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):
February 6, 2025
Alumis Inc.
(Exact name of Registrant as Specified in Its
Charter)
| Delaware |
|
001-42143 |
|
86-1771129 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
280 East Grand Avenue
South San Francisco, California 94080
(Address of Principal Executive Offices and
Zip Code)
(Registrant’s Telephone Number, Including
Area Code): (650) 231-6625
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instructions A.2. below):
| x | 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, $0.0001 par value per share |
|
ALMS |
|
The Nasdaq Global Select Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On February 6, 2025, Alumis Inc., a Delaware corporation (“Alumis”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with ACELYRIN, Inc., a Delaware corporation
(“ACELYRIN”), and Arrow Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of
Alumis (“Merger Sub”). Pursuant to the Merger Agreement, Merger Sub will be merged with and into ACELYRIN and
ACELYRIN will continue as the surviving corporation and direct wholly owned subsidiary of Alumis (the “Merger”).
Approval & Recommendation
Based on the unanimous recommendation of a special committee (the “Alumis
Special Committee”) of the board of directors of Alumis (the “Alumis Board”), consisting solely
of independent and disinterested directors of Alumis, to which the Alumis Board had delegated exclusive authority to consider, negotiate
and evaluate the Merger Agreement and the transactions contemplated thereby, the Alumis Board (i) determined that the Merger Agreement
and the transactions contemplated thereby, including the Merger, are advisable, fair to and in the best interests of Alumis and its stockholders,
(ii) approved the Merger and the transactions contemplated thereby, including the issuance of voting common stock of Alumis, par
value $0.0001 per share (“Alumis Common Stock”) pursuant to the Merger Agreement (the “Alumis Share
Issuance”), and (iii) resolved to submit and recommend the approval of the Alumis Share Issuance to Alumis’s
stockholders.
Based on the unanimous recommendation of a special committee (the “ACELYRIN
Special Committee”) of the board of directors of ACELYRIN (the “ACELYRIN Board”), consisting solely
of independent and disinterested directors of ACELYRIN, to which the ACELYRIN Board had delegated exclusive authority to consider, negotiate
and evaluate the Merger Agreement and the transactions contemplated thereby, the ACELYRIN Board (i) determined that the Merger Agreement
and the transactions contemplated thereby, including the Merger, are advisable, fair to and in the best interests of ACELYRIN and its
stockholders, (ii) approved the execution, delivery and performance by ACELYRIN of the Merger Agreement and the consummation by ACELYRIN
of the transactions contemplated thereby, including the Merger and (iii) declared advisable and resolved to recommend that ACELYRIN’s
stockholders approve and adopt the Merger Agreement.
Merger Consideration; Treatment of Equity Awards
In connection with the Merger, all of the issued and outstanding shares
of common stock of ACELYRIN, par value $0.00001 per share (the “Shares”), will be cancelled and converted into
the right to receive 0.4274 shares of Alumis Common Stock, without interest (the number of shares of Alumis Common Stock in exchange for
each Share, the “Exchange Ratio”) and, if applicable, cash in lieu of fractional shares, without interest, subject
to any applicable withholding.
Each of ACELYRIN’s stock options (the
“Options”) that is outstanding and unexercised as of immediately prior to the effectiveness of the Merger (the
“Effective Time”) and that has a per share exercise price of $18.00 or less will be converted into an option
award to purchase the number of shares of Alumis Common Stock (each, a “Converted Option”) equal to (i) the
number of Shares subject to the Option immediately prior to the Effective Time multiplied by (ii) the Exchange Ratio. Each
Converted Option will have an exercise price per share of Alumis Common Stock equal to (x) the per share exercise price for Shares
subject to the corresponding Option immediately prior to the Effective Time divided by (y) the Exchange Ratio. Each Option
that is outstanding and unexercised immediately prior to the Effective Time and that has a per share exercise price of more than $18.00
will be cancelled without the payment of any consideration.
Each of ACELYRIN’s restricted stock
unit awards (the “RSUs”) that is outstanding and unvested as of immediately prior to the Effective Time will
be converted into an RSU with respect to a number of shares of Alumis Common Stock equal to (i) the total number of Shares subject
to the RSU immediately prior to the Effective Time multiplied by (ii) the Exchange Ratio.
Each of ACELYRIN’s performance stock
unit awards (the “PSUs”) that is outstanding and unvested as of immediately prior to the Effective Time will
have any performance-based conditions deemed to be met at 100% of the target level of performance and be assumed and converted into an
RSU with respect to a number of shares of Alumis Common Stock equal to (i) the target number of Shares subject to the PSU immediately
prior to the Effective Time multiplied by (ii) the Exchange Ratio.
Closing Conditions
Consummation of the Merger is subject to certain
closing conditions, including the absence of any law or judgment that restrains, enjoins or otherwise prohibits consummation of the Merger,
the effectiveness of a registration statement on Form S-4 (the “registration statement”) to be filed with
the Securities and Exchange Commission (the “SEC”) by Alumis, adoption of the Merger Agreement by the holders
of a majority of the outstanding Shares at ACELYRIN’s stockholders’ meeting, and approval of the Alumis Share Issuance by
the holders of a majority of votes of Alumis’s Common Stock cast at Alumis’s stockholders’ meeting.
Representations, Warranties and Covenants
The Merger Agreement includes representations,
warranties and covenants of the parties customary for a transaction of this nature, including covenants regarding the conduct of their
respective businesses. ACELYRIN and Alumis are not permitted to, among other things, solicit, initiate, knowingly induce, knowingly encourage,
or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead
to, an alternative transaction proposal or to engage in discussions or negotiations with third parties regarding any alternative transaction
proposal. Notwithstanding this limitation, prior to a party’s stockholders’ approving the transaction, such party may under
certain circumstances provide information to and engage or participate in discussions or negotiations with third parties with respect
to an unsolicited, bona fide written alternative transaction proposal that its board of directors has determined in good faith
constitutes or could reasonably be expected to result in a superior proposal and failure to take such action would reasonably be expected
to be inconsistent with the directors’ fiduciary duties under applicable law. Each party’s board of directors may change its
recommendation to its stockholders (subject to the other party’s right to match and right to terminate the Merger Agreement following
such change in recommendation) in response to a superior proposal or an intervening event if the board of directors determines in good
faith that the failure to take such action would be inconstant with the directors’ fiduciary duties under applicable law. Each party
may also terminate the Merger Agreement in order to enter into a transaction constituting a superior proposal.
