an issuance of the new public company shares. The new public company shares are not considered to be indexed to the Company’s own shares at the time the termination occurred. Therefore, the share-based termination is classified as a liability as it does not qualify for the scope exception for derivative accounting under ASC 815-10. The shared-based termination liability is initially recorded at fair value on the termination date and remeasured at fair value each balance sheet date with the offset adjustments recorded in remeasurement of share-based termination liability within the interim condensed consolidated statements of operations and comprehensive loss (see Note 4 — Fair Value Measurements).

 

Common Stock Warrants

 

The Company accounts for common stock warrants as equity if the contract requires physical settlement or net physical settlement or if the Company has the option of physical settlement or net physical settlement and the warrants meet the requirements to be classified as equity. Common stock warrants classified as equity are initially measured at fair value using the Black-Scholes-Merton (“Black-Scholes”) option-pricing model using various inputs, including Company estimates of expected stock price volatility, term, risk-free rate and future dividends, on the issuance date and are not subsequently remeasured.

 

The Company accounts for common stock warrants as a liability if the Company can be required under any circumstances to settle the warrant by transferring cash or other assets. Common stock warrants classified as liabilities are initially recorded at fair value using the Black-Scholes option-pricing model on the issuance date and remeasured at fair value each balance sheet date with the offset adjustments recorded in remeasurement of common stock warrant liability within the interim condensed consolidated statements of operations and comprehensive loss.

 

Fair Value of Financial Instruments

 

The Company determines fair value based upon the exit price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants, as determined by either the principal market or the most advantageous market. The Company uses available market information and other valuation methodologies in assessing the fair value of financial instruments. Judgment is required in interpreting market data to develop the estimates of fair value and, accordingly, changes in assumptions or the estimation methodologies may affect the fair value estimates. Inputs used in the valuation techniques to derive fair values are classified based on a three-level hierarchy. These levels are:

 

	Level 1 —	Quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities.
	Level 2 —	Observable inputs other than quoted prices included within Level 1, including quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; and inputs other than quoted prices that are observable or are derived principally from, or corroborated by, observable market data by correlation or other means.6
	Level 3 —	Unobservable inputs are used when little or no market data is available.

 

 

The level in the fair value hierarchy within which a fair value measurement in its entirety falls is based on the lowest-level input that is significant to the fair value measurement in its entirety.

 

Financial assets and liabilities held by the Company measured at fair value on a recurring basis as of June 30, 2024 and December 31, 2023 include share-based termination liability, convertible notes, and convertible preferred stock warrant liability (see Note 4 – Fair Value Measurements).

 

The Company’s long-term debt, non-current, which is the Amended Senior Notes (see Note 7 – Borrowings), is classified within Level 2 of the fair value hierarchy. The carrying value of the long-term debt, non-current approximates the fair value as the interest rate on the Amended Senior Notes is based on a rate which reflects terms similar to those the Company could currently secure in the open market (see Note 7 – Borrowings).

 

For certain other financial assets and liabilities, including cash, cash equivalents, restricted cash, prepaid and other current assets, accounts payable, accrued expenses and other current liabilities, the carrying value approximates fair value due to the relatively short maturity period of these balances.

 

Revenue Recognition

 

The Company’s revenue contracts represent a single performance obligation to sell its products to customers. Sales are recorded at the time control of the product is transferred to customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for the goods sold. Control is the ability of customers to “direct the use of” and “obtain” the benefit from the Company’s products. In evaluating the timing of the transfer of control of products to customers, the Company considers several control indicators, including significant risks and rewards of products, the Company’s right to payment and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are shipped to customers.

 

In arrangements where another party is involved in providing products to a customer, the Company evaluates whether it acts as a principal or agent in the transaction. To the extent the Company acts as the principal, revenue is reported on a gross basis. To the extent the Company acts as the agent, revenue is reported on a net basis. In this evaluation, the Company considers if the Company obtains control of the specified goods or services before they are transferred to the customer, as well as other indicators such as the party primarily responsible for fulfillment, inventory risk, and discretion in establishing price. For the six months ended June 30, 2024 and 2023, the Company has determined it is acting as the principal in its revenue arrangements due to the Company being primarily responsible for fulfillment of the arrangement and having discretion in establishing the price.

 

The timing of revenue recognition may differ from the timing of invoicing to customers, and these timing differences result in receivables (billed or unbilled), contract assets, or contract liabilities (deferred revenue) on the Company’s interim condensed consolidated balance sheets. The Company records a contract asset when revenue is recognized prior to the right to invoice, or deferred revenue when revenue is recognized subsequent to invoicing. The Company had zero contract assets and deferred revenue as of June 30, 2024 and December 31, 2023.

 

Recent Accounting Pronouncements

 

Accounting Pronouncements Not Yet Adopted

 

In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures, which introduce key amendments to enhance disclosures for public entities’ reportable segments. The amendments require disclosure of significant segment expenses that are regularly provided to the chief operating decision maker (“CODM”) and included within each reported measure of segment profit or loss, an amount and description of its composition for other segment items to reconcile to segment profit or loss, and the title and position of the entity’s CODM. The amendments also expand the interim segment disclosure requirements. ASU 2023-07 is effective for fiscal years beginning after December 15, 2023, and interim periods within fiscal years beginning after December 15, 2024, with early adoption permitted and requires retrospective application to all prior periods presented in the financial statements. The Company is currently in the process of reviewing the guidance and evaluating its impact on its interim condensed consolidated financial statements.

 

 

In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures, which provides qualitative and quantitative updates to the rate reconciliation and income taxes paid disclosures, among others, in order to enhance the transparency of income tax disclosures, including consistent categories and greater disaggregation of information in the rate reconciliation and disaggregation by jurisdiction of income taxes paid. The amendments in ASU 2023-09 are effective for fiscal years beginning after December 15, 2024, with early adoption permitted. The amendments should be applied prospectively; however, retrospective application is also permitted. The Company is currently in the process of reviewing the guidance and evaluating its impact on its interim condensed consolidated financial statements.

 

4.	FAIR VALUE MEASUREMENTS

 

Fair value accounting is applied for all financial assets and liabilities that are recognized or disclosed at fair value in the financial statements on a recurring basis.

 

The table below presents the Company’s assets and liabilities measured at fair value on a recurring basis aggregated by the level in the fair value hierarchy as of June 30, 2024 (in thousands):

 

		Level 1				Level 2				Level 3				Total
Liabilities:
Convertible notes, current		$	—			$	—			$	68,461			$	68,461
Related party convertible notes, current			—				—				16,941				16,941
Share-based termination liability			—				—				7,661				7,661
Convertible preferred stock warrant liability			—				—				106				106
Total liabilities		$	—			$	—			$	93,169			$	93,169

 

The table below presents the Company’s assets and liabilities measured at fair value on a recurring basis aggregated by the level in the fair value hierarchy as of December 31, 2023 (in thousands):

 

		Level 1				Level 2				Level 3				Total
Liabilities:
Convertible notes, current		$	—			$	—			$	15,604			$	15,604
Related party convertible notes, current			—				—				2,133				2,133
Share-based termination liability			—				—				6,349				6,349
Convertible preferred stock warrant liability			—				—				203				203
Total liabilities		$	—			$	—			$	24,289			$	24,289

 

The convertible notes, current, related party convertible notes, current, share-based termination liability and convertible preferred stock warrant liabilities are classified as Level 3 in the fair value hierarchy as the valuations are based on unobservable inputs, which reflect the Company’s own assumptions incorporated in valuation techniques used to determine fair value; further discussion of these assumptions is set forth below. There were no transfers into or out of Level 3 of the fair value hierarchy during the periods presented.

 

Changes in the fair value measurement of Level 3 liabilities are related mainly to unrealized gains (losses) resulting from remeasurement each period and are reflected in the interim condensed consolidated statements of operations and comprehensive loss.

 

 

Convertible notes

 

The Company concluded that the Convertible Notes and its related features are within the scope of ASC 825, Financial Instruments, as a combined financial instrument, and the Company elected the fair value option where changes in fair value of the convertible notes are measured through the accompanying interim condensed consolidated statement of operations and comprehensive loss until settlement. The Convertible Notes liability represents a Level 3 measurement within the fair value hierarchy as it has been valued using certain unobservable inputs. These inputs include the underlying fair value of the equity instrument into which the Convertible Notes are convertible. The fair value is based on significant inputs not observable in the market, namely potential financing scenarios, the likelihood of such scenarios, the expected time for each scenario to occur, and the required market rates of return utilized in modeling these scenarios.

 

Share-based lease termination liability

 

The fair value of the share-based lease termination liability as of June 30, 2024 and December 31, 2023 was determined based on the expected exchange fair value of the Company’s common stock using the probability weighted expected return method (“PWERM”). The PWERM method is a scenario-based methodology that estimates the fair value of equity securities based upon an analysis of future values of the Company, assuming various outcomes. The significant inputs to the PWERM methodology included rights and preferences of each class of Company’s shares, the Company’s assumptions related to the expected timing of a liquidation event, lack of marketability and the Company’s estimated equity value and volatility on the valuation date, which are based on management’s analysis of comparable publicly traded peer companies.

 

Convertible preferred stock warrant liability

 

The fair value of the convertible preferred stock warrant liability as of June 30, 2024 and December 31, 2023 was determined using the PWERM. The fair value of the convertible preferred stock warrant liability as of June 30, 2023 was determined using a hybrid method, which combines elements of the option pricing model (“OPM”) and the PWERM. Weighting allocations are assigned to the OPM and PWERM methods factoring in a possible future dissolution event. The aggregate value of the Company was then used to allocate the total equity value of the Company to different classes of equity according to their rights and preferences.

 

Change in fair value of Level 3 liabilities

 

The change in the fair value of the Level 3 liabilities during the six months ended June 30, 2024 and 2023 was as follows (in thousands):

 

		Convertible notes
Balance at January 1, 2024		$	15,604
Note issuance during the period			13,587
Loss on extinguishment			22,183
Change in estimated fair value			17,087
Balance at June 30, 2024		$	68,461

 

The change in fair value of the convertible notes is recognized in the interim condensed consolidated statements of operations and comprehensive loss as the remeasurement of the convertible notes. There was no change in fair value attributable to the instrument-specific credit risk for the six months ended June 30, 2024.

 

		Related party convertible notes
Balance at January 1, 2024		$	2,133
Note issuance during the period			5,084
Loss on extinguishment			4,176
Change in estimated fair value			5,548
Balance at June 30, 2024		$	16,941

 

 

The change in fair value of the related party convertible notes is recognized in the interim condensed consolidated statements of operations and comprehensive loss as the remeasurement of related party convertible notes. There was no change in fair value attributable to the instrument-specific credit risk for the six months ended June 30, 2024.

 

		Share-based termination liability
Balance at January 1, 2024		$	6,349
Change in estimated fair value			1,312
Balance at June 30, 2024		$	7,661

 

The change in fair value of the share-based termination liability is recognized in the interim condensed consolidated statements of operations and comprehensive loss as the remeasurement of the share-based termination liability.

 

		Convertible preferred stock warrants liability
Balance at January 1, 2023		$	330
Change in estimated fair value			—
Balance at June 30, 2023			330
Balance at January 1, 2024		$	203
Change in estimated fair value			(97	)
Balance at June 30, 2024		$	106

 

The change in fair value of the convertible preferred stock warrants is recognized in the interim condensed consolidated statements of operations and comprehensive loss as the remeasurement of the convertible preferred stock warrant liability.

 

5.	SIGNIFICANT BALANCE SHEET COMPONENTS

 

Prepaid Expenses and Other Current Assets

 

Prepaid expenses and other current assets as of June 30, 2024 and December 31, 2023, consisted of the following (in thousands):

 

		June 30, 2024				December 31, 2023
Prepaid expenses		$	1,225			$	1,461
Deposits			63				149
Other current assets			1,940				1,893
Total prepaid expenses and other current assets		$	3,228			$	3,503

 

The Company has recorded $1.8 million of Employee Retention Credits (“ERC”) as other current assets, which are included in prepaid expenses and other current assets in the interim condensed consolidated balance sheets as of June 30, 2024 and December 31, 2023. Under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), the ERC is a refundable payroll tax credit for businesses and tax-exempt organizations that were affected during the COVID-19 pandemic. Eligible businesses, both for-profit and not-for-profit, that experienced a “significant” decline in gross receipts in any quarter (more than 50% decrease in 2020 from 2019, and more than 20% in 2021) could receive a quarterly refundable payroll tax credit. The Company believes it has reasonably assured qualification and submitted for refunds under the ERC program.

 

 

Other Non-Current Assets

 

Other non-current assets as of June 30, 2024 and December 31, 2023, consisted of the following (in thousands):

 

		June 30, 2024				December 31, 2023
Prepaid expenses, non-current		$	3,068			$	3,368
Property and equipment, net			12				—
Total other non-current assets		$	3,080			$	3,368

 

The prepaid expenses, non-current balance as of June 30, 2024 and December 31, 2023 represents the remaining balance of the upfront payment made by the Company in October 2022 for future technical services to be provided by Gingko Bioworks, Inc. (“Gingko”) (see Note 13 – Commitments and Contingencies).

 

Accrued Expenses and Other Current Liabilities

 

Accrued expenses and other current liabilities as of June 30, 2024 and December 31, 2023, consisted of the following (in thousands):

 

		June 30, 2024				December 31, 2023
Accrued professional services		$	1,619			$	714
Accrued payroll and benefits			185				304
Accrued interest expense			26				9
Other accrued expenses			153				26
Total accrued expenses and other current liabilities		$	1,983			$	1,053

 

6.	SHARE-BASED LEASE TERMINATION LIABILITY

 

In September 2023, the Company negotiated a contingent lease termination agreement with its landlord for the Berkeley facility lease (see Note 12 — Leases). If the Company issues 600,000 shares of the new public company to its landlord after the closing of the merger transaction with Golden Arrow Merger Corp. ("GAMC"), the Berkeley lease facility will be considered terminated as of September 10, 2023 pursuant to the lease termination agreement.

 

In October 2023, the Company entered into a settlement agreement with a supplier (see Note 13 — Commitment and Contingencies). If the Company pays the supplier $1.0 million and issues 150,000 shares of the new public company to the supplier after the closing of the merger transaction with GAMC, the Supply Agreement will be considered terminated as of July 13, 2023 pursuant to the settlement agreement.

 

The following assumptions were used to calculate the fair value of the share-based lease termination liability as of June 30, 2024 and December 31, 2023:

 

		June 30, 2024				December 31, 2023
Fair value of common stock(1)		$	3.13			$	4.08
Discount rate(2)			15	%			15	%
Probability(3)			5% – 95	%			10% – 90	%
Exchange ratio(4)			0.306				0.482

 

(1)	The fair value of Common Stock was determined by management with the assistance of an independent third-party valuation specialist.

(2)	The discount rate was the expected rate of return and was determined by management with the assistance of an independent third-party valuation specialist.

 

 

(3)

Scenario probability based on timing expectations of management that a qualified offering occurring was estimated at 95% and no qualified offering occurred was estimated at 5% as of June 30, 2024. Scenario probability based on timing expectations of management that a qualified offering occurring was estimated at 90% and no qualified offering occurred was estimated at 10% as of December 31, 2023.

(4)

The exchange ratio, as defined in the business combination agreement relating to the Merger, represents the number of new public company shares to be provided in exchange for the shares owned by existing Company shareholders. The exchange ratio is calculated by dividing the number of shares of the new public company constituting the aggregate transaction consideration by the number of fully diluted shares of the Company.

 

7.	BORROWINGS

 

Senior Secured Notes

 

In October 2022, the Company and Ginkgo executed several concurrent agreements including a Senior Secured Note Purchase Agreement (the “Ginkgo Note Purchase Agreement”), an amendment to the 2021 Technical Development Agreement (“2021 TDA”), a 2022 Technical Development Agreement (“2022 TDA”), a Pledge and Security Agreement, and Trademark and Patent Security Agreements (see Note 13 – Commitments and Contingencies).

 

Under the terms of the Ginkgo Note Purchase Agreement, the Company issued and sold to Ginkgo and Ginkgo agreed to purchase senior secured notes (the “Senior Secured Notes”) on October 14, 2022 (the “Notes Issuance Date”), in the aggregate original stated principal amount of $30 million. Upon its execution, the Ginkgo Note Purchase Agreement required the Company to pay Ginkgo $10.0 million as an upfront payment for future technical services to be provided by Ginkgo under the 2022 TDA. The remainder of the proceeds from the Senior Secured Notes issuance may be used by the Company for working capital and general corporate purposes. The Senior Secured Notes mature on October 14, 2024 (the “Maturity Date”) or earlier upon an event of default as defined by the Ginkgo Note Purchase Agreement.

 

The Ginkgo Note Purchase Agreement initially required quarterly interest payments on the outstanding principal amount of the Notes, from the Notes Issuance Date until and including the Maturity Date, at a rate equal to the three-month United States Treasury Security Rate on the date three business days prior to the applicable quarterly payment date (defined as (i) the last business day of each fiscal quarter beginning on the first such date prior to issuance of the Senior Secured Notes and (ii) the maturity date), plus six percent. The Senior Secured Notes initially carried a default rate of interest, due upon the occurrence and during events of default, as defined in the Ginkgo Note Purchase Agreement, of an incremental three percent.

 

Principal payments were initially due quarterly, starting in the first quarter subsequent to a qualified equity issuance, as defined in the Ginkgo Note Purchase Agreement, for cash proceeds greater than or equal to $50.0 million (defined as the “Amortization Date”), through the Maturity Date. As of June 30, 2024, no principal payments have been made under the Ginkgo Note Purchase Agreement. Senior Secured Notes issued under the Ginkgo Note Purchase Agreement, once repaid or prepaid, may not be reborrowed. The Senior Secured Notes may be prepaid at any time without penalty or premium.

 

The Senior Secured Notes are collateralized by substantially all of the Company’s assets, and each of its legal subsidiaries’ tangible and intangible assets. The Senior Secured Notes contain customary covenants and events of default. Additionally, the Senior Secured Notes contains subjective acceleration clauses to accelerate the maturity date of the Senior Secured Notes in the event that a material adverse change has occurred within the business, operations, or financial condition of the Company. As of June 30, 2024, the Company believes that the likelihood of the acceleration of the maturity date due to the subjective acceleration clauses is remote.