Governance
The Merger Agreement provides that the parties
will take all actions reasonably necessary such that, from and after the Effective Time, the Alumis Board is increased to nine individuals
and that two directors designated by ACELYRIN are elected or appointed to the Alumis Board.
Termination and Termination Fees
The Merger Agreement contains certain termination
rights for both Alumis and ACELYRIN, including the right of either party to terminate the Merger Agreement if the transactions have not
been consummated prior to July 7, 2025. The Merger Agreement further provides that, in connection with the termination of the Merger
Agreement by ACELYRIN under certain circumstances, including termination by ACELYRIN to accept and enter into a definitive agreement with
respect to a superior proposal, ACELYRIN must pay Alumis a termination fee of $10 million. In connection with the termination of the Merger
Agreement by Alumis under certain circumstances, including termination by Alumis to accept and enter into a definitive agreement with
respect to a superior proposal, Alumis must pay ACELYRIN a termination fee of $10 million.
Additional Information
The foregoing description of the Merger Agreement
and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the Merger
Agreement, which is filed as Exhibit 2.1 hereto and which is incorporated herein by reference.
The Merger Agreement has been filed to provide
information to investors regarding its terms. The Merger Agreement is not intended to provide any other factual information about Alumis
or ACELYRIN, their respective businesses, the actual conduct of their respective businesses during the period prior to the consummation
of the Merger or the other transactions contemplated therein. The Merger Agreement contains representations and warranties that are the
product of negotiations among the parties thereto which were made only for purposes of such agreement and as of specified dates. The assertions
embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties and
are also qualified in important part by confidential disclosure letters delivered by and to each of Alumis and ACELYRIN in connection
with the Merger Agreement. The representations and warranties may be subject to standards of materiality applicable to the contracting
parties that differ from those applicable to stockholders or investors. Information concerning the subject matter of the representations
and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Alumis’
or ACELYRIN’s public disclosures.
Item 2.02 Results of Operations and Financial Condition.
On February 6, 2025, Alumis disclosed in a press release regarding
the Merger Agreement, among other things, that the preliminary, unaudited amount of Alumis’ cash, cash equivalents and marketable
securities position as of December 31, 2024 is approximately $289 million. This amount is preliminary, unaudited and may change,
was prepared by management and is based on the most current information available to management. Further, this amount is subject to completion
by management of the financial statements as of and for the year ended December 31, 2024, including completion of the review procedures,
final adjustments and other developments that may arise between now and the time the financial results for this period are finalized,
and completion of the audit of such financial statements. Alumis’ independent registered public accounting firm has not audited,
reviewed or performed any procedures with respect to this preliminary result and, accordingly, does not express an opinion or any other
form of assurance about it. The information presented herein should not be considered a substitute for the financial information Alumis
files with the SEC in its Annual Report on Form 10-K for the year ended December 31, 2024. Alumis has no intention or obligation
to update the preliminary estimate of its cash, cash equivalents and marketable securities set forth above.
The information contained in this Item 2.02, including Exhibit 99.1,
is being furnished to the SEC and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act
of 1934, as amended, or incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly
set forth by specific reference in such filing.
Item 7.01. Regulation FD Disclosure.
A joint press release issued by Alumis and ACELYRIN announcing the
Merger Agreement was issued on February 6, 2025 and is attached as Exhibit 99.1 to this Current Report on Form 8-K.
On February 6, 2025, Alumis and ACELYRIN presented a slide presentation
to investors regarding the Merger. A copy of the slide presentation is attached as Exhibit 99.2 to this Current Report on Form 8-K.
The information contained in this Item 7.01, including Exhibit 99.1
and Exhibit 99.2, is being furnished to the SEC and shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended, or incorporated by reference in any filing under the Securities Act of 1933, as amended,
except as shall be expressly set forth by specific reference in such filing.
Item 8.01. Other Events.
In connection with the execution of the Merger Agreement, Alumis entered
into Voting and Support Agreements (the “Alumis Voting Agreements”) with certain of ACELYRIN’s stockholders,
including certain entities affiliated with Westlake Village BioPartners, certain entities affiliated with AyurMaya Capital Management,
certain entities affiliated with Access Industries, Beth Seidenberg, Dan Becker and Mina Kim (collectively, the “ACELYRIN
Stockholders”). Pursuant to the Alumis Voting Agreements, the ACELYRIN Stockholders have agreed, among other things, to
(i) vote or cause to be voted all of their Shares in favor of (A) the adoption of the Merger Agreement and approval of the transactions
contemplated thereby, (B) any other proposals presented by ACELYRIN to its stockholders to effect or facilitate the transactions
contemplated by the Merger Agreement and (C) any proposal to adjourn or postpone any meeting of the holders of Shares at which the
matters described in clause (A) are submitted for the consideration and vote of the holders of Shares to a later date if there are
not sufficient votes for approval of such matters on the date on which the meeting is held; and (ii) against (A) any ACELYRIN
acquisition proposal or any of the transactions contemplated thereby, (B) any action, proposal, transaction or agreement which could
reasonably be expected to result in a breach of any covenant, representation or warranty, or any other obligation or agreement of ACELYRIN
under the Merger Agreement or of such ACELYRIN Stockholder under its Alumis Voting Agreement and (C) any action, proposal, transaction,
or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect, or inhibit the timely consummation
of the Transactions.
The Shares owned by the ACELYRIN Stockholders
represented approximately 24% of the outstanding Shares as of January 31, 2025.
In connection with the execution of the Merger
Agreement, ACELYRIN entered into Voting and Support Agreements (the “ACELYRIN Voting Agreements”) with certain
of Alumis’ stockholders, including certain entities affiliated with Foresite Capital management, certain entities affiliated with
AyurMaya Capital Management, certain entities affiliated with Samsara BioCapital and Martin Babler (collectively, the “Alumis
Stockholders”). Pursuant to the ACELYRIN Voting Agreement, the Alumis Stockholders have agreed, among other things, to (i) vote
or cause to be voted all of their shares of Alumis Common Stock in favor of (A) the Alumis Share Issuance, (B) any other proposals
presented by Alumis to its stockholders in connection with the transactions contemplated by the Merger Agreement, and (C) any proposal
to adjourn or postpone any meeting of the holders of Alumis Common Stock at which the matters described in clause (A) are submitted
for the consideration and vote of the holders of Alumis Common Stock to a later date if there are not sufficient votes for approval of
such matters on the date on which the meeting is held or to constitute a quorum; and (ii) against (A) any Alumis acquisition
proposal or any of the transactions contemplated thereby, (B) any action, proposal, transaction or agreement which could reasonably
be expected to result in a breach of any covenant, representation or warranty, or any other obligation or agreement of ACELYRIN under
the Merger Agreement or of such Alumis Stockholder under its ACELYRIN Voting Agreement and (C) any action, proposal, transaction,
or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect, or inhibit the timely consummation
of the Transactions.