 

 

In December 2023, the Company entered into an amendment to modify the Ginkgo Note Purchase Agreement (“Ginkgo NPA Amendment”). Under the terms of the modification, $10.0 million of outstanding principal was exchanged for a $10.0 million convertible note (“Gingko Convertible Note”), which is subjected to the terms of the Bridge NPA as discussed in the next section. The fair value of the Ginkgo Convertible Notes was $10.4 million at issuance. The remaining $20.0 million of outstanding principal, $0.1 million of unamortized issuance costs, and accrued interest of $1.7 million related to the outstanding principal, were exchanged for amended senior secured notes with a principal balance of $11.8 million (the “Amended Senior Note”), a nonexclusive right to license Bolt Threads’ intellectual property relating to Mylo (“IP Transfer”), and a reduction of the prepaid balance relating to the 2022 TDA by $5.4 million (collectively, the “2023 Ginkgo Amendment”). The Amended Senior Note increased the interest rate from the Senior Secured Notes from the existing rate of treasury rate plus 6% per annum to a fixed rate of 12% per annum. In addition, the Amended Senior Note extended the maturity date from October 14, 2024 per the Senior Secured Notes to December 31, 2027. The Company evaluated the Ginkgo NPA Amendment and determined that it was required to be accounted for as a troubled debt restructuring in accordance with ASC 470-60, Debt — Troubled Debt Restructurings by Debtors. As a result of the IP Transfer, the Company recognized a gain of $2.5 million in other income (expense), net on the consolidated statement of operations and comprehensive loss during the year ended December 31, 2023. The Company recorded the Amended Senior Note at its net carrying value, which was calculated by taking the carrying value of the Senior Secured Notes immediately prior to the 2023 Ginkgo Amendment and reducing it by the fair value of assets transferred. The future undiscounted cash payments related to principal and interest exceed the carrying value of the Amended Senior Note upon issuance. Therefore, the Company did not record a gain on the restructuring of the Senior Secured Notes, and fees paid to third parties were expensed as incurred. The Company calculates and records interest expense on the Amended Senior Note using the effective interest method.

 

On March 10, 2023, the Company entered into a Limited Waiver to Senior Secured Note Purchase Agreement (the “Initial Waiver”) to: (i) provide a waiver for the violation in which the Company failed to deliver the audited financial statements of the Company and its subsidiary for the year ended December 31, 2022, and (ii) provide a waiver for the violation in which the Company failed to deliver the compliance certificate for the year ended December 31, 2022 during the period commencing as of June 30, 2023 and ending September 30, 2023. On November 2, 2023, the Company entered into a Limited Waiver to Senior Secured Note Purchase Agreement (the “Second Waiver”) to extend the waiver period of the Initial Waiver through December 31, 2023. On January 30, 2024, the Company entered into a Limited Waiver to Senior Secured Note Purchase Agreement (the “Third Waiver”) to extend the waiver period of the Second Waiver through February 29, 2024. As of June 30, 2024 and December 31, 2023, the Company was not aware of any other violations of the covenants.

 

In April 2024, the Company and Ginkgo entered into the second amendment to the Ginkgo Note Purchase Agreement (the “Ginkgo Note Purchase Agreement Amendment No. 2”). Pursuant to the Ginkgo Note Purchase Agreement Amendment No. 2, the interest from the Ginkgo NPA Amendment effective date until the occurrence of the SPAC transaction (see Note 13 — Commitment and Contingencies) shall be paid either entirely in cash or in kind by capitalizing and adding such accrued interest to the principal of the Amended Senior Notes at the option of the Company. In addition, upon the occurrence of the SPAC transaction, the Company shall prepay an aggregate principal amount of the Amended Senior Notes equal to the sum of (i) the product of (x) $250,000 and (y) the number of interest payments that were paid in kind, plus (ii) any accrued but unpaid interest amount.

 

As of December 31, 2023, the total outstanding principal balance under the Amended Senior Note was $11.8 million and had an effective interest rate of 8.3%. The carrying value of the Amended Senior Note was $13.3 million as of December 31, 2023, and is included in long-term debt, non-current, in the consolidated balance sheet.

 

As of June 30, 2024, the total outstanding balance under the Amended Senior Notes was $12.5 million and had an effective interest rate of 8.3%. The carrying value of the Amended Senior Note was $13.9 million as of June 30, 2024, and is included in long-term debt, non-current, in the interim condensed consolidated balance sheet.

 

For the six months ended June 30, 2024 and 2023, interest expense recognized on the Senior Secured Notes and Amended Senior Note was $0.6 million and $1.7 million, respectively. As of June 30, 2024 and December 31, 2023, there was immaterial accrued interest that is included within the accrued expenses and other current liabilities in the interim condensed consolidated balance sheets.

 

 

The following table summarizes the Company’s stated maturities and future scheduled principal repayments for the Amended Senior Notes as of June 30, 2024 (in thousands):

 

For the remainder of the year ending December 31,		Amount
2024		$	539
2025			—
2026			—
2027			11,959
2028			—
Thereafter			—
Total debt principal payments		$	12,498
Add: unamortized debt premium			1,405
Total Amended Senior Notes		$	13,903

 

Bridge Financing Notes

 

In October 2023, the Company entered into a Business Combination Agreement with GAMC and Beam Merger Sub, Inc., a wholly owned subsidiary of GAMC (see Note 13 — Commitment and Contingencies). Concurrently with the execution of the Business Combination Agreement, certain investors (the “PIPE Subscribers”), including the Sponsor (which refers to Golden Arrow Sponsor, LLC), entered into subscription agreements (the “Original PIPE Subscription Agreements”) with GAMC (see Note 13 — Commitment and Contingencies). In addition, each of the PIPE Subscribers also entered into a Note Purchase Agreement (“Bridge NPA”) with the Company. Pursuant to the Bridge NPA, the Company issued PIPE Subscribers convertible promissory notes (each, a “Bridge Convertible Note”) in the aggregate original stated principal amount of $7.0 million, out of which $2.0 million was issued to three related parties. The Bridge Convertible Notes accrue interest at 8% per annum, which is compounded quarterly. The Bridge Convertible Notes mature on October 4, 2024.

 

Upon the closing of a non-qualified financing, the outstanding principal and unpaid accrued interest of each Bridge Convertible Note shall, at the election of the majority Bridge Convertible Note holders, be converted into conversion shares. Upon the closing or series of related closings of a qualified financing, the outstanding principal and unpaid accrued interest of each Bridge Convertible Note shall be automatically and without requiring any PIPE Subscriber’s prior consent or approval converted into conversion shares. Immediately prior to the consummation of the SPAC transaction, the outstanding principal and unpaid accrued interest of each Bridge Convertible Note shall be automatically and without requiring any PIPE Subscriber’s prior consent or approval converted into conversion shares. In connection with a SPAC conversion, all interest on the Bridge Convertible Notes shall cease to accrue as of a date selected by the Company that is no more than 30 days prior to the consummation of the SPAC transaction.

 

The conversion price under the non-qualified financing conversion or qualified financing conversion is 80% of the lowest price paid per share for the equity securities sold by the Company in non-qualified financing or qualified financing. The conversion price under the SPAC conversion is calculated by dividing 80% of the Company’s equity value of $250.0 million by the Company’s fully-diluted shares.

 

In connection with the Bridge NPA, the Company also issued to certain PIPE Subscribers whose commitment is in excess of the Pro Rata Share with respect to such PIPE Subscribers a total of 4,534,468 warrants (the “Bridge Warrants”) to purchase shares of common stock of the Company at an exercise price of $0.001 per share. The Bridge Warrants were classified as a component of permanent stockholders’ equity within additional paid-in-capital and were recorded at the issuance date using a relative fair value allocation method in accordance with ASC 470-20. The Bridge Warrants are equity classified because they are freestanding financial instruments that are legally detachable and separately exercisable from the Bridge Convertible Notes, are immediately exercisable, do not embody an obligation for the Company to repurchase its shares, permit the holders to receive a fixed number of common shares upon exercise, are indexed to the Company’s common stock and meet the equity classification criteria. In addition, such Warrants do not provide any guarantee of value or return.

 

 

As the proceeds received from this transaction are not representative of the aggregate fair value of the Bridge Convertible Notes and Bridge Warrants, the Company recorded the Bridge Convertible Notes at fair value of $7.0 million upon issuance and did not allocate any of the proceeds to the Bridge Warrants. In addition, the Company determined that the Bridge Warrants were issued to the counterparties in return for both (1) the purchase of the Bridge Convertible Notes upon issuance in October 2023, and (2) the binding commitment to purchase PIPE securities in the future. As a result, the Warrants were considered a cost incurred to entice the counterparties to participate in the Bridge Convertible Notes financing transaction and a future PIPE transaction. Therefore, the $17.6 million fair value of the Warrants was accounted for as issuance costs of $3.5 million and deferred financing costs of $14.1 million based on a relative fair value of the Bridge Convertible Notes and the PIPE transaction, respectively.

 

At issuance, the fair value of the Bridge Convertible Notes, which includes the related party convertible notes of $2.0 million, was $7.0 million.

 

In February 2024, the Company issued to certain PIPE Subscribers convertible promissory notes (each, a “Second Bridge Convertible Note”) in the aggregate original stated principal amount of $5.0 million. The Second Bridge Convertible Notes are subject to the terms of the Bridge NPA. At issuance, the fair value of the Second Bridge Convertible Notes, which includes the related party convertible notes of $1.5 million, was $5.2 million. In addition, amounts of Second Bridge Convertible Notes reduced, on a dollar-for-dollar basis, the respective commitments of the PIPE Subscribers under the Original PIPE Subscription Agreements (see Note 13 — Commitments and Contingencies). As such, $2.5 million of deferred transaction costs was recognized as issuance costs in general and administrative expenses within the interim condensed consolidated statement of operations and comprehensive loss based on a relative fair value of the Bridge Convertible Notes, the PIPE transaction, and the Second Bridge Convertible Notes.

 

In June 2024, the Company agreed to issue and sell to certain PIPE Subscribers convertible promissory notes (each, a “Third Bridge Convertible Note”) in the aggregate original stated principal amount of $17.7 million, (including the assumed purchase of an additional $1.4 million of the Third Bridge Convertible Notes by the Sponsor, which was funded on July 1, 2024, and the assumed purchase of an additional $2.4 million of the Third Bridge Convertible Notes by the Sponsor, which was funded on July 24, 2024). The Third Bridge Convertible Notes are subject to the terms of the Bridge NPA and have substantially the same terms as the Bridge Convertible Notes and Second Bridge Convertible Notes, except that the conversion price under the SPAC conversion is calculated by dividing 40% of the Company Value by the Fully-Diluted Shares immediately prior to the conversion. The Company issued and sold to certain PIPE Subscribers, including the Sponsor, the Third Bridge Convertible Notes in the aggregate principal amount of $13.7 million and $4.0 million in June 2024 and July 2024, respectively. At issuance in June 2024, the fair value of the Third Bridge Convertible Notes, which includes the related party convertible notes of $8.4 million, was $31.7 million. In addition, amounts of Third Bridge Convertible Notes reduced, on a dollar-for-dollar basis, the respective commitments of the PIPE Subscribers under the Original PIPE Subscription Agreements and the 2024 PIPE Subscription Agreements (see Note 13 — Commitments and Contingencies). As such, $6.9 million of deferred transaction costs was recognized as issuance costs in general and administrative expenses within the interim condensed consolidated statement of operations and comprehensive loss based on a relative fair value of the Bridge Convertible Notes, the PIPE transaction, the Second Bridge Convertible Notes, and the Third Bridge Convertible Notes.

 

In June 2024, the Company entered into the Second Amendment to the Note Purchase Agreement (“Second Bridge NPA”). Pursuant to the Second Bridge NPA, the conversion price for the First Bridge Notes, the Gingko Bridge Note, and the Second Bridge Notes under the SPAC conversion was automatically adjusted from 80% to 40%. The Company evaluated the Second Bridge NPA in accordance with ASC 470-50 and concluded that the amendment should be accounted for as a debt extinguishment because of a substantial change to the conversion feature. The total fair value of the Bridge Convertible Notes, the Gingko Convertible Note, and the Second Bridge Convertible Notes on the date of the amendment was approximately $52.7 million, which resulted in the recognition of a loss on extinguishment of approximately $26.4 million on the Company’s interim condensed consolidated statements of operations for the six months ended June 30, 2024.

 

As of June 30, 2024, the fair value of the convertible notes and the related party convertible notes was $68.5 million and $16.9 million, respectively.

 

 

As of December 31, 2023, the fair value of the convertible notes and the related party convertible notes was $15.6 million and $2.1 million, respectively.

 

The following assumptions were used to calculate the fair value of the Convertible Notes as of June 30, 2024:

 

		Scenario 1				Scenario 2
Probability of each scenario(1)			95	%			5	%
Expected remaining term (years)(2)			0.08				0.26
Implied discount rate(3)			25.8	%			25.8	%

 

(1)	The probability of each scenario is based on timing expectations of management that a qualified offering occurring as of June 30, 2024 was estimated at 95% and no qualified offering occurred was estimated at 5%.

(2)	The expected remaining term represents the period of time that Bridge Convertible Notes are expected to be converted.

(3)	The implied discount rate was the expected rate of return and was determined by management with the assistance of an independent third-party valuation specialist.

 

The following assumptions were used to calculate the fair value of the Convertible Notes as of December 31, 2023:

 

		Scenario 1				Scenario 2
Probability of each scenario(1)			90	%			10	%
Expected remaining term (years)(2)			0.5				0.76
Implied discount rate(3)			25.8	%			25.8	%

 

(1)	The probability of each scenario is based on timing expectations of management that a qualified offering occurring as of December 31, 2023 was estimated at 90% and no qualified offering occurred was estimated at 10%.

(2)	The expected remaining term represents the period of time that Bridge Convertible Notes are expected to be converted.

(3)	The implied discount rate was the expected rate of return and was determined by management with the assistance of an independent third-party valuation specialist.

 

The following table summarizes the Company’s stated maturities and future scheduled principal repayments for the Convertible Notes, which includes related party convertible notes, as of June 30, 2024 (in thousands):

 

For the remainder of the year ending December 31,		Amount
2024		$	35,639
2025			—
2026			—
2027			—
2028			—
Thereafter			—
Total principal payments		$	35,639
Add: fair value option adjustment			49,763
Total Convertible Notes		$	85,402

 

Related Party Notes

 

In May 2024, the Company entered into promissory note agreements with four related parties (each a “Related Party Note”) for a total principal amount of $0.3 million. Pursuant to the agreements, the total interest amount for the Related Party Notes is $0.1 million. In addition, the outstanding principal and unpaid accrued interest shall be payable on written demand by the related parties or anytime on or after immediately following the closing of the Company’s next convertible note financing with aggregate proceeds of at least $5.0 million. During the quarter ended June 30, 2024, the Company repaid the entire outstanding balance including the accrued interest of $0.3 million.

 

For the six months ended June 30, 2024, interest expense recognized on the Related Party Notes was $0.1 million.

 

 

8.

WARRANTS

 

Common Stock Warrants

 

In connection with the Bridge Convertible Notes issued in October 2023 (see Note 7 — Borrowings), the Company issued warrants to purchase 4,534,468 shares of common stock exercisable at $0.001 per share. The Common Stock Warrants are classified as a component of equity and are immediately exercisable. The warrants expire on the earlier of: (1) the fifth anniversary; (2) immediately prior to the consummation of a change of control; or (3) immediately prior to the consummation of a SPAC transaction. All common stock warrants are outstanding as of June 30, 2024 and December 31, 2023.

 

Convertible Preferred Stock Warrants

 

In connection with the Company’s various historical debt and equity financing arrangements, the Company issued convertible preferred stock warrants to purchase shares of its various Series of convertible preferred stock.

 

The convertible preferred stock warrants are classified as liabilities, with changes in fair value recorded through earnings, as the underlying convertible preferred shares can be redeemed by the holders of these shares upon the occurrence of certain events that are outside of the control of the Company.

 

The following assumptions were used to calculate the fair value of the convertible preferred stock warrant liability as of June 30, 2024 under PWERM:

 

		June 30, 2024
Fair value of common stock(1)		$	3.13
Discount rate(2)			15	%
Probability(3)			5% – 95	%
Exercise Price(4)			$0.00 - $4.35
Expected term (in years)(5)			0.08 years

 

(1)	The fair value of Common Stock was determined by management with the assistance of an independent third-party valuation specialist.

(2)	The discount rate was the expected rate of return and was determined by management with the assistance of an independent third-party valuation specialist.

(3)	Scenario probability based on timing expectations of management that a qualified offering occurring as of June 30, 2024 was estimated at 95% and no qualified offering occurred was estimated at 5%.

(4)	The warrants have varying exercise prices, with certain warrants having an exercise price higher than the value of the Company’s common shares at the time of valuation.

(5)	The expected term represents the period of time that warrants granted are expected to be outstanding.

 

The following assumptions were used to calculate the fair value of the convertible preferred stock warrant liability as of December 31, 2023 under PWERM:

 

		December 31, 2023
Fair value of common stock(1)		$	4.08
Discount rate(2)			15	%
Probability(3)			10% – 90%
Exercise Price(4)			$0.00 – $4.35
Expected term (in years)(5)			0.50 years

 

(1)	The fair value of Common Stock was determined by management with the assistance of an independent third-party valuation specialist.

(2)	The discount rate was the expected rate of return and was determined by management with the assistance of an independent third-party valuation specialist.

 

 

(3)	Scenario probability based on timing expectations of management that a qualified offering occurring as of December 31, 2023 was estimated at 90% and no qualified offering occurred was estimated at 10%.

(4)	The warrants have varying exercise prices, with certain warrants having an exercise price higher than the value of the Company’s common shares at the time of valuation.

(5)	The expected term represents the period of time that warrants granted are expected to be outstanding.