The shares of Alumis Common Stock owned by
the Alumis Stockholders represented approximately 62% of the outstanding Alumis Common Stock as of January 31, 2025.
The foregoing descriptions of the ACELYRIN
Voting Agreements and the Alumis Voting Agreements do not purport to be complete and are qualified in their entirety by reference to the
forms of the ACELYRIN Voting Agreements and the Alumis Voting Agreements, respectively, which are filed as Exhibit 10.1 and Exhibit 10.2,
respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Forward-Looking Statements
This communication contains forward-looking statements within the
meaning of federal securities laws, including the “safe harbor” provisions of the Private Securities Litigation Reform
Act of 1995. Such statements are based upon current plans, estimates and expectations of management of Alumis and ACELYRIN in light
of historical results and trends, current conditions and potential future developments, and are subject to various risks and
uncertainties that could cause actual results to differ materially from such statements. The inclusion of forward-looking statements
should not be regarded as a representation that such plans, estimates and expectations will be achieved. Words such as
“anticipate,” “expect,” “project,” “intend,” “believe,”
“may,” “will,” “should,” “plan,” “could,” “continue,”
“target,” “contemplate,” “estimate,” “forecast,” “guidance,”
“predict,” “possible,” “potential,” “pursue,” “likely,” and words and
terms of similar substance used in connection with any discussion of future plans, actions or events identify forward-looking
statements. All statements, other than statements of historical facts, including express or implied statements regarding the
proposed Merger; the conversion of equity interests contemplated by the Merger Agreement; the issuance of Alumis Common Stock
contemplated by the Merger Agreement; the expected filing by Alumis with the SEC of the registration statement and the joint proxy
statement/prospectus of Alumis and ACELYRIN to be included therein (the “joint proxy
statement/prospectus”); the expected timing of the closing of the proposed Merger; the ability of the parties to
complete the proposed Merger considering the various closing conditions; the expected benefits of the proposed Merger; the
competitive ability and position of the combined company; the clinical pipeline of the combined company; and any assumptions
underlying any of the foregoing, are forward-looking statements.
Risks and uncertainties include, among other things, (i) the risk
that the proposed Merger may not be completed in a timely basis or at all, which may adversely affect Alumis’ and ACELYRIN’s
businesses and the price of their respective securities; (ii) the potential failure to receive, on a timely basis or otherwise, the
required approvals of the proposed Merger, including stockholder approvals by both Alumis’ stockholders and ACELYRIN’s stockholders,
and the potential failure to satisfy the other conditions to the consummation of the transaction; (iii) the effect of the announcement,
pendency or completion of the proposed Merger on each of Alumis’ or ACELYRIN’s ability to attract, motivate, retain and hire
key personnel and maintain relationships with partners, suppliers and others with whom Alumis or ACELYRIN does business, or on Alumis’
or ACELYRIN’s operating results and business generally; (iv) that the proposed Merger may divert management’s attention
from each of Alumis’ and ACELYRIN’s ongoing business operations; (v) the risk of any legal proceedings related to the
proposed Merger or otherwise, or the impact of the proposed Merger thereupon, including resulting expense or delay; (vi) that Alumis
or ACELYRIN may be adversely affected by other economic, business and/or competitive factors; (vii) the occurrence of any event,
change or other circumstance that could give rise to the termination of the Merger Agreement, including in circumstances which would require
Alumis or ACELYRIN to pay a termination fee; (viii) the risk that restrictions during the pendency of the proposed Merger may impact
Alumis’ or ACELYRIN’s ability to pursue certain business opportunities or strategic transactions; (ix) the risk that
the anticipated benefits and synergies of the proposed Merger may not be fully realized or may take longer to realize than expected; (x) the
impact of legislative, regulatory, economic, competitive and technological changes; (xi) risks relating to the value of Alumis securities
to be issued in the proposed Merger; (xii) the risk that integration of the proposed Merger post-closing may not occur as anticipated
or the combined company may not be able to achieve the growth prospects expected from the transaction; (xiii) the effect of the announcement,
pendency or completion of the proposed Merger on the market price of the common stock of each of Alumis and ACELYRIN; (xiv) the implementation
of each of Alumis’ and ACELYRIN’s business model and strategic plans for product candidates and pipeline, and challenges
inherent in developing, commercializing, manufacturing, launching, marketing and selling potential existing and new products and product
candidates; (xv) the scope, progress, results and costs of developing Alumis’ and ACELYRIN’s product candidates and
any future product candidates, including conducting preclinical studies and clinical trials, and otherwise related to the research and
development of Alumis’ and ACELYRIN’s pipeline; (xvi) the timing and costs involved in obtaining and maintaining regulatory
approval for Alumis’ and ACELYRIN’s current or future product candidates, and any related restrictions, limitations and/or
warnings in the label of any approved product; (xvii) the market for, adoption (including rate and degree of market acceptance) and
pricing and reimbursement of Alumis’ and ACELYRIN’s product candidates, if approved, and their respective abilities to compete
with therapies and procedures that are rapidly growing and evolving; (xviii) uncertainties in contractual relationships, including
collaborations, partnerships, licensing or other arrangements and the performance of third party suppliers and manufacturers; (xix) the
ability of each of Alumis and ACELYRIN to establish and maintain intellectual property protection for products or avoid or defend claims
of infringement; (xx) Alumis’ ability to successfully integrate ACELYRIN’s operations and personnel; and (xxi) potential
delays in initiating, enrolling or completing preclinical studies and clinical trials.
These risks, as well as other risks related to the proposed Merger,
will be described in the registration statement and the joint proxy statement/prospectus that will be filed with the SEC in connection
with the proposed Merger. While the list of factors presented here is, and the list of factors to be presented in the registration statement
are considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties.
For additional information about other factors that could cause actual results to differ materially from those described in the forward-looking
statements, please refer to Alumis’ and ACELYRIN’s respective periodic reports and other filings with the SEC, including
the risk factors identified in Alumis’ and ACELYRIN’s most recent Quarterly Reports on Form 10-Q and/or Annual Reports
on Form 10-K. The risks and uncertainties described above and in the SEC filings cited above are not exclusive and further information
concerning Alumis and ACELYRIN and their respective businesses, including factors that potentially could materially affect their respective
businesses, financial conditions or operating results, may emerge from time to time. Readers are urged to consider these factors carefully
in evaluating these forward-looking statements, and not to place undue reliance on any forward-looking statements, which speak only as
of the date hereof. Readers should also carefully review the risk factors described in other documents Alumis and ACELYRIN file from time
to time with the SEC.