 

The following table represents the warrants on convertible preferred stock outstanding as of June 30, 2024 and December 31, 2023:

 

Issued Date

Exercise Price

Number of shares

Expiration Date

Series A

January 2013

$

0.9342

42,817

January 2028

Series B

June 2015

3.39105

29,490

June 2030

Series C

July 2017

8.4716

19,889

July 2024

Series D

September 2017

16.03926

149,632

September 2024

Series E

July 2022

18.94618

52,781

July 2029

Total

294,609

 

9.	CONVERTIBLE PREFERRED STOCK

 

In October 2023, the Company amended and restated the articles of incorporation to add a conversion feature to the convertible preferred stock. Pursuant to the amendment, all outstanding convertible preferred stock automatically converts into the same number of shares of common stock upon the consummation of a business combination with GAMC. In addition, if any holder of shares of convertible preferred stock did not participate in a financing event within the time specified by the Company by (i) purchasing the Bridge Convertible Notes (see Note 7 — Borrowings) equal to at least 20% of such holder’s Pro Rata Share and (ii) entering into the Original PIPE Subscription Agreement (see Note 13 — Commitment and Contingencies) equal to at least 80% of such holder’s Pro Rata Share (collectively, the sum of (i) and (ii) is referred to as the “Commitment” with respect to each such holder), then the applicable portion of the shares of convertible preferred stock held by such holder automatically converted into shares of common stock at a ratio of one share of common stock for every ten shares of convertible preferred stock, with any remaining fraction being cancelled. The applicable portion of the shares of convertible preferred stock was calculated by multiplying the aggregate number of shares of convertible preferred stock held by such holder immediately prior to the initial closing of the financing of the Bridge Convertible Notes by a fraction, the numerator of which was equal to the dollar amount, if positive, by which such holder’s Pro Rata Share exceeds such holder’s Commitment, and the denominator of which was equal to such holder’s Pro Rata Share.

 

This amendment of the conversion feature was determined to be significant using the qualitative approach. As such, the Company accounted for the amendment as an extinguishment of the outstanding convertible preferred stock and recorded a gain on extinguishment of $216.4 million on the date of the filing of amended and restated articles of incorporation. The gain on the extinguishment of the convertible preferred stock was calculated by taking the difference between the net carrying value of $339.2 million of convertible preferred stock immediately prior to the amendment of the conversion feature and the fair value of $122.8 million of the new convertible preferred stock that for accounting purposes was deemed to be issued in connection with the amended and restated articles of incorporation. The gain on extinguishment was recorded as a deemed contribution in equity and was recorded as a decrease to the net loss attributable to common stockholders during the fourth quarter for the year ended December 31, 2023 and as an increase to additional paid-in capital.

 

In November 2023, the time for convertible preferred stockholders to participate in a financing event elapsed, which resulted in 8,418,087 shares of convertible preferred stock converted into 841,785 shares of common stock during the fourth quarter for the year ended December 31, 2023.

 

 

As of June 30, 2024 and December 31, 2023, the authorized, issued, and outstanding convertible preferred stock (collectively, the “Convertible Preferred Stock”) consisted of the following (in thousands, except share and per share amounts):

 

		Shares authorized				Shares issued and outstanding				Original Issue Price				Net proceeds				Aggregate liquidation preference
Series A(1)			5,531,643				5,337,315			$	0.9342			$	4,924			$	4,986
Series B			9,613,604				8,515,065				3.39105				28,785				28,875
Series C			5,793,003				5,081,613				8.4716				42,921				43,049
Series D			8,221,150				4,451,566				16.03926				69,453				71,400
Series E(2)			13,400,338				3,907,660				18.94618				73,092				74,035
			42,559,738				27,293,219							$	219,175			$	222,345

 

(1)	Includes 190,175 shares of Series A convertible preferred stock issued at a price of $0.88749 per share, representing a 5% discount from the original issuance price, from simultaneous extinguishment of convertible notes.

(2)	Includes 2,844,120 shares of Series E convertible preferred stock issued at a price of $16.10425 per share, representing a 15% discount from the original issuance price, from simultaneous extinguishment of convertible notes.

 

10.	STOCK-BASED COMPENSATION

 

Common Stock

 

At June 30, 2024 and December 31, 2023, there were 63,950,000 shares of common stock authorized, and 11,312,318 shares issued and outstanding, respectively. Holders of common stock are entitled to receive dividends whenever funds are legally available and when declared by the Board of Directors, subject to the priority rights of holders of all series of convertible preferred stock outstanding. Holders of common stock are entitled to one vote for each share of common stock held at all meetings of stockholders.

 

Common stock reserved for issuance as of June 30, 2024 and December 31, 2023, is as follows:

 

		June 30, 2024				December 31, 2023
Series A convertible preferred stock			5,337,315				5,337,315
Series B convertible preferred stock			8,515,065				8,515,065
Series C convertible preferred stock			5,081,613				5,081,613
Series D convertible preferred stock			4,451,566				4,451,566
Series E convertible preferred stock			3,907,660				3,907,660
Warrants outstanding for future issuance of convertible preferred stock			294,609				294,609
Warrants outstanding for future issuance of common stock			4,534,468				4,534,468
Stock options and restricted stock units			5,614,152				5,619,102
Stock options and restricted stock units available for future issuance			2,257,604				2,273,654
Total shares of common stock reserved			39,994,052				40,015,052

 

Equity Incentive Plan

 

Under both the 2009 Equity Incentive Plan (the “2009 Plan”) and the 2019 Equity Incentive Plan (the “2019 Plan” and together with the 2009 Plan, “the Plans”), the Company may grant stock options (both service-based and performance milestone-based) to employees and non-statutory stock options, restricted share awards (“RSAs”) and restricted stock units (“RSUs”) to employees, officers, and non-employee directors and consultants of the Company. Under the Plans, stock options may be immediately exercisable subject to repurchase or may be exercisable as determined by the Board of Directors. The Company has not allowed for early exercises of options under the Plans. Additionally, to date, the Company has not issued RSAs under the 2019 Plan. As of June 30, 2024 and December 31, 2023, there were options outstanding to purchase a total of 1,824,405 shares of common stock under the Plans, respectively, and 3,789,747 and 3,794,697 unvested RSUs, respectively. As of June 30, 2024 and December 31, 2023, 2,257,604 and 2,273,654 shares of common stock were available for issuance for either option or RSU grants under the 2019 Plan, respectively.

 

 

Service-based Stock Options

 

Option award activity for service-based stock options granted as of June 30, 2024, was as follows:

 

		Number of options outstanding				Weighted- Average Exercise Price				Weighted- Average Remaining Contractual Life (Years)				Aggregate Intrinsic Value (in thousand)
Balances as of January 1, 2024			1,478,033			$	5.19				4.8			$	754
Granted			—				—				—				—
Exercised			—				—				—				—
Expired			—				—				—				—
Forfeited			—				—				—				—
Balances as of June 30, 2024			1,478,033			$	5.19				4.3			$	391
Vested and exercisable at June 30, 2024			1,430,913			$	5.11				4.2			$	391

 

Stock options that vested during the six months ended June 30, 2024, had a weighted-average grant date fair value of $2.26. As reflected in the table above, no service-based options were granted or exercised during the six months ended June 30, 2024. There were 47,120 of service-based unvested options as of June 30, 2024 and $0.1 million of remaining unrecognized stock-based compensation expense, which is expected to be recognized over the weighted-average period of 0.8 years.

 

Performance Milestone-based Stock Options

 

Option award activity for performance milestone-based stock options granted as of June 30, 2024, was as follows:

 

		Number of options outstanding				Weighted- Average Exercise Price				Weighted- Average Remaining Contractual Life (Years)				Aggregate Intrinsic Value (in thousands)
Balances as of January 1, 2024			346,372			$	6.15				6.6			$	—
Granted			—				—				—				—
Exercised			—				—				—				—
Expired			—				—				—				—
Forfeited			—				—				—				—
Balances as of June 30, 2024			346,372			$	6.15				6.1			$	—
Vested and exercisable at June 30, 2024			115,457			$	6.15				6.1			$	—

 

As reflected in the table above, no performance milestone-based options were granted or exercised during the six months ended June 30, 2024. The total grant date fair value of performance milestone-based options that vested during the six months ended June 30, 2024 was immaterial. There were 230,915 of performance milestone-based unvested options and total unrecognized compensation costs were immaterial at June 30, 2024.

 

 

Restricted Stock Units

 

A summary of the Company’s RSU activity and related information is as follows:

 

		Number of RSUs Outstanding				Weighted- Average Grant Date Fair Value Per Share
Balances as of January 1, 2024			3,794,697			$	4.02
Granted			—				—
Vested			—				—
Forfeited			(4,950	)			1.83
Balances as of June 30, 2024			3,789,747			$	4.02

 

The RSUs have both a service-based condition or a performance milestone-based condition(s) and a liquidity event condition. The liquidity event condition is only satisfied 180 days after the consummation of the liquidity event, such as an IPO. As the satisfaction of the liquidity event condition for all RSUs is neither determinable nor probable as of June 30, 2024, no stock-based compensation expense was recognized as of June 30, 2024.

 

As of June 30, 2024, the Company had $15.3 million of remaining unrecognized stock-based compensation expense for RSUs, of which $11.3 million would have been recognized if all requirements of the liquidity event condition had also been satisfied on that date with the remaining $4 million still requiring satisfaction of the service or performance condition. Since the RSUs only vest 180 days after the consummation of a liquidity event which is currently not determinable or probable, the Company is unable to determine the weighted-average period over which the unrecognized cost will be recognized.

 

Stock-Based Compensation

 

The following table summarizes stock-based compensation expense recorded in each component of operating expenses in the Company’s interim condensed consolidated statements of operations and comprehensive loss (in thousands):

 

		Six Months Ended June,
		2024				2023
Research and development		$	—			$	4
Sales and marketing			—				1
General and administrative			195				442
Total stock-based compensation expense		$	195			$	447

 

11.	INCOME TAXES

 

The Company calculated the year-to-date income tax provision by applying the estimated annual effective tax rate to the year-to-date pre-tax income for each applicable jurisdiction and adjusted for discrete tax items in the period. The Company’s income tax expense was zero for the six months ended June 30, 2024 and 2023, respectively.

 

The Company’s effective tax rate for the six months ended June 30, 2024, and 2023, respectively, was zero percent. For the periods presented, the difference between the effective tax rate and the federal statutory rate of 21% primarily relates to certain non-deductible items, the absence of current income tax, and a full valuation allowance for deferred tax assets.

 

12.

LEASES

 

The Company leases and subleases certain office spaces, warehouses, manufacturing facility spaces and equipment under long-term, non-cancelable operating leases with various expiration dates through 2031. Finance leases were not material as of June 30, 2024 and December 31, 2023.

 

 

During September 2023, the Company negotiated a contingent lease termination agreement with its landlord for the Berkeley facility lease. If the Company issues 600,000 shares of the new public company to its landlord after the closing of the merger transaction with GAMC, the Berkeley lease facility will be considered terminated as of September 10, 2023 pursuant to the lease termination agreement. The Company recognized $4.8 million as a liability owed by the Company to its landlord in exchange for terminating its lease agreement early when the termination occurred. As of June 30, 2024, the lease termination liability of $6.1 million is included in share-based termination liability on the interim condensed consolidated balance sheets.

 

As of June 30, 2024, future payments associated with the Company’s operating lease liabilities were as follows (in thousands):

 

For the remainder of the year ending December 31,		Amount
2024		$	179
2025			358
2026			358
2027			358
2028			358
Thereafter			1,345
Total minimum lease payment		$	2,956
Less: amount representing interest			(683	)
Present value of operating lease obligations		$	2,273
Operating lease liabilities, current			347
Operating lease liabilities, non-current			1,926
Total operating lease liabilities		$	2,273

 

The components of the net lease costs reflected in the Company’s interim condensed consolidated statements of operations and comprehensive loss for the six months ended June 30, 2024 and 2023 were as follows (in thousands):

 

		Six Months Ended June,
		2024				2023
Operating lease costs		$	78			$	1,914
Variable lease costs			18				960
Short-term lease costs			41				91
Total lease costs		$	137			$	2,965

 

The weighted average remaining lease term and weighted average discount rate related to the Company’s ROU assets and lease liabilities for its operating leases as of June 30, 2024 and December 31, 2023, were as follows:

 

		June 30, 2024				December 31, 2023
Weighted-average remaining lease term (in years)			8.25				8.75
Weighted-average discount rate			6.8	%			6.8	%

 

Supplemental information concerning the cash flow impact arising from the Company’s leases recorded in the Company’s interim condensed consolidated statements of cash flows is detailed in the following table for the six months ended June 30, 2024 and 2023 (in thousands):

 

		Six Months Ended June,
		2024				2023
Cash paid for amounts included in the measurement of lease liabilities		$	180			$	1,704

 

 

13.	COMMITMENTS AND CONTINGENCIES

 

Litigation

 

From time to time, the Company may become involved in various litigation and administrative proceedings relating to claims arising from its operations in the normal course of business. Management believes that the ultimate resolution of any such matters will not have a material adverse effect on the financial position or results of operations of the Company.

 

Commitments and Contingencies

 

Liabilities for loss contingencies arising from claims, assessments, litigation, fines, and penalties and other sources are recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. Legal costs incurred in connection with loss contingencies are expensed as incurred.

 

Technical Development Agreement

 

During the year ended December 31, 2021, the Company entered into a 2021 TDA with Ginkgo. Under the 2021 TDA, the Company and Ginkgo will collaborate on certain projects that will use Ginkgo’s expertise in strain engineering and lab-scale fermentation processes, referred to as “technical services”. Ginkgo provided the Company with a credit of $5 million to apply against technical services under the 2021 TDA. In December 2023, the Company and Gingko entered into a termination agreement to terminate the 2021 TDA. During the six months ended June 30, 2024 and 2023, the Company applied zero and $0.7 million, respectively, of invoice charges received from Ginkgo for technical services provided. As of June 30, 2024 and December 31, 2023, the Company had no remaining credit to be applied against future technical services under the 2021 TDA.

 

As disclosed in Note 7 – Borrowings, in October 2022, the Company and Ginkgo executed several concurrent agreements including the Ginkgo Note Purchase Agreement, the amendment to the 2021 TDA, the 2022 TDA, a Pledge and Security Agreement, and Trademark and Patent Security Agreements.

 

Under the 2022 TDA and the amendment to the 2021 TDA, (collectively the “TDAs”), the Company and Ginkgo will continue to collaborate on certain projects using Ginkgo’s expertise in specialized engineering and lab-scale fermentation processes, for both b-silk and Mylo products. The TDAs include a royalty payment obligation based on future net sales if and when the first commercial sale of the products developed and improved under the TDAs occurs. Royalty payments, due in cash, are based on defined royalty rates for each country or jurisdiction in which the sale is made. In certain instances, a lump sum royalty payment may be due for a particular product, in which case no further royalty payments is required. As of June 30, 2024, the Company has not accrued a liability for royalty payment as no payment obligation or commercial sale of the products developed and improved under the TDAs has occurred.

 

Upon its execution, the Ginkgo Note Purchase Agreement required the Company to pay Ginkgo $10.0 million as an upfront payment for future technical services to be provided by Ginkgo under the 2022 TDA. As disclosed in Note 7 – Borrowings, in December 2023, the Company and Ginkgo executed the Ginkgo NPA Amendment to reduce the prepaid balance relating to the 2022 TDA by $5.4 million. As of June 30, 2024 and December 31, 2023, the Company had $3.9 million and $4.1 million, respectively, in credit remaining to be applied against future technical services under the 2022 TDA, which is recorded within prepaid expenses and other current assets and other non-current assets within the interim condensed consolidated balance sheets.

 

 

Cost Reduction Plan

 

On January 24, 2023, the Company’s Board of Directors approved a reduction in force of the Company’s workforce of up to 30 employees, effective on February 3, 2023. Employees affected by the Cost Reduction Plan obtained involuntary termination benefits that are provided pursuant to a one-time benefit arrangement.

 

During the six months ended June 30, 2024 and 2023, the Company incurred restructuring costs of zero and $3.7 million, respectively, consisting of employee related costs, including severance, benefits, equity compensation, contract termination costs and other costs. Of the total costs, $0.1 million are non-cash expenses related to the extension of post termination exercise periods of stock options.

 

The following table summarizes the Company’s restructuring liability as of June 30, 2024 (in thousands):

 

		Restructuring liability
Balance at January 1, 2024		$	240
Amounts paid or otherwise settled during the period			(240	)
Balance at June 30, 2024		$	—

 

During the period ended June 30, 2024, the Company paid all the remaining restructuring liability.

 

Supply Agreement

 

In August 2022, the Company entered into an Amended and Restated Manufacturing and Supply Agreement, referred to as the “Supply Agreement” with a supplier to procure appropriate raw materials, including pasteurized plant-based organic substrate. Under this Supply Agreement, the supplier rented an additional farm in the Netherlands beginning in 2023. During the test and commissioning phase of this farm, the Company has agreed to pay the supplier a fixed amount of $0.1 million per week for compensation of startup costs. These startup funding payments are capped at $1.1 million in the aggregate. During the six months ended June 30, 2024 and 2023, the Company did not make any payments related to this agreement.

 

On October 19, 2023, the Company entered into a settlement agreement with its supplier. If the Company pays the supplier $1.0 million and issues 150,000 shares of the new public company to the supplier after the closing of the merger transaction with GAMC, the Supply Agreement will be considered terminated as of July 13, 2023 pursuant to the settlement agreement. The Company recognized $1.2 million as a share-based termination liability owed by the Company to its supplier in exchange for terminating its Supply Agreement early upon the execution of the agreement during the fourth quarter of the year ended December 31, 2023. The Company also recognized a loss on supply agreement termination of $2.2 million, which is included in the consolidated statements of operations and comprehensive loss when the termination occurred during the fourth quarter for the year ended December 31, 2023. During the fourth quarter of the year ended December 31, 2023, the Company paid $0.6 million related to the settlement agreement. As of December 31, 2023, the supply agreement termination liability is included in accounts payable and share-based termination liability on the consolidated balance sheets of $0.4 million and $1.3 million, respectively. As of June 30, 2024, the supply agreement termination liability is included in accounts payable and share-based termination liability on the interim condensed consolidated balance sheets of $0.4 million and $1.5 million, respectively.

 

Business Combination Agreement

 

On October 4, 2023, the Company and GAMC, a Delaware corporation, entered into a Business Combination Agreement (the “Business Combination Agreement”) with Beam Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of GAMC (the “Merger Sub”). Pursuant to the Business Combination Agreement, (i) on the Closing Date, the Merger Sub will merge with and into the Company (the “Merger” and together with the other transactions contemplated by the Business Combination Agreement, the “Business Combination” or the “SPAC transaction”), with the Merger Sub ceasing to exist and the Company surviving as a wholly owned subsidiary of GAMC (ii) Golden Arrow will change its name to Bolt Projects Holdings, Inc.