The forward-looking statements included in this communication are made
only as of the date hereof. Alumis assumes no obligation and does not intend to update these forward-looking statements, even if new information
becomes available in the future, except as required by law.
Additional Information and Where to Find It
In connection with the proposed merger, Alumis intends to file with
the SEC a registration statement on Form S-4, which will include the joint proxy statement/prospectus. After the registration statement
has been declared effective by the SEC, the joint proxy statement/prospectus will be delivered to stockholders of Alumis and ACELYRIN.
BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SECURITY HOLDERS OF ALUMIS AND ACELYRIN ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS
(INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE MERGER THAT WILL BE FILED WITH THE SEC WHEN THEY
BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Investors and security holders will be able
to obtain copies of the joint proxy statement/prospectus (when available) and other documents filed by Alumis and ACELYRIN with the SEC,
without charge, through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by Alumis will be
available free of charge under the SEC Filings heading of the Investor Relations section of Alumis’ website at https://www.investors.alumis.com/.
Copies of the documents filed with the SEC by ACELYRIN will be available free of charge under the Financials & Filings heading
of the Investor Relations section of ACELYRIN’s website https://www.investors.acelyrin.com/.
Participants in the Solicitation
Alumis and ACELYRIN and their respective directors and executive officers
may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information about Alumis’
directors and executive officers is set forth in Alumis’ registration statement on Form S-1/A (File No. 333-280068),
which was filed with the SEC on June 24, 2024. Information about ACELYRIN’s directors and executive officers is set forth in
the proxy statement for ACELYRIN’s 2024 Annual Meeting of Stockholders, which was filed with the SEC on April 22, 2024, and
ACELYRIN’s Current Reports on Form 8-K filed with the SEC on May 28, 2024, August 13, 2024 and December 10,
2024. Stockholders may obtain additional information regarding the interests of such participants by reading the registration statement
and the joint proxy statement/prospectus and other relevant materials to be filed with the SEC regarding the proposed merger when they
become available. Investors should read the joint proxy statement/prospectus carefully when it becomes available before making any voting
or investment decisions.
No Offer or Solicitation
This communication shall not constitute an offer to sell or the solicitation
of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the
Securities Act of 1933, as amended.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| 104 |
Cover Page Interactive Data File (embedded within
the Inline XBRL document) |
* Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K.
Alumis agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
|
Alumis Inc. |
| |
|
|
| Dated: February 6, 2025 |
|
By: |
/s/ Martin Babler |
| |
|
|
|
| |
|
|
President and Chief Executive Officer |
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
ALUMIS INC.,
ARROW MERGER SUB, INC.
and
ACELYRIN, INC.
Dated as of February 6, 2025
TABLE
OF CONTENTS
Page
| ARTICLE I THE MERGER; CLOSING; SURVIVING CORPORATION |
2 |
| |
|
| 1.1 |
The Merger |
2 |
| 1.2 |
Closing |
3 |
| 1.3 |
Effective Time |
3 |
| 1.4 |
Certificate of Incorporation |
3 |
| 1.5 |
Bylaws |
3 |
| 1.6 |
Directors of the Surviving Corporation |
3 |
| 1.7 |
Officers of the Surviving Corporation |
3 |
| |
|
|
| ARTICLE II EFFECT OF THE MERGER ON SECURITIES; EXCHANGE |
3 |
| |
|
| 2.1 |
Effect on Capital Stock |
3 |
| 2.2 |
Exchange of Certificates and Uncertificated Shares |
4 |
| 2.3 |
Adjustments to Prevent Dilution |
6 |
| 2.4 |
Treatment of Equity Awards; Company ESPP |
7 |
| 2.5 |
No Dissenter’s Rights |
9 |
| 2.6 |
Withholding Rights |
9 |
| |
|
|
| ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
9 |
| |
|
| 3.1 |
Organization, Good Standing and Qualification |
9 |
| 3.2 |
Company Subsidiaries |
10 |
| 3.3 |
Capital Structure |
10 |
| 3.4 |
Corporate Authority and Approval |
12 |
| 3.5 |
No Conflicts; Consents |
12 |
| 3.6 |
Company SEC Documents; Financial Statements |
13 |
| 3.7 |
Internal Controls and Procedures |
14 |
| 3.8 |
Absence of Certain Changes |
14 |
| 3.9 |
Litigation and Liabilities |
15 |
| 3.10 |
Compliance with Laws |
15 |
| 3.11 |
Contracts |
16 |
| 3.12 |
Benefits Matters; ERISA Compliance |
18 |
| 3.13 |
Labor Matters |
20 |
| 3.14 |
Environmental Matters |
21 |
| 3.15 |
Taxes |
21 |
| 3.16 |
Intellectual Property |
23 |
| 3.17 |
Data Privacy and Information Security |
25 |
| 3.18 |
Regulatory Matters |
25 |
| 3.19 |
Certain Business Practices |
27 |
| 3.20 |
Insurance; Properties |
27 |
| 3.21 |
Joint Proxy Statement/Prospectus |
27 |
| 3.22 |
Brokers and Finders |
28 |
| 3.23 |
Opinion of Financial Advisor |
28 |
| |
|
|
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
28 |
| |
|
| 4.1 |
Organization, Good Standing and Qualification |
28 |
| 4.2 |
Parent Subsidiaries. |
29 |
| 4.3 |
Capital Structure |
29 |
| 4.4 |
Corporate Authority and Approval |
31 |
| 4.5 |
No Conflicts; Consents |
31 |
| 4.6 |
Parent SEC Documents; Financial Statements |
32 |
| 4.7 |
Internal Controls and Procedures |
33 |
| 4.8 |
Absence of Certain Changes |
33 |
| 4.9 |
Litigation and Liabilities |
34 |
| 4.10 |
Compliance with Laws |
34 |
| 4.11 |
Contracts |
35 |
| 4.12 |
Benefits Matters; ERISA Compliance |
37 |
| 4.13 |
Labor Matters |
37 |
| 4.14 |
Taxes |
38 |
| 4.15 |
Intellectual Property |
40 |
| 4.16 |
Data Privacy and Information Security |
41 |
| 4.17 |
Regulatory Matters |
42 |
| 4.18 |
Certain Business Practices |
43 |
| 4.19 |
Valid Issuance |
43 |
| 4.20 |
Insurance; Properties |
43 |
| 4.21 |
Ownership and Operations of Merger Sub |
44 |
| 4.22 |
Form S-4 and Joint Proxy Statement/Prospectus |
44 |
| 4.23 |
Brokers and Finders |
44 |
| 4.24 |
Opinion of Financial Advisor |
44 |
| |
|
|
| ARTICLE V COVENANTS |
45 |
| |
|
| 5.1 |
Interim Operations |
45 |
| 5.2 |
Company Acquisition Proposals; Company Change in Recommendation |
50 |
| 5.3 |
Parent Acquisition Proposals; Parent Change in Recommendation |
55 |
| 5.4 |
Information Supplied |
60 |
| 5.5 |
Company and Parent Stockholder Meetings |
62 |
| 5.6 |
Regulatory Cooperation |
63 |
| 5.7 |
Access |
63 |
| 5.8 |
Stock Exchange Listing, De-listing and De-registration |
64 |
| 5.9 |
Publicity |
64 |
| 5.10 |
Expenses |
64 |
| 5.11 |
Indemnification; Directors’ and Officers’ Insurance |
65 |
| 5.12 |
Takeover Statutes |
66 |
| 5.13 |
Section 16(b) |
66 |
| 5.14 |
Stockholder Litigation |
66 |
| 5.15 |
Certain Tax Matters |
67 |
| 5.16 |
Post-Closing Board of Directors |
67 |
| 5.17 |
Termination of Company Plans |
68 |
| 5.18 |
Employee Matters |
68 |
| |
|
|
| ARTICLE VI CONDITIONS |
69 |
| |
|
| 6.1 |
Conditions to Each Party’s Obligation to Effect the Merger |
69 |
| 6.2 |
Conditions to Obligations of Parent and Merger Sub |
70 |
| 6.3 |
Conditions to Obligation of the Company |
71 |
| 6.4 |
Frustration of Conditions |
71 |
| |
|
|
| ARTICLE VII TERMINATION |
71 |
| |
|
| 7.1 |
Termination by Mutual Consent |
71 |
| 7.2 |
Termination by Either Parent or the Company |
71 |
| 7.3 |
Termination by the Company |
72 |
| 7.4 |
Termination by Parent |
73 |
| 7.5 |
Company Termination Fee |
74 |
| 7.6 |
Parent Termination Fee |
74 |
| 7.7 |
Effect of Termination and Abandonment |
74 |
| 7.8 |
Remedies |
75 |
| |
|
|
| ARTICLE VIII MISCELLANEOUS |
75 |
| |
|
| 8.1 |
Survival |
75 |
| 8.2 |
Amendment |
76 |
| 8.3 |
Waiver |
76 |
| 8.4 |
Assignment |
76 |
| 8.5 |
Counterparts; Effectiveness; Electronic Signature |
76 |
| 8.6 |
Governing Law; Jurisdiction and Venue; WAIVER OF JURY TRIAL |
76 |
| 8.7 |
Specific Performance |
77 |
| 8.8 |
Notices |
77 |
| 8.9 |
Entire Agreement |
78 |
| 8.10 |
No Third Party Beneficiaries |
78 |
| 8.11 |
Obligations of Parent and of the Company |
78 |
| 8.12 |
Severability |
79 |
| 8.13 |
No Other Representations and Warranties |
79 |
| 8.14 |
Interpretation; Construction |
79 |
| 8.15 |
Certain Definitions |
81 |
| Exhibit A |
Certificate of Incorporation of the Surviving Corporation |
| Exhibit B |
Tax Representation Letters |
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of February 6, 2025, by and among Alumis
Inc., a Delaware corporation (“Parent”), Arrow Merger Sub, Inc., a Delaware corporation and a direct wholly owned
Subsidiary of Parent, (“Merger Sub”) and ACELYRIN, Inc., a Delaware corporation (the “Company”).
Parent, Merger Sub and the Company are each sometimes referred to herein as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS,
the Parties wish to effect a business combination through the merger of Merger Sub with and into the Company, with the Company being the
surviving corporation (the “Merger”);
WHEREAS,
in connection with the Merger, each outstanding share of common stock, par value $0.00001 per share, of the Company (“Shares”)
issued and outstanding immediately prior to the Effective Time shall be cancelled and each holder of Shares shall have the right to receive
the Merger Consideration upon the terms and subject to the conditions set forth in this Agreement and in accordance with the General Corporation
Law of the State of Delaware (the “DGCL”) (other than Shares to be cancelled in accordance with Section 2.1(c));
WHEREAS,
a transaction committee of the Company Board (as defined below) (the “Company Transaction Committee”) has, by resolutions
duly adopted, unanimously: (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are
advisable, fair to and in the best interests of the Company and its stockholders, (ii) recommended to the Company Board that it approve
the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated
hereby, including the Merger, and (iii) recommended to the Company Board that it recommend that the Company’s stockholders
approve and adopt this Agreement;
WHEREAS,
the board of directors of the Company (the “Company Board”) has, by resolutions duly adopted and acting upon the recommendation
of the Company Transaction Committee (i) determined that this Agreement and the transactions contemplated hereby, including the Merger,
are advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby, including the Merger, and
(iii) declared advisable and resolved to recommend that the Company’s stockholders approve and adopt this Agreement (the “Company
Board Recommendation”) pursuant to the DGCL;
WHEREAS,
a special committee of the Parent Board (as defined below) (the “Parent Special Committee”) has, by resolutions duly
adopted, unanimously: (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable,
fair to and in the best interests of Parent and its stockholders, (ii) recommended to the Parent Board that it approve the Merger
and the transactions contemplated hereby, including the Parent Share Issuance, and (iii) recommended to the Parent Board that it
submit, and recommend the approval of the Parent Share Issuance, to Parent’s stockholders;
WHEREAS,
the board of directors of Parent (the “Parent Board”) has, by resolutions duly adopted and acting upon the recommendation
of the Parent Special Committee: (i) determined that this Agreement and the transactions contemplated hereby, including the Merger,
are advisable, fair to and in the best interests of Parent and its stockholders, (ii) approved the Merger and the transactions contemplated
hereby, including the Parent Share Issuance, and (iii) resolved to submit, and recommend the approval of the Parent Share Issuance,
to Parent’s stockholders (the “Parent Board Recommendation”);
WHEREAS,
the board of directors of Merger Sub, by resolutions duly adopted, has unanimously approved the Merger upon the terms and subject to the
conditions set forth in this Agreement, has approved and declared advisable this Agreement and has resolved to recommend to its sole stockholder
the adoption of this Agreement;
WHEREAS,
Parent, in its capacity as sole stockholder of Merger Sub, has adopted this Agreement;
WHEREAS,
concurrently with the entry into this Agreement and as an inducement to Parent entering into this Agreement, certain stockholders of the
Company have delivered to Parent duly executed voting and support agreements (“Company Voting Agreements”), agreeing
to certain matters with respect to the Merger and the other transactions contemplated by this Agreement;
WHEREAS,
concurrently with the entry into this Agreement and as an inducement to the Company entering into this Agreement, certain stockholders
of Parent have delivered to the Company duly executed voting and support agreements (“Parent Voting Agreements”), agreeing
to certain matters with respect to the Merger and the other transactions contemplated by this Agreement;
WHEREAS,
each of the Parties intends that, for United States federal income tax purposes, the Merger will qualify as a “reorganization”
within the meaning of Section 368(a) of the Code, to which each of Parent, the Company and Merger Sub are to be parties under
Section 368(b) of the Code (the “Intended Tax Treatment”), and this Agreement is intended to constitute a
“plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g); and
WHEREAS,
the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this
Agreement.