 

 

Concurrently with the execution of the Business Combination Agreement, the PIPE Subscribers, including the Sponsor, entered into the Original PIPE Subscription Agreements with GAMC pursuant to which the PIPE Subscribers originally committed to purchase in a private placement up to 2,787,457 shares of GAMC Class A common stock (the “PIPE Shares”) at a purchase price of $10.00 per share at an aggregate purchase price of up to $27.9 million. The purchase of the PIPE Shares is conditioned upon, among other things, the consummation of the Business Combination and will be consummated immediately prior to or substantially concurrently with the closing date. Pursuant to the Original PIPE Subscription Agreement executed by the Sponsor, the Sponsor agreed to purchase 800,000 shares of GAMC Class A common stock at a purchase price of $10.00 per share for an aggregate purchase price of $8.0 million. However, the number of subscribed shares to be purchased thereunder by the Sponsor will be reduced by the number of shares of GAMC Class A common stock that have not been elected for redemption as of the expiration of the redemption period related to the Closing and that are held by certain individuals mutually agreed upon by GAMC and the Company at any time from the date of the execution of the agreement up to immediately prior to the expiration of such redemption period.

 

In February 2024, concurrently with the execution of the Second Bridge Convertible Notes, the PIPE Subscribers, including the Sponsor, entered into the First Amendment to the Original PIPE Subscription Agreements (“2024 PIPE Subscription Agreements”) with GAMC. Pursuant to the 2024 PIPE Subscription Agreements, the proceeds from the Second Bridge Convertible Notes will count towards the commitments for the purchase of PIPE shares under the Original PIPE Subscription Agreements. Therefore, the total number of shares the PIPE Subscribers were committed to purchase was reduced to 2,296,975 shares, including up to 656,499 shares from the Sponsor (subject to reduction as described in the preceding paragraph).

 

As of June 30, 2024, concurrently with the sale of the Third Bridge Convertible Notes, the PIPE Subscribers, including the Sponsor, entered into amendments to the PIPE Subscription Agreements with GAMC. Pursuant to the amendments, the proceeds from the Third Bridge Convertible Notes will count towards the commitments for the purchase of PIPE shares under the Original PIPE Subscription Agreements. Following such amendments, the PIPE Subscribers are committed to purchase up to 903,144 PIPE Shares at a purchase price of $10.00 per share. This amount will be reduced on a dollar-for-dollar basis by any such amount of Third Bridge Convertible Notes purchased by the Sponsor up to the Sponsor’s $3.8 million commitment.

 

In connection with the execution of the Merger Agreement, GAMC entered into a sponsor support agreement (the “Sponsor Support Agreement”) with the Sponsor and Bolt Threads. Pursuant to the Sponsor Support Agreement, the Sponsor has, among other things, agreed to vote all their shares of GAMC capital stock in favor of the approval of the Transaction. In addition, the Sponsor has agreed that 1,437,500 shares of New GAMC common stock issued in connection with the initial public offering (“IPO”) (the “Sponsor Shares”) will be unvested and subject to forfeiture as of the Closing and will only vest if, during the five year period following the Closing, (i) the volume weighted average price of New GAMC common stock equals or exceeds $12.50 (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any twenty trading days within a period of thirty consecutive trading days or (ii) there is a change of control of GAMC. Any Sponsor Shares that remain unvested after the fifth anniversary of the Closing will be forfeited. The Sponsor Support Agreement will terminate upon the earliest of (i) the Effective Time of the Merger, (ii) the termination of the Merger Agreement if the Closing does not occur, and (iii) the written agreement of the parties terminating the Sponsor Support Agreement.

 

14.

BASIC AND DILUTED NET LOSS PER SHARE

 

The following table sets forth the computation of basic and diluted net loss per share attributable to common stockholders (in thousands, except share and per share amounts):

 

		Six Months Ended June,
		2024				2023
Numerator:
Net loss attributable to common stockholders, basic and dilutive		$	(65,526	)		$	(44,498	)
Denominator:
Weighted-average common shares outstanding, basic and dilutive			15,846,786				10,470,533

 

The following securities were excluded due to their anti-dilutive effect on net loss per share attributable to common stockholders recorded in each of the periods:

 

		Six Months Ended June 30,
		2024				2023
Convertible preferred stock on an as-converted basis			27,293,219				35,711,306
Warrants to purchase preferred stock on an as-converted basis			294,609				294,609
Stock options outstanding			1,824,405				3,114,422
Total			29,412,233				39,120,337

 

 

The Convertible Notes were not included for purposes of calculating the diluted net loss per share as the conversion is contingent upon the completion of a future financing event, which had not occurred, and the contingency was not resolved as of June 30, 2024.

 

As of June 30, 2024 and 2023, no RSUs were vested as they did not meet the performance condition at the end of each reporting period. In addition, outstanding stock options with performance conditions were not vested as the performance conditions were not met as of June 30, 2024 and 2023. As the conditions were not satisfied at the end of each reporting period, the unvested shares were excluded when calculating diluted net loss per share.

 

15.	SUBSEQUENT EVENTS

 

The Company has evaluated subsequent events through August 19, 2024, which is the date the interim condensed consolidated financial statements were available to be issued.

 

Grant of RSU’s

 

On July 2, 2024, the Company granted 2,257,604 RSU’s to employees and vendors of the Company with vesting terms which require either only a liquidity event, or both a liquidity event and a requisite service period.

 

Exercise of Common Stock Warrants

 

Immediately prior to the closing of the Merger in August 2024, all outstanding common stock warrants were net exercised into shares of the Company’s common stock.

 

Exercise of Convertible Preferred Stock Warrants

 

Immediately prior to the closing of the Merger in August 2024, all outstanding convertible preferred stock warrants were converted into warrants to purchase the post-combination company’s common stock at the exchange ratio (the “Combination Exchange Ratio”), which is calculated by dividing the Company’s equity value of $250.0 million by the Company’s fully-diluted shares and by $10.00.

 

Business Combination

 

In August 2024, the Company completed the Merger with GAMC. The business combination was accounted for as a reverse recapitalization in accordance with U.S. GAAP, with GAMC treated as the acquired company and the Company treated as the accounting acquirer for financial reporting purposes. The business combination also qualifies as a liquidity event for the purposes of vesting the Company’s RSU awards. Upon the completion of the Merger, the Merger Sub merged with and into the Company, with the Merger Sub ceasing to exist and the Company surviving as a wholly owned subsidiary of GAMC. Each share of the Company’s common stock was exchanged for the post-combination company’s common stock based on the Combination Exchange Ratio. The Company’s outstanding share-based awards and warrants were automatically converted into share-based awards and warrants exercisable into the post-combination company common stock. In addition, GAMC changed its name to Bolt Projects Holdings, Inc.

 

PIPE Subscription Agreements

 

Upon the closing of the Merger in August 2024, the PIPE Subscribers purchased 464,801 PIPE shares for a total gross proceed of $4.6 million.

 

Conversion of Convertible Preferred Stock

 

Upon the closing of the Merger in August 2024, all outstanding convertible preferred stock are converted into shares of the Company’s common stock, which are then converted into the post-combination company’s common stock at the Combination Exchange Ratio.

 

Conversion of Convertible Notes

 

Upon the closing of the Merger, the principal balance and accrued interest of the Convertible Notes were converted into shares of post-combination company’s common stock.

 

F-28

 

Exhibit 99.2

 

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

 

Terms used in this Exhibit 99.2 but not defined herein shall have the meaning given to such terms in the Proxy Statement /Prospectus filed with the Securities and Exchange Commission by GAMC on July 18, 2024 in the section entitled “Frequently Used Terms” beginning on page 3 thereof, and such definitions are incorporated herein by reference.  

 

Introduction

 

We are providing the following unaudited pro forma condensed combined financial information to assist in your evaluation of the recently completed Business Combination.

 

The unaudited pro forma condensed combined balance sheet as of June 30, 2024 gives pro forma effect to the Business Combination as if they had been consummated as of that date. The unaudited pro forma condensed combined statement of operations and comprehensive loss for the six months ended June 30, 2024 and for the year ended December 31, 2023 give pro forma effect to the Business Combination as if it had occurred as of January 1, 2023. This information should be read together with Bolt Threads’ and GAMC’s respective audited and unaudited financial statements and related notes, “Bolt Threads Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “GAMC Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial information included in the Proxy Statement/Prospectus, the Form 8-K and the registrant’s other filings with the SEC.

 

The unaudited pro forma condensed combined balance sheet as of June 30, 2024 has been prepared using the following:

 

●

Bolt Threads’ unaudited consolidated balance sheet as of June 30, 2024, as included as Exhibit 99.1 to the Form 8-K; and

 

●

GAMC’s unaudited balance sheet as of June 30, 2024, as included in the Quarterly Report on Form 10-Q filed with the SEC on August 9, 2024.

 

The unaudited pro forma condensed combined statement of operations and comprehensive loss for the six months ended June 30, 2024 has been prepared using the following:

 

●

Bolt Threads’ unaudited consolidated statement of operations and comprehensive loss for the six months ended June 30, 2024, as included as Exhibit 99.1 to the Form 8-K; and

 

●

GAMC’s unaudited statement of operations for the six months ended June 30, 2024, as included in the Quarterly Report on Form 10-Q filed with the SEC on August 9, 2024.

 

The unaudited pro forma condensed combined statement of operations and comprehensive loss for the year ended December 31, 2023 has been prepared using the following:

 

●

Bolt Threads’ audited consolidated statement of operations and comprehensive loss for the year ended December 31, 2023, as included in the Proxy Statement/Prospectus; and

 

●

GAMC’s audited statement of operations for the year ended December 31, 2023, as included in the Proxy Statement/Prospectus.

 

 

Description of the Transaction

 

On October 4, 2023, GAMC entered into the Business Combination Agreement with Merger Sub and Bolt Threads. Pursuant to the terms of the Business Combination Agreement, the parties consummated a business combination transaction on August 13, 2024, pursuant to which Merger Sub merged with and into Bolt Threads, with Bolt Threads surviving the merger as a wholly owned subsidiary of GAMC. In connection with the Closing, GAMC was renamed “Bolt Projects Holdings, Inc.”

 

Concurrently with the execution of the Business Combination Agreement: (i) Bolt Threads entered into a Note Purchase Agreement pursuant to which it issued and sold an aggregate of $29.6 million of Bolt Threads’ Convertible Notes to the PIPE Subscribers (in October 2023, February 2024, June 2024, and July 2024), along with warrants to purchase Bolt Threads Common Stock, and (ii) GAMC entered into the Subscription Agreements with the PIPE Subscribers relating to the issuance and sale of PIPE Shares at a purchase price of $10.00 per share at Closing. An aggregate of 464,801 PIPE Shares were issued and sold by GAMC at the Closing.

 

The aggregate equity consideration paid to Bolt Threads’ security holders in the Business Combination was equal to the quotient of (i) $250,000,000 divided by (ii) $10.00. Immediately prior to the Closing: (i) all of the outstanding principal and accrued interest under Bolt Threads’ Convertible Notes was converted into shares of Bolt Threads Common Stock, and (ii) all of the shares of Bolt Threads Preferred Stock were converted into shares of Bolt Threads Common Stock. At the Closing, each share of Bolt Threads Common Stock that was issued and outstanding immediately prior to the effective time of the Merger and following the conversion of the Convertible Notes and the Bolt Threads Preferred Stock was cancelled and converted into the right to receive a number of shares of the Post-Combination Company Common Stock equal to the exchange ratio, which was approximately 0.2949.

 

Additionally, at the Closing:

 

●

each outstanding option to purchase Bolt Threads Common Stock, whether or not exercisable and whether or not vested, automatically converted into an option to purchase a number of shares of the Post-Combination Company Common Stock;

 

●

each outstanding award of restricted stock units relating to a share of Bolt Threads Common Stock was automatically converted into an award of restricted stock units covering a number of shares of the Post-Combination Company Common Stock; and

 

●

unless otherwise exercised into Bolt Threads Common Stock prior to the effective time of the Merger, each outstanding warrant to purchase Bolt Threads Preferred Stock automatically converted into a warrant to purchase shares of the Post-Combination Company Common Stock.

 

At the Closing, each outstanding share of GAMC Class B Common Stock automatically converted into and exchanged for a share of GAMC Class A Common Stock, and each outstanding share of GAMC Class A Common Stock was reclassified into a share of Post-Combination Company Common Stock.

 

Accounting Treatment for the Business Combination

 

Notwithstanding the legal form, the Business Combination is accounted for as a reverse recapitalization in accordance with U.S. GAAP. Under this method of accounting, Bolt Threads is deemed the accounting acquirer and GAMC is deemed the accounting acquiree. Accordingly, the transaction will be treated as the equivalent of Bolt Threads issuing stock for the net assets of GAMC, accompanied by a recapitalization and thus the Business Combination will be treated as a reverse recapitalization in accordance with GAAP. The net assets of GAMC will be stated at historical cost, with no goodwill or other intangible assets recorded.

 

Basis of Pro Forma Presentation

 

The historical financial information has been adjusted to give pro forma effect to events that are related and/or directly attributable to the Business Combination. The pro forma adjustments were determined in accordance with Article 11 of Regulation S-X and reflect acquisition-related adjustments. The pro forma adjustments do not give effect to any synergies, operating efficiencies, tax savings or cost savings that may be associated with the Business Combination. The adjustments presented on the unaudited pro forma condensed combined financial statements have been identified and presented to provide relevant information necessary for an accurate understanding of the Post-Combination Company upon consummation of the Business Combination.

 

 

The unaudited pro forma condensed combined financial information is for illustrative purposes only. The financial results may have been different had the companies always been combined. You should not rely on the unaudited pro forma condensed combined financial information as being indicative of the historical financial position and results that would have been achieved had the companies always been combined or the future financial position and results that the Post-Combination Company will experience. Bolt Threads and GAMC did not have any historical relationship prior to the merger. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.

 

The unaudited pro forma condensed combined financial information has been prepared based on actual redemptions of 28,664,341 Public Shares, representing approximately 99.7% of the shares issued in GAMC’s IPO, which were previously redeemed in March 2023, December 2023, and August 2024, in connection with the First Extension, Second Extension, and the Closing, respectively.

 

Upon the Closing, shares outstanding as presented in the unaudited pro forma condensed combined financial statements include the following:

 

		Shares				Percentage
Public Stockholders			85,659				0.3	%
Sponsor and GAMC Independent Directors(1)			9,802,702				30.5	%
Former Bolt Threads Securityholders under Business Combination Agreement(2)			20,557,069				63.9	%
PIPE Shares – Former Bolt Threads Securityholders			464,801				1.4	%
Advisors and former creditors(3)			1,250,000				3.9	%
Total Post-Combination Company Common Stock			32,160,231				100.0	%

 

(1)

Amount includes (i) 140,000 Founder Shares held by GAMC’s independent directors and (ii) 472,700 shares issued in connection with the Sponsor’s Bridge Warrants, which were automatically exercised into Bolt Threads Common Stock immediately prior to Closing and exchanged for the Post-Combination Company Common Stock.

(2)	Number of shares of Post-Combination Company Common Stock that issued to Bolt Threads securityholders pursuant to the Business Combination Agreement at Closing, based on shares of Bolt Threads capital stock outstanding as of August 13, 2024, and an exchange ratio of 0.2949.

(3)

Consists of (i) 600,000 shares of the Post-Combination Company to be issued to the landlord of Bolt Threads’ Berkeley lease, pursuant to a lease termination agreement shortly after Closing; (ii) 150,000 shares of the Post-Combination Company to be issued to Bolt Threads’ vendor, pursuant to a vendor termination agreement shortly after Closing; and (iii) 500,000 shares of shares of Post-Combination Company Common Stock to be issued to BTIG as partial compensation in lieu of the deferred cash underwriting commission otherwise due to BTIG at the Closing in connection with GAMC’s IPO. The number of shares issuable to BTIG will be equivalent to the greater of (i) 500,000 shares of Post-Combination Company Common Stock, or (ii) the number of shares calculated by dividing (x) $5,000,000 by (y) the volume-weighted average price of the Post-Combination Company Common Stock over the three trading days immediately preceding the initial filing of the registration statement relating to the resale of such shares, provided that clause (y) shall not be less than $8.00 per share. In no event will the number of shares issuable to BTIG be greater than 625,000.

 

 

For the purposes of calculating earnings per share, as well as comparative per share data, the following adjustments were made to the Post-Combination Company share count in order to align with pro forma adjustments:

 

		Shares
Total Post-Combination Company Common Stock			32,160,231
Vesting of Bolt Threads’ RSU shares(4)			902,523
Total Post-Combination Company Common Stock used to determine pro-forma EPS and Comparative Per Share Data			33,062,754

 

(4)

Represents the Bolt Threads RSU Awards that would have vested had the Business Combination occurred on January 1, 2023, which equates to 902,523 shares of the Post-Combination Company after the application of the Exchange Ratio. These Bolt Threads RSU Awards are not included within the expected ownership of the Post-Combination Company to the extent they contain one trigger for vesting occurring 180 days after Business Combination. While this requirement will not be fulfilled upon the Closing of the Merger, this vesting requirement is considered to be fulfilled for pro forma purposes, which assume the Business Combination occurred on January 1, 2023.

 

Additionally, subject to the rules of Nasdaq, the Board of Directors of the Post-Combination Company will retain broad authority after the Closing to issue additional capital stock without obtaining stockholder approval.

 

The Public Warrants issued in connection with the GAMC initial public offering and the Private Placement Warrants have been historically recognized as liabilities in accordance with Accounting Standards Codification Topic 815, Derivatives and Hedging. The warrants will remain liability-classified and recognized at fair value each reporting period subsequent to the Business Combination, with changes in fair value recognized as a component of earnings.

 

The unaudited pro forma condensed combined financial information does not include an income tax adjustment. Upon closing of the Business Combination, it is likely that the Post-Combination Company will record a valuation allowance against the total deferred tax assets as the recoverability of the tax assets is uncertain. The pro forma combined provision for income taxes does not necessarily reflect the amounts that would have resulted had the combined company filed consolidated income tax returns during the periods presented.

 

In December 2023 and concurrently with the Second Extension, the Sponsor agreed to deposit into the GAMC Trust Account an amount determined by multiplying $0.02 by the number of Public Shares outstanding following any redemptions of Public Shares, up to a maximum of $20,000, for each one-month extension until the extended date to consummate a business combination of September 19, 2024, unless the closing of the business combination shall have occurred earlier. In exchange, the Sponsor will receive a non-interest bearing, unsecured promissory note payable upon consummation of a business combination. No pro forma adjustment was recorded as a result of these extension payments, as such payments made by the Sponsor will have a net zero impact as they will be repaid to the Sponsor by GAMC upon the consummation of a business combination.

 

On July 11, 2024, GAMC issued a convertible promissory note to the Sponsor, pursuant to which GAMC may borrow an aggregate principal amount of up to $0.2 million (the “2024 Convertible Promissory Note”). The 2024 Convertible Promissory Note was non-interest bearing and payable upon the consummation of the Business Combination. At the Sponsor's discretion, the 2024 Convertible Promissory Note may be converted into warrants of the Post-Combination Company at a price of $1.50 per warrant, provided that the aggregate of such warrants together with any warrants issued upon conversions pursuant to the previously issued promissory notes do not exceed 1,000,000 warrants. The 2024 Convertible Promissory Note was repaid by GAMC in cash upon the closing of the Merger. Due to the timing of the withdraw and repayment of the principal, both of which occurred after June 30, 2024, the 2024 Convertible Promissory Note is not expected to have an impact on the cash balance of the Post-Combination Company on a pro forma basis. Accordingly, the unaudited pro forma condensed combined financial statements do not include adjustments related to the 2024 Convertible Promissory Note. 

 

 

Unaudited Pro Forma Condensed Combined Balance Sheet

As of June 30, 2024

(in thousands)

 

		Bolt Threads				GAMC				Transaction Adjustments						Pro Forma Combined
Assets
Cash and cash equivalents		$	9,812			$	29			$	4,648			d		$	9,335
											(6,764	)		e
											6,366			h
											(2,047	)		j
											(648	)		n
											(222	)		o
											(539	)		p
											3,972			q
											(5,272	)		f
Inventory			2,990				—										2,990
Prepaid expenses and other current assets			3,228				140										3,368
Total current assets			16,030				169										15,693
Cash held in Trust Account							6,366				(6,366	)		h			—
Deferred transaction costs			9,117								(7,106	)		e			—
											(2,011	)		q
Other non-current assets			3,080														3,080
Total assets		$	28,227			$	6,535									$	18,773
Liabilities, Convertible Preferred Stock and Stockholders’ Deficit
Current liabilities:
Accounts payable		$	855			$	1,557									$	2,412
Excise tax payable							2,871										2,871
Income tax payable							6										6
Convertible notes – current			68,461								(73,534	)		b			—
											1,101			a
											3,972			q
Promissory note – related party							648				(648	)		n			—
Convertible notes – current, related party			16,941				2,047				150			a			—
											(17,091	)		b
											(2,047	)		j
Share-based lease termination liability			7,661								(7,661	)		l			—
Accrued expenses and other current liabilities			1,983														1,983
Operating lease liabilities, current			347														347
Total current liabilities			96,248				7,129										7,619
Deferred underwriting fee payable							10,063				(10,063	)		k			—
Operating lease liabilities, non-current			1,926														1,926
Long-term debt, non-current			13,903								(539	)		p			13,364
Warrant liability			106				2,187				(106	)		m			2,187
Total liabilities			112,183				19,379										25,096
Common shares subject to possible redemption							6,357				(5,272	)		f			—
											(1,085	)		i
Bolt Convertible preferred stock			93,889								(93,889	)		c			—
GAMC Class A Common Stock							1				(1	)		i			—
Bolt Common Stock			1								3			c			5
											1			b
Additional paid-in capital			284,075								90,624			b			465,220
											93,886			c
											(18,338	)		i
											4,648			d
											11,428			g
											(13,870	)		e
											5,000			k
											7,661			l
											106			m
Accumulated deficit			(461,934	)			(19,202	)			(1,251	)		a			(471,561	)
											(11,428	)		g
											19,424			i
											5,063			k
											(222	)		o
											(2,011	)		q
Accumulated other comprehensive loss			13														13
Total stockholders’ deficit			(177,845	)			(19,201	)									(6,323	)
Total liabilities, convertible preferred stock, and stockholders’ deficit		$	28,227			$	6,535									$	18,773

 

 

Transaction Accounting Adjustments to the Unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2024

 

a — Represents the accrual of interest on the Bolt Threads Convertible Notes prior to conversion, which is added to the principal balance of the Convertible Notes.

 

b — Represents the conversion of the Bolt Threads Convertible Notes, plus accrued interest, into Bolt Threads Common Stock immediately prior to the consummation of the Business Combination, as well as the exchange of these shares into the Post-Combination Company Common Stock upon Closing pursuant to the terms of the Business Combination Agreement.

 

c — Represents the conversion of Bolt Threads Preferred Stock into Bolt Threads Common Stock immediately prior to the consummation of the Business Combination, as well as the exchange of these shares of Bolt Threads Common Stock into shares of the Post-Combination Company upon the Closing of the Merger.

 

d — Represents proceeds of $4.6 million received from the sale and issuance of 464,801 PIPE Shares at a purchase price of $10.00 per share under the PIPE Transaction.

 

e — Reflects the settlement of Bolt Threads’ estimated future transaction costs related to the Business Combination of $6.8 million, as well as $4.4 million transaction costs related to the Business Combination which Bolt Threads has capitalized as of June 30, 2024 and $2.7 million related to the fair value of Bridge Warrants which Bolt Threads has capitalized as of June 30, 2024.

 

f — Represents the redemption of 492,278 Public Shares of GAMC at the Closing of the Business Combination, which is in addition to the GAMC Public Shares previously redeemed in March 2023 and December 2023 in the amount of 26,649,519 and 1,522,544, respectively, in connection with the First Extension and Second Extension.

 

g — Represents the additional stock-based compensation charge expected to be incurred related to Bolt Threads’ RSU Awards through the Close of the transaction (August 13, 2024), assuming that the Business Combination occurred on January 1, 2023. This equates to an estimated 902,523 shares of Post-Combination Company Common Stock being issued after the application of an illustrative Exchange Ratio.

 

h — Represents the reclassification of net cash held in the Trust Account that became available for general use following the Business Combination.

 

i — Represents the effect of the reverse recapitalization, whereby each share of GAMC’s common stock outstanding immediately prior to the Business Combination converted into shares of Post-Combination Company Common Stock, in addition to the elimination of the historical of accumulated deficit of GAMC of $19.2 million, as well as $0.2 million of GAMC transaction expenses which occurred after June 30, 2024 and before the Close of the Business Combination, are added to the accumulated deficit within the pro forma tickmark o below.

 

j — Represents the repayment of $2.0 million of GAMC working capital loans, which are planned to be repaid in cash shortly after the Closing.

 

 

k — As part of the Merger, GAMC and Bolt Threads agreed with the underwriters of GAMC’s IPO to fully settle a $10.1 million underwriting fee payable in exchange for a payment of $0.5 million (which is included within the transaction costs adjustment within tickmark e above), as well as shares of Post-Combination Company Common Stock. The number of shares issuable will be equivalent to the greater of (i) 500,000 shares of Post-Combination Company Common Stock, or (ii) the number of shares calculated by dividing (x) $5,000,000 by (y) the volume-weighted average price of the Post-Combination Company Common Stock over the three trading days immediately preceding the initial filing of the registration statement relating to the resale of such shares, provided that clause (y) shall not be less than $8.00. In no event will the number of shares issuable to BTIG be greater than 625,000. For the purposes of the pro forma, the Company has assumed that 500,000 shares will be issued at a price of $10.00 per share.

 

l — In July 2023, Bolt Threads terminated a vendor mycelium supply contract early, and reached a final settlement agreement with the counterparty in October 2023. Under the terms of the final settlement, Bolt Threads will make a one-time payment of $1.0 million and issue to the counterparty 150,000 shares of Post-Combination Company Common Stock subsequent to the Closing. The one-time $1.0 million termination has been partially paid as of June 30, 2024, with a remaining $0.4 million reflected in accounts payable of Bolt Threads. Further, in September 2023, Bolt Threads negotiated an early termination of a lease in Berkeley, California. Under the terms of the lease termination agreement, Bolt Threads agreed to issue 600,000 shares of Post-Combination Company Common Stock to the landlord, subsequent to the Closing, or shortly thereafter. As of June 30, 2024, Bolt Threads recognized a liability of approximately $7.7 million, which reflects the fair value of Bolt Threads’ Common Stock required to settle these share-based termination penalties, on an as-converted basis into a cumulative 750,000 shares of Post-Combination Company Common Stock. This pro forma adjustment reflects the settlement of this liability, through the issuance of 750,000 shares of the Post-Combination Company.

 

m — Represents the reclassification of Bolt Threads convertible preferred stock warrants from liability classification to equity classification, as upon the Merger, the Convertible Preferred Stock Warrants became warrants to purchase Post-Combination Company Common Stock, which is permanent equity classified, rather than warrants to purchase Bolt Threads Convertible Preferred Stock, which is mezzanine equity classified.

 

n — Represents the repayment of GAMC’s related party promissory note, which became due on the date of the consummation of the Merger.

 

o —This adjustment reflects the settlement of GAMC’s transaction costs related to the business Combination of $0.2 million which occurred subsequent to June 30, 2024. There are no future GAMC transaction costs expected after the Close of the Business Combination.

 

p — Pursuant to an amendment to the Ginkgo Note Purchase Agreement entered in April 2024, Bolt Threads has an option to capitalize all accrued interest to the principal balance of the Amended Senior Note and is required to repay a portion of such interest upon the Business Combination. This adjustment reflects the amount of capitalized interest which is due to Ginkgo upon the consummation of the Business Combination.

 

q — Represents the receipt of $4.0 million in Bolt Threads Convertible Notes which were closed subsequent to June 30, 2024. In addition, this adjustment represents the expense of $2.0 million additional noncash issuance costs related to the Bolt Threads Convertible Notes issued in July 2024, which will be reclassified from deferred financing costs prior to the consummation of the Business Combination. The Bolt Threads Convertible Notes converted into Bolt Threads Common Stock immediately prior to the consummation of the Business Combination.

 

 

Unaudited Pro Forma Condensed Combined Statement of Operations and Comprehensive Loss

For the Year Ended December 31, 2023

(in thousands, except share and per share data)

 

		Bolt Threads				GAMC				Transaction Adjustments					Pro Forma Combined
Revenue		$	3,441			$	—								$	3,441
Cost of goods sold			4,846				—									4,846
Gross loss			(1,405	)			—									(1,405	)
Operating expenses:
Research and development			7,630				—									7,630
Sales and marketing			240				—									240
General and administrative			21,385				—				9,529					32,925
											2,011		hh
Restructuring Costs			3,973													3,973
Formation and operational costs			—				2,104				222		gg			2,326
Total operating expenses			33,228				2,104									47,094
Loss from operations			(34,633	)			(2,104	)								(48,499	)
Other income (expense)
Property and equipment impairment			(19,285	)			—									(19,285	)
Loss on lease termination			(319	)			—									(319	)
Loss on supply agreement termination			(2,211	)			—									(2,211	)
Lease impairment			(2,274	)			—									(2,274	)
Interest expense			(3,503	)			—									(3,503	)
Remeasurement of convertible preferred stock warrant liability			127				—				(127	)	aa			—
Remeasurement of common stock warrant liability			—				(1,896	)								(1,896	)
Remeasurement of share-based termination liability			(296	)			—				296		cc			—
Remeasurement of convertible notes			(281	)			—				281		ee			—
Remeasurement of related party convertible notes			(115	)			—				115		ee			—
Interest earned on investment held in Trust Account			—				3,177				(3,177	)	dd			—
Other income, net			5,070				8									5,078
Total other income			(23,087	)			1,289									(24,410	)
Income (loss) before provision for income taxes			(57,720	)			(815	)								(72,909	)
Provision for income taxes			—				(653	)								(653	)
Net (loss) income		$	(57,720	)		$	(1,468	)							$	(73,562	)
Other comprehensive gain (loss)			—				—									—
Reporting currency translation			(21	)			—									(21	)
Comprehensive loss			(57,741	)			(1,468	)								(73,583	)
Net income (loss) attributable to common stockholders, basic			158,666						ff
Net income (loss) attributable to common stockholders, diluted			(72,108	)					ff
Common Stock
Weighted-average common shares outstanding
Basic			11,677,673													33,962,253
Diluted			31,556,420													33,962,253
Net (loss) income per share
Basic		$	13.59												$	(2.17	)
Diluted		$	(2.29	)											$	(2.17	)
GAMC Class A Common Stock
Weighted-average common shares outstanding
Basic							13,114,869
Diluted							13,114,869
Net (loss) income per share
Basic						$	(0.10	)
Diluted						$	(0.10	)
GAMC Class B Common Stock
Weighted-average common shares outstanding
Basic							1,584,160
Diluted							1,584,160
Net (loss) income per share
Basic						$	(0.10	)
Diluted						$	(0.10	)

 

 

Unaudited Pro Forma Condensed Combined Statement of Operations and Comprehensive Loss

For the Six Months Ended June 30, 2024
(in thousands, except share and per share data)

 

		Bolt Threads				GAMC				Transaction Adjustments					Pro Forma Combined
Revenue		$	75				—								$	75
Cost of goods sold			150				—									150
Gross Margin			(75	)												(75	)
Operating expenses:
Research and development			2,503				—									2,503
Sales and marketing			123				—									123
General and administrative			12,179				—				1,899		bb			14,078
Formation and operational costs							851									851
Total operating expenses			14,805				851									17,555
Loss from operations			(14,880	)			(851	)								(17,630	)
Other income (expense)
Interest expense			(644	)			—									(644	)
Loss on extinguishment of convertible notes			(26,359	)			—									(26,359	)
Remeasurement of convertible preferred stock warrant liability			97				—				(97	)	aa
Remeasurement of common stock warrant liability							(146	)								(146	)
Remeasurement of share-based termination liability			(1,312	)			—				1,312		cc			—
Remeasurement of convertible notes			(17,087	)			—				17,087		ee			—
Remeasurement of related party convertible notes			(5,548	)			—				5,548		ee			—
Interest income – bank							2									2
Interest earned on investment held in Trust Account							118				(118	)	dd			—
Other income, net			207													207
Total other income			(50,646	)			(26	)								(26,940	)
Income (loss) before provision for income taxes			(65,526	)			(877	)								(44,570	)
Provision for income taxes							(17	)								(17	)
Net (loss) income			(65,526	)			(894	)								(44,587	)
Reporting currency translation			27				—									27
Comprehensive loss		$	(65,499	)		$	(894	)							$	(44,560	)
Common stock
Weighted-average common shares outstanding, basic and diluted			15,846,786													33,062,754
Net loss per share, basic and diluted			(4.13	)												(1.35	)
GAMC Class A Common Stock
Weighted-average common shares outstanding:
Basic							7,625,437
Diluted							7,625,437
Net (loss) income per share
Basic							(0.12	)
Diluted							(0.12	)
GAMC Class B Common Stock
Weighted-average common shares outstanding
Basic							140,000
Diluted							140,000
Net (loss) income per share
Basic							(0.12	)
Diluted							(0.12	)

 

 

Transaction Accounting Adjustments to the Unaudited Pro Forma Condensed Combined Statement of Operations and Comprehensive Loss for the Year Ended December 31, 2023 and the Six Months Ended June 30, 2024

 

aa — Represents the reversal of Bolt Threads Preferred Stock warrant liability fair value adjustments during the pro forma period, as the Bolt Threads Preferred Stock warrants became warrants to purchase Post-Combination Company Common Stock upon completion of the Business Combination, and therefore are classified as equity with no subsequent remeasurement to fair value.

 

bb — Pursuant to the Business Combination Agreement, at the Closing Date, each outstanding award of restricted stock units relating to a share of Bolt Threads Common Stock (“Bolt Threads RSU Awards”) automatically converted into an award of restricted stock units covering a number of shares of the Post-Combination Company Common Stock, on substantially similar terms and conditions as were applicable under such Bolt Threads RSU Awards, after applying Exchange Ratio. Pursuant to the Bolt Threads RSU Awards, certain awards that met service and/or performance vesting requirements will become fully vested 180 days after an IPO event, or immediately upon certain liquidity events. Accordingly, this adjustment reflects the compensation expense related to Bolt Threads RSU Awards that would have become fully vested through to the Close of the Business Combination on August 13, 2024.

 

The expense relating to Bolt Threads RSU Awards was calculated based off the amount of awards which became fully vested during the pro forma period, assuming the liquidity event condition was satisfied on January 1, 2023. The RSU compensation expense is a product of the amount of Bolt Threads RSU Awards vested during the pro forma period, through to the Close of the Business Combination on August 13, 2024, and the Bolt Threads Common Stock price at the time of initial issuance of the underlying award.

 

cc — Represents the elimination of the remeasurement of Bolt Threads’ share-based termination liability, which was a result of termination penalties to cancel a vendor mycelium supply agreement and a lease agreement in Berkeley, California. These share-based termination penalties require Bolt Threads to issue to the counterparties a cumulative 750,000 shares of the Post-Combination Company Common Stock shortly after the Closing. As the pro forma assumes the settlement of these share-based termination liabilities at the beginning of the pro forma period, the fair value remeasurement which occurred during the year ended December 31, 2023 and the six months ended June 30, 2024 is eliminated.

 

dd — Represents the elimination of interest income on the Trust Account assets during the pro forma period presented that would have not been earned had the Business Combination been consummated on January 1, 2023.

 

ee — To eliminate the change in fair value of Bolt Threads Convertible Notes and GAMC convertible notes which converted into Post-Combination Company Common Stock in conjunction with the Business Combination.