NOW,
THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein,
the Parties hereby agree as follows:
Article I
THE MERGER; CLOSING; SURVIVING CORPORATION
1.1 The
Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged
with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease. The Company shall be the surviving
company in the Merger (sometimes hereinafter referred to as the “Surviving Corporation”), and the separate corporate
existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except
as set forth in Article II. The Merger shall have the effects specified in the DGCL.
1.2 Closing.
The closing of the Merger (the “Closing”) shall take place via electronic exchange of deliverables, on the third (3rd) Business
Day following the day on which the last of the conditions set forth in Article VI shall have been satisfied (or waived by
the Party or Parties entitled to the benefit thereof at the Closing) (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of those conditions) or at such other place and time or on such other date as
the Company and Parent may otherwise agree in writing (the date on which the Closing actually occurs, the “Closing Date”).
1.3 Effective
Time. Upon the Closing, the Company and Parent will cause a Certificate of Merger with respect to the Merger (the “Certificate
of Merger”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware as provided in the DGCL.
The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Secretary of State of the State
of Delaware, or at such other time as may be agreed upon by the Parties in writing and set forth in the Certificate of Merger in accordance
with the DGCL (the “Effective Time”).
1.4 Certificate
of Incorporation. At the Effective Time, the certificate of incorporation of the Company shall be amended and restated in its entirety
as set forth on Exhibit A and as so amended and restated shall be the Certificate of Incorporation of the Surviving Corporation
(the “Certificate of Incorporation”), until thereafter amended as provided therein or by applicable Law.
1.5 Bylaws.
The parties shall take all action necessary to cause the bylaws of the Company to be amended and restated to, at the Effective Time, conform
to the bylaws of Merger Sub (except that references to the name of Merger Sub shall be replaced with the name of the Company) (the “Bylaws”),
and as so amended and restated shall be the Bylaws of the Surviving Corporation until thereafter amended as provided therein or by applicable
Law.
1.6 Directors
of the Surviving Corporation. The Parties shall take all actions necessary so that the directors of Merger Sub immediately prior to
the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have
been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of
Incorporation and the Bylaws.
1.7 Officers
of the Surviving Corporation. The Parties shall take all actions necessary so that the officers of Merger Sub immediately prior to
the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have
been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of
Incorporation and the Bylaws.
Article II
EFFECT OF THE MERGER ON SECURITIES; EXCHANGE
2.1 Effect
on Capital Stock. At the Effective Time, as a result of the Merger and without any action on the part of the Company, Parent or Merger
Sub or any holder thereof:
(a) Exchange
Ratio; Merger Consideration. Each Share issued and outstanding immediately prior to the Effective Time (other than Shares held by
the Company (including in treasury) or any of its Subsidiaries or Parent or any of its Subsidiaries, if any (each such Share, an “Excluded
Share” and, collectively, “Excluded Shares”)) shall be converted into the right to receive 0.4274 shares
of Parent Common Stock, without interest thereon (the number of shares of Parent Common Stock in exchange for each Share, the “Exchange
Ratio” and the consideration to be received in respect of such Share, the “Merger Consideration”).
(b) All
of the Shares (other than Excluded Shares) shall cease to be outstanding, shall be cancelled and shall cease to exist, and (A) each
certificate (a “Certificate”) formerly representing any of the Shares (other than Excluded Shares) and (B) each
book-entry account formerly representing any uncertificated Shares (“Uncertificated Shares”) (other than Excluded Shares)
shall thereafter represent only the right to receive (x) the Merger Consideration, (y) any distributions or dividends payable
pursuant to Section 2.2(c) and (z) cash in lieu of any fractional shares of Parent Common Stock payable pursuant
to Section 2.2(e), without interest, in each case, to be issued or paid in consideration therefor (1) upon surrender
of such Certificate in accordance with Section 2.2, in the case of certificated Shares, and (2) upon receipt by the Exchange
Agent of an “agent’s message” in customary form in accordance with Section 2.2(h) in the case of Uncertificated
Shares.
(c) Cancellation
of Excluded Shares. Each Excluded Share shall be cancelled without payment of any consideration therefor and shall cease to exist.
(d) Merger
Sub. Each share of common stock, par value $0.00001 per share, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, $0.00001 par
value per share, of the Surviving Corporation, and such converted shares shall constitute the only outstanding shares of capital stock
of the Surviving Corporation.
2.2 Exchange
of Certificates and Uncertificated Shares.