 

ff — Net income attributable to Bolt Threads common stockholders, basic, differs from Bolt Threads’ comprehensive loss due to a gain on extinguishment of convertible preferred stock of $216.4 million which occurred during the year ended December 31, 2023. In addition, the net income loss attributable to Bolt Threads common stockholders, diluted, differs from Bolt Threads’ comprehensive loss due to the gain on extinguishment of certain series of convertible preferred with dilutive impacts during the year ended December 31, 2023. These adjustments were made solely for the purposes of adjusting the numerator and denominator in the calculation of Bolt Threads’ basic and diluted earnings per share. Bolt Threads convertible preferred shares converted into shares of the Post-Combination Company Common Stock upon the completion of the Business Combination, which is assumed to have occurred on January 1, 2023. Accordingly, similar adjustments to the numerator used for earnings per share purposes are not made on the pro forma combined presentation of the Post-Combination Company.

 

gg — Represents transaction related expenses incurred by GAMC as a result of the Business Combination subsequent to June 30, 2024, but before this filing. This adjustment is not expected to have a continuing impact on the financial results of the Post-Combination Company.

 

hh — This adjustment represents the expense of $2.0 million additional noncash issuance costs related to the Bolt Threads Convertible Notes issued in July 2024, which will be reclassified from deferred financing costs prior to the consummation of the Business Combination.

 

 

UNAUDITED HISTORICAL COMPARATIVE AND PRO FORMA
COMPARATIVE PER SHARE DATA OF BOLT THREADS AND GAMC

 

The following table sets forth as of and for the six months ended June 30, 2024, selected per share information for GAMC Class A Common Stock and Bolt Threads Common Stock on a historical basis and for the combined company on a pro forma basis after giving effect to the Business Combination, and actual redemptions of an aggregate of 28,664,341 Public Shares, representing approximately 99.7% of the shares issued in GAMC’s IPO, which were previously redeemed in March 2023, December 2023, and August 2024, in connection with the First Extension, Second Extension, and the Closing, respectively.

 

		Bolt Threads				GAMC				Pro Forma Combined
As of June 30, 2024
Book value per share of common stock(1)		$	(11.22	)			(2.47	)		$	(0.20	)
For the six months ended June 30, 2024
Weighted average common shares outstanding – basic and diluted			15,846,786				n/a				33,062,754
Net income (loss) per common share – basic and diluted		$	(4.13	)			n/a			$	(1.35	)
Basic and diluted average shares outstanding of Class A common stock			n/a				7,625,437				n/a
Basic and diluted net income (loss) per share, Class A common stock			n/a			$	(0.12	)			n/a
Basic and diluted average shares outstanding of Class B common stock			n/a				140,000				n/a
Basic and diluted net income (loss) per share, Class B common stock			n/a			$	(0.12	)			n/a

 

(1)	Historical book value per share is computed by dividing the total stockholders’ equity (deficit) balance by the aggregate number of all shares of common stock outstanding at the end of the period.

 

The following securities were excluded for the purposes of calculating diluted earnings per share due to their anti-dilutive effect on net loss per share attributable to common stockholders recorded in each of the periods for the Post-Combination Company:

		Shares
Shares issuable to current Bolt Threads option holders (vested and unvested)			538,006
Shares issuable to current Bolt Threads RSU holders (unvested)(1)			880,805
Shares issuable to current Bolt Threads preferred stock warrant holders			86,878
GAMC Private Placement Warrants			5,000,000
GAMC Public Warrants			9,583,333
Total anti-dilutive Post-Combination Company Common Stock			16,089,022

 

(1)	Bolt Threads’ RSU shares which have vested on or before the Closing of the Business Combination on August 13, 2024 (with the assumption that the Business Combination occurred on January 1, 2023) are included within the total Post-Combination Company Common Stock used to determine pro-forma EPS.

 

The pro forma combined company net loss per share for the six months ended June 30, 2024 and year ended December 31, 2023 includes the combined net loss per share of Bolt Threads and GAMC on a pro forma basis as if the Business Combination was consummated on January 1, 2023 and, with respect to net book value per share of common stock, on June 30, 2024.

 

The pro forma combined per share data is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the Business Combination had been consummated at the beginning of the period presented, nor is it necessarily indicative of future operating results or financial position. The pro forma adjustments are estimates based upon information and assumptions available at the time of this filing.

 

 

Exhibit 99.3

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

Capitalized terms used but not defined in this Exhibit 99.3 shall have the meanings ascribed to them in the Current Report on Form 8-K to which this Exhibit 99.3 is attached (the “Form 8-K”) or, if not defined in the Form 8-K, the final prospectus and definitive proxy statement filed by Bolt Projects Holdings, Inc.. (formerly known as Golden Arrow Merger Corp.) prior to the consummation of the Business Combination (the “proxy statement/prospectus”).

 

The following discussion and analysis provides information that Bolt Threads’ management believes is relevant to an assessment and understanding of Bolt Threads’ consolidated results of operations and financial condition. The discussion should be read together with the historical audited annual consolidated financial statements as of and for the years ended December 31, 2023, and 2022 and the related respective notes thereto, in the Proxy Statement/Prospectus, and unaudited interim condensed consolidated financial statements as of June 30, 2024 and for the six month periods ended June 30, 2024 and 2023, and the related respective notes thereto, included as Exhibit 99.1 to the Form 8-K. The discussion and analysis should also be read together with the unaudited pro forma financial information for the year ended December 31, 2023 and the six months ended June 30, 2024. See “Unaudited Pro Forma Condensed Combined Financial Information” included as Exhibit 99.2 to the Form 8-K. This discussion may contain forward-looking statements based upon Bolt Threads’ current expectations, estimates and projections that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements due to, among other considerations, the matters discussed under “Risk Factors” in the Proxy Statement/Prospectus and “Cautionary Note Regarding Forward-Looking Statements.” Unless the context otherwise requires, all references in this section to “we,” “our,” “us” or “Bolt Threads” refer to the business of Bolt Threads, Inc., a Delaware corporation, and its subsidiaries prior to the consummation of the Business Combination, which will be the business of the Post-Combination Company and its subsidiaries following the consummation of the Business Combination.

 

Overview

 

We are primarily a producer of b-silk powder, which is a biodegradable protein polymer and replacement for silicone elastomer in beauty and personal care. We began commercializing b-silk in direct-to-consumer products in 2019 and in business-to-business products in 2020. We are headquartered in California.

 

Recent Developments

 

Business Combination

 

On October 4, 2023, Bolt Threads entered into the Business Combination Agreement with GAMC and Merger Sub pursuant to which, among other things, Merger Sub merged with and into Bolt Threads on August 13, 2024, with Bolt Threads surviving the merger and becoming a wholly-owned direct subsidiary of GAMC. Thereafter, Merger Sub ceased to exist and GAMC was renamed “Bolt Projects Holdings, Inc.”

 

The Business Combination is anticipated to be accounted for as a reverse recapitalization. Under this method of accounting, GAMC will be treated as the acquired company for financial statement reporting purposes. Bolt Threads will be deemed the accounting predecessor, and the Post-Combination Company will be the successor SEC registrant, which means that Bolt Threads consolidated financial statements for previous periods will be disclosed in the Post-Combination Company’s future periodic reports filed with the SEC.

 

Related Financings

 

In connection with the signing of the Business Combination Agreement, Bolt Threads and the PIPE Subscribers entered into the Note Purchase Agreement, pursuant to which Bolt Threads issued an aggregate of $29.6 million in Convertible Notes to the PIPE Subscribers , the proceeds of which Bolt Threads used or intends to use for working capital purposes. The Convertible Notes issued under the Note Purchase Agreement bore interest at a rate of 8% per annum from the date of issuance until the date of repayment, paid in kind on a quarterly basis. The Convertible Notes converted automatically into shares of Bolt Threads Common Stock immediately prior to the consummation of the Business Combination Agreement and in turn were converted into the right to receive shares of GAMC common stock as a result of the Business Combination, as part of the aggregate consideration of $250.0 million paid to Bolt Threads’ security holders under the Business Combination Agreement.

 

 

GAMC and the PIPE Subscribers also entered into subscription agreements pursuant to which the PIPE Subscribers originally committed to purchase in the PIPE Transaction up to 2,787,457 shares of GAMC Class A common stock at a purchase price of $10.00 per share. In February 2024 and June 2024, respectively, the Subscription Agreements were amended to reduce the commitments of the PIPE Subscribers to the extent such PIPE Subscribers purchased additional Convertible Notes from Bolt Threads. The sale of additional Convertible Notes from Bolt Threads at such times, rather than the sale of PIPE Shares at the Closing, was intended to ensure Bolt Threads had adequate working capital to support its operations during the pendency of the Business Combination. At the Closing, the PIPE Subscribers purchased 464,801 PIPE Shares at a purchase price of $10.00 per share.

 

Public Company Costs

 

Upon closing of the Business Combination, the Post-Combination Company began trading on NASDAQ under the ticker symbol “BSLK.” As a majority of Bolt Threads’ current management team and business operations will comprise the Post-Combination Company’s management and operations, the Post-Combination Company will need to hire additional personnel and implement procedures and processes to address public company regulatory requirements and customary practices. We expect the Post-Combination Company will incur additional annual expenses as a public company for, among other things, directors’ and officers’ liability insurance, director fees and additional internal and external accounting and legal and administrative resources, including increased audit and legal fees.

 

Modification of Ginkgo Debt

 

On December 29, 2023, we entered into an amendment (the “Ginkgo Note Purchase Agreement Amendment No. 1”) to our note purchase agreement, dated October 14, 2022 (the “Ginkgo Note Purchase Agreement”) with Ginkgo Bioworks, Inc. (“Ginkgo”) to modify our outstanding senior secured notes (the “Senior Secured Notes”) held by Ginkgo. Under the terms of the modification, $10.0 million of outstanding principal was exchanged for a convertible note with the same terms as the convertible notes issued pursuant to the Note Purchase Agreement entered into by the PIPE Subscribers. The remaining $20.0 million of outstanding principal was exchanged for Senior Secured Notes of $11.8 million, a nonexclusive right to license certain of our intellectual property, and a reduction of our prepaid balance relating to the 2022 Technical Development Agreement by $5.4 million. The interest rate of the remaining Senior Secured Notes was amended, from the existing rate of treasury rate plus 6.00% per annum, to 12.00% per annum, and the maturity date of the remaining Senior Secured Notes was extended, from the existing maturity date of October 14, 2024, to December 31, 2027. We evaluated the Ginkgo NPA Amendment and determined that it was required to be accounted for as a troubled debt restructuring in accordance with ASC 470-60, Debt — Troubled Debt Restructurings by Debtors. As a result of the IP Transfer, we recognized a gain of $2.5 million in other income (expense), net on the consolidated statement of operations and comprehensive loss during the year ended December 31, 2023. We recorded the Amended Senior Note at its net carrying value, which was calculated by taking the carrying value of the Senior Secured Notes immediately prior to the 2023 Ginkgo Amendment and reducing it by the fair value of assets transferred. The future undiscounted cash payments related to principal and interest exceed the carrying value of the Amended Senior Note upon issuance. Therefore we did not record a gain on the restructuring of the Senior Secured Notes, and fees paid to third parties were expensed as incurred. We calculate and record interest expense on the Amended Senior Note using the effective interest method.

 

In April 2024, we entered into a second amendment to the Ginkgo Note Purchase Agreement (the “Ginkgo Note Purchase Agreement Amendment No. 2”). Pursuant to the second amendment, the interest from the Ginkgo NPA Amendment effective date until the occurrence of the SPAC transaction was paid in kind by capitalizing and adding such accrued interest to the principal of the Amended Senior Notes at our option. In addition, upon the occurrence of the SPAC transaction, we paid an aggregate principal amount of the Amended Senior Notes equal to $0.5 million.

 

 

Impact of Macroeconomic Trends

 

Unfavorable conditions in the economy in the United States and abroad may negatively affect the growth of our business and our results of operations. For example, macroeconomic events, including rising inflation, the U.S. Federal Reserve raising interest rates, and recent and potential future disruptions in access to bank deposits and lending commitments due to bank failures, have led to economic uncertainty and volatility globally. The effect of macroeconomic conditions may not be fully reflected in our results of operations until future periods. Moreover, negative macroeconomic conditions could adversely impact our ability to obtain financing in the future on terms acceptable to us, or at all. In addition, the geopolitical instability and related sanctions could continue to have significant ramifications on global financial markets, including volatility in the U.S. and global financial markets. While the macroeconomic trends discussed above are not currently having a material adverse impact on our business or results of operations, if economic uncertainty increases or the global economy worsens, our business, financial condition and results of operations may be harmed.

 

Key Factors Affecting Our Results and Performance

 

We believe that our future performance and success depends on, to a substantial extent, our ability to capitalize on the following opportunities, which in turn is subject to significant risks and challenges, including those discussed below and in the section of the Proxy Statement/Prospectus titled “Risk Factors.”

 

Product Dependency

 

To date, substantially all of our revenue has been derived, and we expect substantially all of our revenue in the foreseeable future to continue to be derived, from sales of b-silk. Customer awareness of, and experience with, b-silk has been and is currently limited. As a result, b-silk has limited product and brand recognition within the beauty and personal care market as a substitute for silicone elastomers. We do not have a long history operating as a commercial company, and the novelty of b-silk, together with our limited commercialization experience, makes it difficult to evaluate our current business and predict our future prospects with precision. Furthermore, our ability to increase revenues by identifying additional commercial opportunities and our ability to obtain new customers depends on a number of factors, including our ability to offer higher quality products at competitive prices, the strength of our competitors, and the capabilities of our sales and marketing departments. If we are not able to continue to increase sales of our products to existing customers or to obtain new customers in the future, we may not be able to increase our revenues.

 

In early 2023, we made a decision to discontinue the commercial development of Mylo, a leather alternative made from mycelium, the root structure of mushrooms, to focus exclusively on the commercialization of b-silk.

 

Manufacturing b-silk

 

Currently, we rely on a single manufacturing partner, Laurus Bio, to produce b-silk. Adverse changes or developments affecting our relationship with Laurus Bio could impair our ability to produce b-silk. To the extent that we are dependent on any manufacturing partner, we are subject to the risks faced by that partner to the extent that such risks impede the partner’s ability to stay in business and produce b-silk in a timely manner to us.

 

Research and Development

 

Our future plans include investments in research and development and related product opportunities. We believe that we must continue to dedicate resources to research and development efforts to maintain a competitive position. However, if we do not receive significant revenue from these investments, if the investments don’t yield expected benefits or if we don’t have the needed funding to invest in the technology, our results of operations could be adversely impacted.

 

Components of Results of Operations

 

Revenue

 

We derive revenue principally from the sale of our b-silk biometric product (b-silk powder). We recognize revenue when the b-silk powder is shipped to customers, since at that time control is transferred to customers, in an amount that reflects the consideration we expect to be entitled to in exchange for the material.

 

 

Cost of revenue and gross profit (loss)

 

Cost of revenue consists of all the costs to manufacture, warehouse, and ship b-silk powder. These costs include contract manufacturers and inbound freight, internal and external quality assessments of work-in-process and finished goods inventory, warehousing, and packing and shipping supplies, and inventory impairment.

 

Our gross profit (loss) is equal to total revenue less total cost of revenue.

 

Operating expenses

 

Research and development

 

Our research and development expenses primarily consist of personnel-related costs, including salaries, employee benefits, stock-based compensation, both external research and development costs and external product and operations costs incurred under agreements with contract research and other professional services organizations, lab supplies, software and maintenance, and allocated depreciation of property and equipment and lease expenses for both pilot plant and factory facilities.

 

Sales and marketing

 

Our sales and marketing expenses primarily consist of personnel-related costs, including salaries, employee benefits, and stock-based compensation, marketing expenses, advertising expenses, and allocated lease expenses for facilities. We expect the Post-Combination Company will incur additional sales and marketing expenses as we expect to increase our focus on b-silk by hiring additional sales and marketing personnel and expanding operations to increase sales of b-silk.

 

General and administrative

 

Our general and administrative expenses primarily consist of personnel-related costs, including salaries, employee benefits, and stock-based compensation, professional services fees, software, and allocated depreciation of property and equipment and lease expenses for facilities. We expect the Post-Combination Company will incur additional annual general and administrative expenses as a public company for, among other things, directors’ and officers’ liability insurance, director fees and additional internal and external accounting and legal and administrative resources, including increased audit and legal fees. In addition, we expect the Post-Combination Company will incur additional general and administrative expenses as we will need to hire personnel due to the reduction in workforce during 2023, to scale and expand operations to support the planned increased sales of b-silk.

 

Other income (expense)

 

Impairment expense

 

Impairment expense relates to impairment charges recognized on our long-lived assets, consisting of property, equipment, and right-of-use assets, when it is determined that the fair value of the assets is less than their carrying value.

 

Loss on lease termination

 

Loss on lease termination relates to charges recognized on the termination of our Berkeley facility lease. Refer to Note 12 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for additional information.

 

Loss on supply agreement termination

 

Loss on supply agreement termination relates to charges recognized on the termination of our current agreement with one of our suppliers. Refer to Note 13 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for additional information.

 

 

Interest expense

 

Interest expense is associated with our outstanding debt, including amortization of debt discounts and issuance costs.

 

Loss on extinguishment of convertible notes

 

Loss on extinguishment of convertible notes is related to the Second Amendment to the Note Purchase Agreement, which we entered into during June 2024. Due to the substantial change to the conversion feature, we accounted for this amendment as a debt extinguishment. Refer to Note 7 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Remeasurement of preferred stock warrant liability

 

Certain financial instruments issued by us prior to the Business Combination are recognized as liabilities and carried at fair value on our balance sheet. Changes in the fair value of those instruments are captured in our results of operations. The warrant liability fair value adjustment consists of unrealized gains and losses as a result of marking our liability classified warrants to fair value at the end of each reporting period. We will continue to recognize changes in the fair value of such warrants until each respective warrant is exercised, expired, or qualifies for equity classification. For additional information on securities carried at fair value and fair value measurement please refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing.

 

Remeasurement of share-based termination liability

 

Certain share-based financial instruments issued by us as part of our lease and supply agreement terminations are recognized as liabilities and carried at fair value on our consolidated balance sheet. Changes in the fair value of those instruments are captured in our consolidated results of operations. The share-based termination liability fair value adjustment consists of unrealized gains and losses as a result of marking our liability classified share-based instruments to fair value at the end of each reporting period. We will continue to recognize changes in the fair value of such share-based instruments until the shares are issued upon the closing of the Business Combination. For additional information on securities carried at fair value and fair value measurement please refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing.