(a) Exchange
Agent and Exchange Fund. Prior to the Effective Time, the Parties shall designate Equiniti Trust Company, LLC (“Equiniti”)
or if Equiniti is unwilling or unable serve then such other mutually agreeable bank or trust company as the exchange agent in connection
with the Merger (the “Exchange Agent”). The Exchange Agent shall also act as the agent for the Company’s stockholders
for the purpose of receiving and holding their Certificates and Uncertificated Shares and shall obtain no rights or interests in the shares
represented thereby. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares
of Parent Common Stock represented by book entry issuable as the aggregate Merger Consideration; and (ii) cash sufficient to make
payments in lieu of fractional shares in accordance with Section 2.2(e). The shares of Parent Common Stock and cash amounts
so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such
shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Exchange
Procedures. Promptly after the Effective Time (and in any event within three (3) Business Days thereafter), the Exchange Agent
shall mail to each holder of record of Shares represented by a Certificate (other than holders of Excluded Shares) or Uncertificated Shares
(i) with respect to Shares represented by Certificates, a letter of transmittal in customary form specifying that delivery shall
be effected, and risk of loss and title to such Certificates shall pass, only upon delivery of such Certificates (or affidavits of loss
in lieu of the Certificates as provided in Section 2.2(g)) to the Exchange Agent and, with respect to Uncertificated Shares,
such letter of transmittal as the Exchange Agent customarily provides (if any), and (ii) instructions for surrendering such Certificates
(or affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) or Uncertificated Shares (including instructions
for sending an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably
request)) to the Exchange Agent. With respect to a Certificate, upon surrender of such Certificate (or affidavit of loss in lieu of the
Certificate as provided in Section 2.2(g)) to the Exchange Agent in accordance with the terms of such letter of transmittal
or, with respect to Uncertificated Shares, receipt of an “agent’s message” in customary form (or such other evidence,
if any, as the Exchange Agent may reasonably request) by the Exchange Agent, the holder of such Certificate or Uncertificated Share shall
be entitled to receive in exchange therefor (1) non-certificated shares of Parent Common Stock in book-entry form, (2) cash
in lieu of any fractional share of Parent Common Stock pursuant to Section 2.2(e) and (3) any dividends or other
distributions pursuant to Section 2.2(c), less any required Tax withholdings as provided in Section 2.6. The Certificate
or Uncertificated Share so surrendered shall forthwith be cancelled. Until due surrender of a Certificate or Uncertificated Share, each
such Certificate or Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares
of Parent Common Stock (and any distributions or dividends payable pursuant to Section 2.2(c) and cash in lieu of any
fractional share of Parent Common Stock pursuant to Section 2.2(e)). In the event of a transfer of ownership of Shares that
is not registered in the transfer records of the Company, the applicable portion of Merger Consideration to be exchanged upon due surrender
of a Certificate or Uncertificated Share pursuant to Section 2.1 may be issued and paid to such transferee if such Certificate
formerly representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such
transfer, and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish
to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable.
(c) Distributions
with Respect to Unexchanged Shares. All shares of Parent Common Stock to be issued pursuant to the Merger shall be deemed issued and
outstanding as of the Effective Time and whenever a dividend or other distribution is declared by Parent in respect of the Parent Common
Stock, the record date for which is after the Effective Time, that declaration shall include dividends or other distributions in respect
of all shares of Parent Common Stock issuable in the Merger. No dividends or other distributions in respect of the Parent Common Stock
issued pursuant to the Merger shall be paid to any holder of any unsurrendered Certificate of Uncertificated Share until such Certificate
(or affidavit of loss in lieu thereof as provided in Section 2.2(g)) or Uncertificated Share is surrendered for exchange in
accordance with this Section 2.2. Subject to the effect of applicable Laws, following surrender of any such Certificate (or
affidavit of loss in lieu thereof as provided in Section 2.2(g)) or Uncertificated Share, there shall be issued or paid to
the holder of the whole shares of Parent Common Stock issued in exchange therefor, without interest thereon, (A) at the time of such
surrender, the dividends or other distributions with a record date after the Effective Time theretofore payable with respect to such whole
shares of Parent Common Stock and not paid and (B) at the appropriate payment date, the dividends or other distributions payable
with respect to such whole shares of Parent Common Stock with a record date after the Effective Time, but with a payment date subsequent
to surrender.
(d) Transfers.
From and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the Shares that were outstanding
immediately prior to the Effective Time.
(e) Fractional
Shares. No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange
of Certificates or Uncertificated Shares, and such fractional share interests shall not entitle the owner thereof to vote or to any other
rights of a stockholder of Parent. The Exchange Agent, acting as agent for the holders of Shares otherwise entitled to receive fractional
shares of Parent Common Stock, will aggregate all fractional shares of Parent Common Stock that would otherwise have been required to
be distributed and cause them to be sold in the open market for the accounts of such holders. Notwithstanding any other provision of this
Agreement, each holder of Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock shall
receive, in lieu thereof, cash, rounded to the nearest whole cent and without interest, in an amount equal to the proceeds from such sale
by the Exchange Agent, if any, less any reasonable brokerage commissions or other fees, transfer Taxes or other out-of-pocket transaction
costs, as well as any expenses of the Exchange Agent incurred from the sale of such fractional shares of Parent Common Stock in accordance
with such holder’s fractional interest in the aggregate number of shares of Parent Common Stock sold.
(f) Termination
of Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any investments of the Exchange Fund) that remains unclaimed
by the stockholders of the Company for one hundred eighty (180) days after the Effective Time shall be delivered, at Parent’s option,
to Parent. Any holder of Shares (other than Excluded Shares) who has not theretofore complied with Section 2.2(b) shall
thereafter look only to Parent for delivery of any shares of Parent Common Stock, payment of cash in lieu of fractional shares and any
dividends and other distributions in respect of the Parent Common Stock to be issued or paid pursuant to the provisions of this Article II
(after giving effect to any required Tax withholdings as provided in Section 2.6) upon due surrender of its Certificates (or
affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) or Uncertificated Share, without any interest
thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent, Exchange Agent or any other Person shall be liable
to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat
or similar Laws. To the fullest extent permitted by Law, immediately prior to the date any Merger Consideration would otherwise escheat
to or become the property of any Governmental Entity, such Merger Consideration shall become the property of Parent, free and clear of
all claims or interest of any Person previously entitled thereto.
(g) Lost,
Stolen or Destroyed Certificates. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, and, if required by Parent or the Exchange Agent,
the posting by such Person of a bond in such reasonable amount as Parent or the Exchange Agent, as applicable, may direct as indemnity
against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Certificate, the cash in lieu of fractional shares, shares of Parent Common Stock and any dividends and other distributions
in respect of the Parent Common Stock that would have been issuable or payable pursuant to the provisions of this Article II
(after giving effect to any required Tax withholdings as provided in Section 2.6) had such lost, stolen or destroyed Certificate
been surrendered.