 

Remeasurement of convertible notes and related party convertible notes

 

Concurrently with our entry into the Business Combination Agreement, each of the PIPE Subscribers entered into a Note Purchase Agreement in which we issued each PIPE Subscriber a convertible promissory note. The convertible promissory notes are recognized as liabilities and carried at fair value on our consolidated balance sheet, due to our election of the Fair Value Option under ASC 825 — Financial Instruments. Changes in the fair value of the convertible promissory notes are captured in our consolidated results of operations. The convertible promissory notes fair value adjustment consists of unrealized gains and losses as a result of marking our notes to fair value at the end of each reporting period. We will continue to recognize changes in the fair value of such convertible promissory notes until each respective note is converted, prepaid, or matured. For additional information on securities carried at fair value and fair value measurement please refer to Note 4 and Note 7 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing.

 

Other income (expense), net

 

Other income (expense), net consists primarily of realized and unrealized gain and losses on foreign currency transactions, realized gain and losses on the sale of assets, interest income, and sublease income.

 

 

Income tax expense (benefit)

 

Income tax expense (benefit) primarily consists of income taxes in certain foreign and state jurisdictions in which we conduct business. Refer to Note 11 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for additional information.

 

Results of Operations for the Six Months Ended June 30, 2024 and 2023

 

The results of operations presented below should be reviewed in conjunction with the unaudited interim condensed consolidated financial statements and notes thereto included in Exhibit 99.1 to the Form 8-K. The following table sets forth our results of operations data for the periods presented:

 

		Six Months Ended June 30,								Dollar				Percentage
		2024				2023				Change				Change
		(in thousands)
Revenue		$	75			$	743			$	(668	)			(90	)%
Cost of revenue			150				2,444				(2,294	)			(94	)%
Gross loss			(75	)			(1,701	)			1,626				(96	)%
Operating expenses:
Research and development			2,503				4,425				(1,922	)			(43	)%
Sales and marketing			123				206				(83	)			(40	)%
General and administrative			12,179				13,223				(1,044	)			(8	)%
Restructuring costs			—				3,684				(3,684	)			(100	)%
Total operating expenses			14,805				21,538				(6,733	)			(31	)%
Loss from operations			(14,880	)			(23,239	)			8,359				(36	)%
Other income (expense)
Property and equipment impairment			—				(19,283	)			19,283				(100	)%
Lease impairment			—				(2,272	)			2,272				(100	)%
Interest expense			(644	)			(1,724	)			1,080				(63	)%
Loss on extinguishment of convertible notes			(26,359	)			—				(26,359	)			100	%
Remeasurement of preferred stock warrant liability			97				—				97				100	%
Remeasurement of share-based termination liability			(1,312	)			—				(1,312	)			100	%
Remeasurement of convertible notes			(17,087	)			—				(17,087	)			100	%
Remeasurement of related party convertible notes			(5,548	)			—				(5,548	)			100	%
Other income (expense), net			207				2,020				(1,813	)			(90	)%
Total other income (expense), net			(50,646	)			(21,259	)			(29,387	)			138	%
Loss before income taxes			(65,526	)			(44,498	)			(21,028	)			47	%
Income tax expense (benefit)			—				—				—				0	%
Net loss		$	(65,526	)		$	(44,498	)		$	(21,028	)			47	%

 

 

Comparison of the Six months ended June 30, 2024 and 2023

 

Revenue

 

Revenue decreased by $0.7 million, or 90%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to decreased sales of b-silk to our primary customer base. We have an agreement with one customer that contains minimum purchase requirements of $1 million and $1.5 million during the years ended December 31, 2023 and 2024, respectively. Prior to 2023, our primary customer base was evaluating and testing b-silk which led to smaller scale purchases and lower revenue. After completing their evaluations, beginning in the first quarter of 2023, our primary customer base made several large-scale purchases that led to a significant increase in revenue and meeting the minimum purchase requirement for 2023. Due to the large-scale purchases made during the latter half of 2023, we expect the level of purchases from our primary customer base to vary from quarter to quarter, but to meet the minimum purchase requirement in 2024.

 

Cost of revenue and gross profit (loss)

 

Cost of revenue decreased by $2.3 million, or 94%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2024, which was primarily attributable to the decrease of manufacturing costs relative to the decreased sales of our b-silk product.

 

Gross loss decreased by $1.6 million, or 96%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to decreased cost of revenue, partially offset by decreased revenue.

 

Operating expenses

 

Research and development

 

Research and development expenses were $2.5 million and $4.4 million for the six months ended June 30, 2024 and 2023, respectively. The expenses during the first six months of 2024 was related to the continued development of b-silk, while the expenses during the first six months of 2023 was related to the development of Mylo and b-silk. During the six months ended June 30, 2023, we focused on the development of a pilot production line in various locations, to assist in the eventual production of both Mylo and b-silk, while continuing to support development of Mylo and b-silk in third-party factory facilities. The decrease during the six months ended June 30, 2024, was related to the discontinuation of the production of Mylo in 2023, that led to the reduced focus on research and development for both Mylo and b-silk, which included a decrease in personnel headcount, and the shift in focus from in-house process development to supporting and assisting manufacturing partners with production-related processes. Spending on b-silk on a standalone basis increased year-over-year and focused on continued refinement of the manufacturing process, support for manufacturing b-silk at additional facilities and modification of the strain to achieve a variety of strategic objectives for customers.

 

Sales and marketing

 

Sales and marketing expenses decreased by $0.1 million, or 40%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to temporarily suspending our sales and marketing efforts until we could raise additional capital.

 

General and administrative

 

General and administrative expenses decreased by $1.0 million, or 8%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to decreased general and administrative spend as we reduced our general and administrative costs until we could raise additional capital, partially offset by debt issuance costs of $4.4 million.

 

Restructuring costs

 

Restructuring costs decreased by $3.7 million, or 100%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was attributable to employee costs incurred related to our reduction in workforce during the first six months of 2023.

 

 

Property and equipment impairment

 

Property and equipment impairment decreased by $19.3 million, or 100%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which is entirely a result of the impairment of property and equipment that was used previously in the manufacture of a product that we de-emphasized in order to adjust our strategic focus towards b-silk in early 2023.

 

Lease impairment

 

Lease impairment decreased by $2.3 million, or 100%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was entirely attributable to the ROU Assets related our leases in the Netherlands becoming impaired due to Mylo production being shut down in 2023.

 

Interest expense

 

Interest expense decreased by $1.1 million, or 63%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to an $18.2 million decrease in the principal balance of our Gingko debt as part of the Ginkgo Note Purchase Agreement Amendment No. 1 in December 2023.

 

Loss on extinguishment of convertible notes

 

Loss on extinguishment of convertible notes increased by $26.4 million, or 100%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023. The loss is a direct result of the Second Amendment to the Note Purchase Agreement in June 2024, which was accounted for as a debt extinguishment because of a substantial change to the conversion feature. Refer to Note 7 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Remeasurement of preferred stock warrant liability

 

Remeasurement of preferred stock warrant liability increased by $0.1 million, or 100%, for the for the six months ended June 30, 2024 compared to the six months ended June 30, 2023. The change in the preferred stock warrant liability is a direct result of the assumptions used in the option pricing model used to calculate the fair value as of each balance sheet date, including the expected timing of a liquidity event, our estimated equity value at such time, and estimated volatility. Refer to Note 4 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Remeasurement of share-based termination liability

 

Remeasurement of share-based termination liability increased by $1.3 million, or 100%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023. The share-based termination liability is related to transactions that took place during the third quarter of 2023. Further, the change in share-based termination liability is a direct result of the assumptions used in the model to calculate the fair value as of the balance sheet date. Refer to Note 4 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Remeasurement of convertible notes

 

The convertible notes are related to transactions that took place during the fourth quarter 2023 and the first and second quarters of 2024, which resulted in the remeasurement of convertible notes of $17.1 million for the six months ended June 30, 2024. Further, the remeasurement in the convertible notes is a direct result of the assumptions used in the model used to calculate the fair value as of the balance sheet date. Refer to Note 4 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Remeasurement of related party convertible notes

 

The related party convertible notes are related to transactions that took place during the fourth quarter 2023 and the first and second quarters of 2024, which resulted in the remeasurement of the related party convertible notes of $5.5 million for the six months ended June 30, 2024. Further, the remeasurement in the related party convertible notes is a direct result of the assumptions used in the model used to calculate the fair value as of the balance sheet date. Refer to Note 4 in our unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included elsewhere in this filing for more information.

 

Other income (expense), net

 

Other income (expense), net decreased by $1.8 million, or 90%, for the six months ended June 30, 2024 compared to the six months ended June 30, 2023, which was primarily attributable to a Federal Employee retention credit of $1.8 million recorded in 2023.

 

 

Results of Operations for the Years Ended December 31, 2023 and 2022

 

The results of operations presented below should be reviewed in conjunction with the audited annual consolidated financial statements and notes thereto included in the Proxy Statement/Prospectus. The following table sets forth our results of operations data for the periods presented:

 

		Years Ended December 31,								Dollar				Percentage
		2023				2022				Change				Change
		(in thousands)
Revenue		$	3,441			$	346			$	3,095				895	%
Cost of revenue			4,846				734				4,112				560	%
Gross loss			(1,405	)			(388	)			(1,017	)			262	%
Operating expenses:
Research and development			7,630				15,857				(8,227	)			(52	)%
Sales and marketing			240				1,699				(1,459	)			(86	)%
General and administrative			21,385				35,105				(13,720	)			(39	)%
Restructuring costs			3,973				—				3,973				100	%
Total operating expenses			33,228				52,661				(19,433	)			(37	)%
Loss from operations			(34,633	)			(53,049	)			18,416				(35	)%
Property and equipment impairment			(19,285	)			—				(19,285	)			100	%
Loss on lease termination			(319	)			—				(319	)			100	%
Loss on supply agreement termination			(2,211	)			—				(2,211	)			100	%
Leases impairment			(2,274	)			—				(2,274	)			100	%
Interest expense			(3,503	)			(914	)			(2,589	)			283	%
Remeasurement of preferred stock warrant liability			127				1,032				(905	)			(88	)%
Remeasurement of share-based termination liability			(296	)			—				(296	)			100	%
Remeasurement of convertible notes			(281	)			—				(281	)			100	%
Remeasurement of related party convertible notes			(115	)			—				(115	)			100	%
Other income (expense), net			5,070				1,230				3,840				312	%
Total other income (expense), net			(23,087	)			1,348				(24,435	)			(1,813	)%
Loss before income taxes			(57,720	)			(51,701	)			(6,019	)			12	%
Income tax expense (benefit)			—				—				—				0	%
Net loss		$	(57,720	)		$	(51,701	)		$	(6,019	)			12	%

 

Comparison of the Years Ended December 31, 2023 and 2022

 

Revenue

 

Revenue increased by $3.1 million, or 895%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to increased sales of b-silk to our primary customer base. We have an agreement with one customer that contains minimum purchase requirements of $1 million and $1.5 million during the years ended December 31, 2023 and 2024, respectively. Prior to 2023, our primary customer base was evaluating and testing b-silk which led to smaller scale purchases and lower revenue. After completing their evaluations, during the year ended December 31, 2023, our primary customer base made several large-scale purchases that led to a significant increase in revenue and meeting the minimum purchase requirement in 2023. We expect the level of purchases to continue to vary from quarter to quarter as we seek to expand our customer base moving forward.

 

Cost of revenue and gross profit (loss)

 

Cost of revenue increased by $4.1 million, or 560%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to the increase of manufacturing costs relative to the increased commercialization of our b-silk product.

 

Gross loss increased by $1.0 million, or 262%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to increased cost of revenue, partially offset by increased revenue.

 

 

Operating expenses

 

Research and development

 

Research and development expenses were $7.6 million and $15.9 million for the years ended December 31, 2023 and 2022, respectively. The expenses in both periods were related to the development of Mylo and b-silk. During the year ended December 31, 2022, we continued to focus on the development of a pilot production line in various locations, which we began in 2021, to assist in the eventual production of both Mylo and b-silk, while continuing to support development of Mylo and b-silk in third-party factory facilities. The significant decrease during the year ended December 31, 2023, was related to the discontinuation of the production of Mylo in 2023, which led to the reduced focus on research and development for both Mylo and b-silk, which included a decrease in personnel headcount, and the shift in focus from in-house process development to supporting and assisting manufacturing partners with production-related processes.

 

Sales and marketing

 

Sales and marketing expenses decreased by $1.5 million, or 86%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to decreased sales and marketing spend as we adjusted our strategic focus towards b-silk, in addition to temporarily suspending our sales and marketing efforts until we could raise additional capital.

 

General and administrative

 

General and administrative expenses decreased by $13.7 million, or 39%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to decreased general and administrative spend as we adjusted our strategic focus towards b-silk, in addition to pausing our general and administrative costs until we could raise additional capital.

 

Restructuring costs

 

Restructuring costs increased by $4.0 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was attributable to employee costs incurred related to our reduction in workforce during 2023.

 

Property and equipment impairment

 

Property and equipment impairment increased by $19.3 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which is entirely a result of the impairment of property and equipment that was used previously in the manufacture of Mylo that we de-emphasized in order to adjust our strategic focus towards b-silk in early 2023.

 

Loss on lease termination

 

Loss on lease termination increased by $0.3 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was entirely attributable to the termination of our Berkeley lease.

 

Loss on supply agreement termination

 

Loss on lease termination increased by $2.2 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was entirely attributable to the termination of one of our supply agreements.

 

Lease impairment

 

Lease impairment increased by $2.3 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was entirely attributable to the right of use assets related our leases in the Netherlands becoming impaired due to Mylo production being shut down in 2023.

 

 

Interest expense

 

Interest expense increased by $2.6 million, or 283%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, which was primarily attributable to interest related to the Ginkgo Note Purchase Agreement that we entered in to during the fourth quarter of 2022.

 

Remeasurement of preferred stock warrant liability

 

Remeasurement of preferred stock warrant liability decreased by $0.9 million, or 88%, for the year ended December 31, 2023 compared to the year ended December 31, 2022. The change in the preferred stock warrant liability is a direct result of the assumptions used in the option pricing model used to calculate the fair value as of each balance sheet date, including the expected timing of a liquidity event, our estimated equity value at such time, and estimated volatility. Refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for more information.

 

Remeasurement of share-based termination liability

 

Remeasurement of share-based termination liability increased by $0.3 million, or 100%, for the year ended December 31, 2023 compared to the year ended December 31, 2022. The share-based termination liability is related to transactions that took place during 2023. Further, the change in share-based termination liability is a direct result of the assumptions used in the model to calculate the fair value as of the balance sheet date. Refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for more information.

 

Remeasurement of convertible notes

 

The convertible notes are related to transactions that took place during the fourth quarter 2023, which resulted in the remeasurement of convertible notes of $0.3 million for the year ended December 31, 2023. Further, the remeasurement in the convertible notes is a direct result of the assumptions used in the model used to calculate the fair value as of the balance sheet date. Refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for more information.

 

Remeasurement of related party convertible notes

 

The related party convertible notes are related to transactions that took place during the fourth quarter 2023, which resulted in the remeasurement of the related party convertible notes of $0.1 million for the year ended December 31, 2023. Further, the remeasurement in the related party convertible notes is a direct result of the assumptions used in the model used to calculate the fair value as of the balance sheet date. Refer to Note 4 in our audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus for more information.

 

Other income (expense), net

 

Other income (expense), net increased by $3.8 million, or 312%, for the year ended December 31, 2023 compared to the year ended December 31, 2022, due to a Federal Employee retention credit of $1.8 million, and $0.3 million related to a gain on the sale of property and equipment, partially offset by a payment of $0.3 million related to an exit fee for a lease.

 

 

Liquidity and Capital Resources

 

Capital Requirements

 

We have incurred losses and negative cash flows from operations since our inception and have historically funded our operations primarily with the proceeds from sales of our convertible preferred stock, convertible notes, and Senior Secured Notes. As of June 30, 2024, we had cash and cash equivalents totaling $9.8 million and an accumulated deficit of $461.9 million. As described above, in the fourth quarter of 2023, we issued and sold $7.0 million in Convertible Notes to the PIPE Subscribers, in addition to the $10.0 million in Convertible Notes issued to Ginkgo in exchange for outstanding Senior Secured Notes as described below.

 

We will need substantial capital to support our product development and operations. Based upon our current operating plan, we estimate that our cash and cash equivalents as of the date of this filing are insufficient to fund operating, investing, and financing cash flow needs for the following twelve months.

 

These uncertainties raise substantial doubt regarding our ability to continue as a going concern for a period of twelve months subsequent to the date of this filing. Certain elements of the operating plan to alleviate the conditions that raise substantial doubt, including but not limited to the Company’s ability to achieve its operating cash flow targets and the ability to restructure its current debt, are outside of the Company’s control. Accordingly, we cannot conclude that management’s plans will be effectively implemented within one year. These factors raise substantial doubt about our ability to continue as a going concern for one year following the date of this filing. However, we expect that the proceeds to us from the Business Combination and related transactions (including the sale of Convertible Notes in June 2024 and the sale of PIPE Shares pursuant to the Subscription Agreements) will be sufficient to fund our operating, investing, and financing cash flow needs for the twelve months following the Closing.

 

Because we are in the growth stage of our business, we plan to make capital expenditures following the Business Combination and related transactions and may incur significant capital expenditures in the future as we expand our research and business. In addition, cash requirements relate primarily to working capital needed to operate and grow our business, including funding operating expenses, growth in working capital requirements to support increased revenue, continued expansion of our markets, continued development and expansion of our products, expanding fermentation capacity with our manufacturing partners, and the possible repayment or refinancing of any long-term debt that may be incurred. Following the Business Combination, we may still require additional capital to respond to technological advancements, competitive dynamics or technologies, customer demands, business opportunities, challenges, acquisitions, or unforeseen circumstances and may determine to engage in equity or debt financings or enter into credit facilities for other reasons. Any equity securities issued subsequent to the Business Combination may provide for rights, preferences or privileges senior to those of holders of common stock in the Post-Combination Company. If we raise funds by issuing debt securities, these debt securities would have rights, preferences, and privileges senior to those of holders of common stock in the Post-Combination Company. The terms of debt securities or borrowings could impose significant restrictions on our operations. Additionally, the credit market and financial services industry have experienced recent periods of volatility and uncertainty that could impact the availability and cost of equity and debt financing. We cannot guarantee that any necessary additional financing will be available on terms favorable to us, or at all. Additionally, even if we raise sufficient capital through additional equity or debt financings, strategic alternatives or otherwise, there can be no assurance that the revenue or capital infusion will be sufficient to enable us to develop our business to a level where it will be profitable or generate positive cash flow. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to grow or support our business and to respond to business challenges could be significantly limited.

 

Senior Secured Notes

 

On December 29, 2023, we entered into the Ginkgo Note Purchase Agreement Amendment No. 1 to modify our Senior Secured Notes. Under the terms of the modification, $10.0 million of outstanding principal was exchanged for an equal amount of Convertible Notes with the same terms as the convertible notes issued pursuant to the Note Purchase Agreement entered into by the PIPE Subscribers. The remaining $20.0 million of outstanding principal, $0.1 million of unamortized issuance costs, and accrued interest of $1.7 million related to the outstanding principal, were exchanged for amended senior secured notes with a principal balance of $11.8 million, a nonexclusive right to license Bolt Threads’ intellectual property relating to Mylo, and a reduction of the prepaid balance relating to the 2022 TDA by $5.4 million. The Amended Senior Note increased the interest rate from the Senior Secured Notes from the existing rate of treasury rate plus 6% per annum to a fixed rate of 12% per annum. In addition, the Amended Senior Note extended the maturity date from October 14, 2024 per the Senior Secured Notes to December 31, 2027. We evaluated the Ginkgo Note Purchase Agreement Amendment and determined that it was required to be accounted for as a troubled debt restructuring in accordance with ASC 470-60, Debt — Troubled Debt Restructurings by Debtors. As a result of the IP Transfer, we recognized a gain of $2.5 million in other income (expense), net on the consolidated statement of operations and comprehensive loss during the year ended December 31, 2023. We recorded the Amended Senior Note at its net carrying value, which was calculated by taking the carrying value of the Senior Secured Notes immediately prior to the 2023 Ginkgo Amendment and reducing it by the fair value of assets transferred. The future undiscounted cash payments related to principal and interest exceed the carrying value of the Amended Senior Note upon issuance. Therefore we did not record a gain on the restructuring of the Senior Secured Notes, and fees paid to third parties were expensed as incurred. We calculate and record interest expense on the Amended Senior Note using the effective interest method.

 

 

Under the Ginkgo Note Purchase Agreement relating to the Senior Secured Notes, we are required to provide audited financial statements to the lender within a certain time after the end of each fiscal year. We failed to meet that requirement related to the 2022 audited financial statements and as such, Ginkgo had the right to require immediate repayment of the full balance of principal and accrued interest. However, we subsequently received waivers from Ginkgo. Accordingly, we are in compliance with this requirement as of the date of this filing.

 

On April 3, 2024, we entered into a second amendment to the Ginkgo Note Purchase Agreement. Such amendment provides that (i) cash interest payments due from the date of the amendment until the occurrence of the Business Combination may, at our option, be paid in kind by capitalizing and adding such accrued interest to the principal of the Amended Senior Note and (ii) immediately following the Business Combination, we will prepay $250,000 in aggregate principal amount of the Amended Senior Note for each interest payment that was so paid in kind, in addition to accrued but unpaid interest on the principal amount prepaid. In connection with the closing of the Business Combination, we paid an aggregate amount of $0.5 million.

 

Cash Flow Summary — Six months ended June 30, 2024 and 2023

 

The following table summarizes our cash flows for the periods presented:

 

		Six months ended, June 30,
		2024				2023
		(in thousands)
Cash used in operating activities		$	(7,362	)		$	(22,385	)
Cash used in investing activities			(13	)			(801	)
Cash provided by financing activities			16,300				—
Exchange rate effect on cash, cash equivalents and restricted cash			(47	)			(6	)
Net increase (decrease) in cash and cash equivalents and restricted cash			8,878				(23,192	)

 

Operating Activities

 

Net cash used in operating activities was $7.4 million for the six months ended June 30, 2024, a decrease of $15.0 million compared to the six months ended June 30, 2023. The decrease in net cash used in operating activities was primarily attributable to a decrease in operating expenses and non-cash adjustments, being partially offset by the timing of settling receivables and payables in operating activities.

 

Investing Activities

 

Net cash used in investing activities was $13 thousand for the six months ended June 30, 2024 and consisted entirely of the purchase of property and equipment. Net cash used in investing activities was $0.8 million for the six months ended June 30, 2023 and consisted of entirely of purchases of property and equipment.

 

Financing Activities

 

Net cash provided by financing activities was $16.3 million for the six months ended June 30, 2024 and consisted of $18.7 million proceeds received from Convertible Notes related to PIPE Subscribers, being partially offset by payments totaling $2.4 million of deferred transaction costs. We had no financing activities for the six months ended June 30, 2023.

 

 

Cash Flow Summary — Year Ended December 31, 2023 and 2022

 

The following table summarizes our cash flows for the periods presented:

 

		Year Ended, December 31,
		2023				2022
		(in thousands)
Cash used in operating activities		$	(29,225	)		$	(55,879	)
Cash used in investing activities			(678	)			(8,087	)
Cash provided by financing activities			5,551				29,827
Exchange rate effect on cash, cash equivalents and restricted cash			12				43
Net decrease in cash and cash equivalents and restricted cash			(24,340	)			(34,096	)

 

Operating Activities

 

Net cash used in operating activities was $29.2 million for the year ended December 31, 2023, a decrease of $26.7 million compared to the year ended December 31, 2022. The decrease in net cash used in operating activities was primarily attributable to the decrease in cash operating expenses and the timing of settling receivables and payables, being partially offset by a higher gross loss.

 

Investing Activities

 

Net cash used in investing activities was $0.7 million for the year ended December 31, 2023 and consisted of the purchase of property and equipment, partially offset by proceeds from the sale of property and equipment. Net cash used in investing activities was $8.1 million for the year ended December 31, 2022 and consisted of entirely of purchase of property and equipment.

 

Financing Activities

 

Net cash provided by financing activities was $5.6 million for the year ended December 31, 2023 and consisted entirely of proceeds received from Convertible Notes related to PIPE Subscribers. Net cash provided by financing activities was $29.8 million for the year ended December 31, 2022 and consisted of $29.7 million of net proceeds from Senior Secured Notes, $2.8 million of proceeds from the issuance of Series E convertible preferred stock, and $0.2 million of proceeds from the exercise of stock options, partially offset by $2.8 million of debt repayments.

 

Off-Balance Sheet Arrangements and Contractual Obligations

 

As of June 30, 2024 and through the date of the Form 8-K, we do not have any off-balance sheet arrangements, as defined in the rules and regulations of the SEC.

 

In the ordinary course of our operations, we enter into certain contractual obligations. Such obligations include manufacturing arrangements, leases, and debt arrangements.

 

Recent Accounting Pronouncements

 

See Note 3 to audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included as Exhibit 99.1 to the Form 8-K for recently adopted accounting pronouncements and recently issued accounting pronouncements not yet adopted as of the dates of the statement of financial position included in this filing.

 

 

Critical Accounting Policies and Estimates

 

Our consolidated financial statements are prepared in accordance with accounting principles generally accepted in the United States (“GAAP”). The preparation of these consolidated financial statements requires management to make certain estimates and assumptions that affect the reported amounts of assets, liabilities, revenue, costs, and expenses, and related disclosure in the notes of the consolidated financial statements. Bolt Threads evaluates its accounting policies, estimates, and judgments on an on-going basis. Management bases its estimates and judgments on historical experience and various other factors that are believed to be reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions.

 

While the significant accounting policies are described in more detail in Note 3 in the audited annual consolidated financial statements for the years ended December 31, 2023 and 2022 in the Proxy Statement/Prospectus and unaudited interim condensed consolidated financial statements for the six months ended June 30, 2024 and 2023 included as Exhibit 99.1 to the Form 8-K, management believes that the following accounting policies are those most critical to the judgments and estimates used in the preparation of our consolidated financial statements.

 

Revenue Recognition

 

Our revenue contracts represent a single performance obligation to sell our products to customers. Sales are recorded at the time control of the product is transferred to customers, in an amount that reflects the consideration we expect to be entitled to in exchange for the goods sold. Control is the ability of customers to “direct the use of” and “obtain” the benefit from our products. In evaluating the timing of the transfer of control of products to customers, we consider several control indicators, including significant risks and rewards of products, our right to payment and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are shipped to customers.

 

Deferred Transaction Costs

 

Deferred transaction costs consist of direct legal, accounting, filing and other fees and costs directly attributable to the Company’s planned Merger. We capitalized deferred transaction costs prior to the close of the Merger and included within the consolidated balance sheet. The Company will reclassify the deferred transaction costs related to the Merger to additional paid-in capital to offset the proceeds received upon closing of the Merger.

 

Impairment of Long-lived Assets

 

We evaluate the recoverability of our long-lived assets, such as property and equipment and operating lease right-of-use assets, for impairment whenever events or circumstances indicate that the carrying amounts of such assets may not be recoverable. In determining the recoverability of the asset value, we perform an analysis at the asset group level, since this is the lowest level of identifiable cash flows, and primarily perform an assessment of historical and projected future cash flows and other relevant factors and circumstances, including changes in the economic environment and future operating plans of the business. The recoverability of assets to be held and used is measured by a comparison of the carrying amount of the asset to estimated undiscounted future cash flows expected to be generated by the asset group. If the carrying amount of an asset group exceeds its estimated future cash flows, we recognize an impairment loss for the amount by which the carrying amount of the asset group exceeds the fair value of the asset group. Projecting undiscounted future cash flows requires the use of estimates and assumptions that are largely unobservable, and classified as Level 3 inputs in the fair value hierarchy. If actual performance does not align with or exceed such projections, we may be required to recognize impairment charges in futures periods and such charges could be material.

 

Stock-Based Compensation

 

We grant restricted stock units (“RSUs”) to employees and non-employee consultants, which vest upon the satisfaction of both the service-based condition or performance milestone-based condition(s) and a liquidity event condition. The fair value of restricted stock units is determined based on our estimated fair value of common stock at the date of grant. As of June 30, 2024, we had not recorded any stock-based compensation expense for the RSUs.

 

We also grant stock options to employees and non-employees with an exercise price equal to the fair value of the shares at the date of grant. All stock option grants are accounted for using the fair value method and compensation is recognized as the underlying options vest. We use the Black-Scholes option pricing model to determine the fair value of stock option awards. The Black-Scholes model considers several variables and assumptions in estimating the fair value of the stock-based awards. These variables include the fair market value of common stock, stock-price volatility, expected term, expected dividends, risk-free interest rates, and forfeitures.

 

 

●

Fair Value of Common Stock — Given the absence of a public trading market, we considered numerous objective and subjective factors to determine the fair market value of common stock. These factors included but were not limited to (i) contemporaneous third-party valuations of common stock; (ii) the rights and preferences of preferred stock relative to common stock; (iii) the lack of marketability of common stock; (iv) developments in the business; and (v) the likelihood of achieving a liquidity event, such as an initial public offering or sale of Bolt Threads, given prevailing market conditions.

 

In valuing our common stock at various dates, the third-party valuation specialists determined the equity value of our business using a mix of the income and market approaches. The income approach focuses on the income-producing capability of the business, while the market approach measures the value of the business through an analysis of recent sales or offerings of comparable investments.

 

Application of these approaches involves the use of estimates, judgment, and assumptions that are highly complex and subjective, such as those regarding our expected future revenue, expenses, and future cash flows, discount rates, market multiples, the selection of comparable companies, and the probability of possible future events. Changes in any or all of these estimates and assumptions or the relationships between those assumptions impact our valuations as of each valuation date and may have a material impact on the valuation of our common stock. The estimates will not be necessary to determine the fair value of new awards once the underlying shares begin trading.

 

●

Expected Volatility — Expected volatility is estimated based on historical volatilities of comparable public companies operating in our industry.

 

●

Expected Term — The expected term of the options represents the period the options are expected to be outstanding and is estimated using the simplified method. We believe it is appropriate to use the simplified method in determining the expected life of options because we do not have sufficient historical exercise data to provide a reasonable basis upon which to estimate the expected term for options.

 

●

Dividend Yield — We have historically not issued dividends and do not expect to in the future.

 

●

Risk-free Interest Rate — The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant.

 

●

Forfeitures — Forfeitures are recognized as they occur.

 

We use the same inputs to estimate the fair value of awards granted to non-employees.

 

Following the Business Combination, the Post-Combination Board will determine the fair value of the Post-Combination Company Common Stock based on the closing price on the date of grant, as reported on the principal exchange on which the common stock is listed for trading.

 

Common Stock Warrants

 

We account for common stock warrants as equity if the contract requires physical settlement or net physical settlement or if we have the option of physical settlement or net physical settlement and the warrants meet the requirements to be classified as equity. Common stock warrants classified as equity are initially measured at fair value using the Black-Scholes-Merton option-pricing model using various inputs, including our estimates of expected stock price volatility, term, risk-free rate and future dividends, on the issuance date and are not subsequently remeasured.

 

We account for common stock warrants as a liability if we can be required under any circumstances to settle the warrant by transferring cash or other assets. Common stock warrants classified as liabilities are initially recorded at fair value using the Black-Scholes-Merton option-pricing model on the issuance date and remeasured at fair value each balance sheet date with the offset adjustments recorded in remeasurement of common stock warrant liability within the consolidated statements of operations and comprehensive loss.

 

 

Convertible Preferred Stock Warrants

 

We record convertible preferred stock warrants issued as freestanding warrants as liabilities in the consolidated balance sheets at their estimated fair value at the time of initial recognition based on an option pricing model. Liability-classified warrants are subject to re-measurement at each balance sheet date, and any change in fair value is recognized in the consolidated statements of operations and comprehensive loss. We will continue to remeasure the liability-classified warrants until the earlier of the exercise or expiration, the completion of a deemed liquidation event, the conversion of preferred stock into common stock, or until holders of the preferred stock can no longer trigger a deemed liquidation event. On expiration, the preferred stock warrants will automatically net exercise, unless the warrant holder provides written notice that it does not wish to exercise its warrants. Upon exercise, the related preferred stock warrant liability will be reclassified to preferred stock.

 

Convertible Notes

 

Convertible notes are regarded as hybrid instruments, consisting of a liability component and an equity component. We determined that the convertible notes are eligible for the fair value option election in connection with the convertible notes under the Bridge NPA and the Ginkgo NPA Amendment as each instrument met the definition of a “recognized financial liability” which is an acceptable financial instrument eligible for the fair value option under ASC 825-10-15-4 and do not meet the definition of any of the financial instruments found within ASC 825-10-15-5 that are not eligible for the fair value option. At the date of issuance, the fair value for each instrument is derived from the instrument’s implied discount rate at inception. Changes in fair value of the convertible notes are measured through the accompanying consolidated statement of operations and comprehensive loss until settlement.

 

Share-based Termination Liability

 

In September 2023, we negotiated a contingent lease termination agreement with our landlord for the Berkeley facility lease. If the Company issues 600,000 shares of the new public company to its landlord after the closing of the merger transaction with Golden Arrow Merger Corp. (“GAMC”), the Berkeley lease facility will be considered terminated as of September 10, 2023 pursuant to the lease termination agreement. Further, in October 2023, we entered into a settlement agreement with one of our suppliers. If the Company pays the supplier $1.0 million and issues 150,000 shares of the new public company to the supplier after the closing of the merger transaction with GAMC, the Supply Agreement will be considered terminated as of July 13, 2023 pursuant to the settlement agreement.

 

We recorded the contingent issuance of shares as a liability in the consolidated balance sheets at its estimated fair value at the time of initial recognition based on an option pricing model, with changes in fair value recorded through earnings, as the new public company shares are not considered to be indexed to the Company’s own shares at the time the termination occurred.

 

Emerging Growth Company and Smaller Reporting Company Status

 

We are an emerging growth company under the JOBS Act. The JOBS Act provides that an emerging growth company can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We expect that we will be an emerging growth company after the Business Combination and will continue not to opt out of the extended transition period.

 

Subject to certain conditions set forth in the JOBS Act, if, as an “emerging growth company,” we choose to rely on such exemptions we may not be required to, among other things, (i) provide an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act, (ii) provide all of the compensation disclosure that may be required of non-emerging growth public companies under the Dodd-Frank Wall Street Reform and Consumer Protection Act, (iii) comply with any requirement that may be adopted by the PCAOB regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the consolidated financial statements (auditor discussion and analysis), or (iv) disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the CEO’s compensation to median employee compensation. These exemptions will apply for a period up to December 31, 2026, the last day of our fiscal year following the fifth anniversary of GAMC’s initial public offering, or such earlier time as when (i) our annual gross revenue exceeds $1.235 billion, (ii) we issue more than $1.0 billion of non-convertible debt in any three-year period or (iii) we become a large accelerated filer as defined in Rule 12b-2 under the Exchange Act.

 

Additionally, we are a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited consolidated financial statements.

 

 

v3.24.2.u1

Cover	Aug. 13, 2024
Entity Addresses [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 13, 2024
Entity File Number	001-40223
Entity Registrant Name	Bolt Projects Holdings, Inc.
Entity Central Index Key	0001841125
Entity Tax Identification Number	86-1256660
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	2261 Market Street
Entity Address, Address Line Two	Suite 5447
Entity Address, City or Town	San Francisco
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	94114
City Area Code	415
Local Phone Number	325-5912
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false
Entity Information, Former Legal or Registered Name	Golden Arrow Merger Corp.
Common stock, par value $0.0001 per share
Entity Addresses [Line Items]
Title of 12(b) Security	Common stock, par value $0.0001 per share
Trading Symbol	BSLK
Security Exchange Name	NASDAQ
Warrants, each whole warrant exercisable for one share of Common stock at an exercise price of $11.50
Entity Addresses [Line Items]
Title of 12(b) Security	Warrants, each whole warrant exercisable for one share of Common stock at an exercise price of $11.50
Trading Symbol	BSLKW
Security Exchange Name	NASDAQ
Former Address [Member]
Entity Addresses [Line Items]
Entity Address, Address Line One	10 E. 53rd Street
Entity Address, Address Line Two	13th Floor
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10022

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