(h) Uncertificated
Shares. Any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal to
the Exchange Agent to receive the Merger Consideration, any dividends or other distributions payable pursuant to Section 2.2(c) and
cash in lieu of any fractional shares of Parent Common Stock payable pursuant to Section 2.2(e) that such holder is entitled
to receive pursuant to this Article II in respect of such Uncertificated Shares. In lieu thereof, each registered holder of
one or more Uncertificated Shares whose Shares were converted into the right to receive the Merger Consideration, any distributions or
dividends payable pursuant to Section 2.2(c) and cash in lieu of any fractional shares of Parent Common Stock payable
pursuant to Section 2.2(e), shall, upon receipt by the Exchange Agent of an “agent’s message” in customary
form (or such other evidence, if any, as the Exchange Agent may reasonably request), be entitled to receive, and Parent shall cause the
Exchange Agent to pay and deliver as soon as reasonably practicable after the Effective Time, the Merger Consideration, any dividends
or other distributions payable pursuant to Section 2.2(c) and cash in lieu of any fractional shares of Parent Common
Stock payable pursuant to Section 2.2(e) for each Uncertificated Share, and the Uncertificated Shares of such holder
shall forthwith be cancelled. No interest will be paid or accrued on any amount payable to a holder of Uncertificated Shares.
2.3 Adjustments
to Prevent Dilution. In the event that the Company changes the number of Shares or securities convertible or exchangeable into or
exercisable for any such Shares, or Parent changes the number of shares of Parent Common Stock or securities convertible or exchangeable
into or exercisable for any such Parent Common Stock, in each case issued and outstanding prior to the Effective Time as a result of a
reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, reorganization,
subdivision, or other similar transaction, the Merger Consideration shall be equitably adjusted to eliminate the effects of such event
on the Merger Consideration.
2.4 Treatment
of Equity Awards; Company ESPP.
(a) Company
Options. At the Effective Time, as a result of the Merger and without any action on the part of the Company, Parent or Merger Sub
or any holder thereof:
(i) Converted
Options. Each Company Option that is outstanding and unexercised immediately prior to the Effective Time and that has a per share
exercise price of $18.00 or less shall be converted into an option award to purchase the number of shares of Parent Common Stock (each,
a “Converted Option”) equal to the product obtained by multiplying (i) the number of Shares subject to the Company
Option immediately prior to the Effective Time, by (ii) the Exchange Ratio, with any fractional shares rounded down to the nearest
whole share. Each Converted Option shall have an exercise price per share of Parent Common Stock equal to (x) the per share exercise
price for Shares subject to the corresponding Company Option immediately prior to the Effective Time, divided by (y) the Exchange
Ratio, rounded up to the nearest whole cent. Each Converted Option shall remain subject to the same terms and conditions applicable to
the corresponding Company Option under the applicable Company Stock Plans and the agreements evidencing grants thereunder, including vesting
terms, and the Company Severance Plan.
(ii) Cancelled
Options. Each Company Option that is outstanding and unexercised immediately prior to the Effective Time and that has a per share
exercise price of more than $18.00 shall be cancelled without the payment of any consideration and shall cease to exist.
(b) Company
RSUs. At the Effective Time, as a result of the Merger and without any action on the part of the Company, Parent or Merger Sub or
any holder thereof:
(i) Each
Company RSU that is outstanding and unvested immediately prior to the Effective Time shall be converted into a restricted stock unit award
with respect to a number of shares of Parent Common Stock (each, a “Converted RSU”) equal to the product obtained by
multiplying (i) the total number of Shares subject to the Company RSU immediately prior to the Effective Time by (ii) the Exchange
Ratio, with any fractional shares rounded down to the nearest whole share (such number of shares, the “Converted RSU Parent Shares”).
Each Converted RSU shall remain subject to the same terms and conditions applicable to the corresponding Company RSU under the applicable
Company Stock Plans and the agreements evidencing grants thereunder, including vesting terms, and the Company Severance Plan. Any withholding
obligations arising in connection with the settlement of a Converted RSU shall be satisfied through a net settlement mechanism.
(ii) Each
vested Company RSU, including any Company RSU that becomes vested as a result of the Merger, shall automatically be cancelled and converted
into a right to receive the number of shares of Parent Common Stock equal to (i) the number of Shares subject to the Company RSU
immediately prior to the Effective Time multiplied by (ii) the Exchange Ratio, with any fractional shares rounded down to
the nearest whole share, with any withholding obligations arising in connection with such settlement being satisfied through a net settlement
mechanism.
(c) Company
PSUs. At the Effective Time, as a result of the Merger and without any action on the part of the Company, Parent or Merger Sub or
any holder thereof:
(i) Each
Company PSU that is outstanding and unvested immediately prior to the Effective Time shall have any performance-based conditions deemed
met at 100% of the target level of performance and be converted into a restricted stock unit award with respect to a number of shares
of Parent Common Stock (each, a “Converted Performance RSU”) equal to the product obtained by multiplying (i) the
target number of Shares subject to the Company PSU immediately prior to the Effective Time by (ii) the Exchange Ratio, with any fractional
shares rounded down to the nearest whole share (such number of shares the “Converted PSU Parent Shares”). Converted
Performance RSUs will not have any vesting conditions based on performance metrics and shall vest in three (3) equal installments
on May 15 of calendar years 2025, 2026 and 2027; provided, however, that if the Closing Date occurs after May 15,
2025, the Converted Performance RSUs shall vest in two (2) equal installments on May 15 of calendar years 2026 and 2027 (each,
a “Converted Performance RSU Vesting Date”), subject to the holder of such Converted Performance RSU remaining in service
with Parent or any of its Subsidiaries (including the Surviving Corporation) on such Converted Performance RSU Vesting Date. Except as
described in this paragraph, Converted Performance RSUs shall otherwise remain subject to the same terms and conditions applicable to
the corresponding Company PSU under the applicable Company Stock Plans and the agreements evidencing grants thereunder and the Company
Severance Plan. Any withholding obligations arising in connection with such settlement of a Converted Performance RSU shall be satisfied
through a net settlement mechanism.
(d) Further
Action.
(i) At
or prior to the Effective Time, the Company and the Company Board shall adopt any resolutions and take any actions which are necessary
to effectuate the treatment of the Company Options, the Company RSUs and the Company PSUs (collectively, the “Company Equity
Awards”) set forth in this Section 2.4. As of the Effective Time, the Company Stock Plans will terminate and all
rights under any other plan, program or arrangement providing for the issuance or grant of any other interest with respect to the capital
stock of the Company or any Company Subsidiary will be cancelled.
(ii) At
the Effective Time, Parent shall take all actions as are reasonably necessary to take action with respect to the Company Equity Awards
in accordance with the terms of this Section 2.4. As soon as practicable following the Effective Time, Parent shall prepare
and file with the SEC a Form S-8 (or file such other appropriate form, including, if applicable, the Form S-4 or, once Parent
is eligible, a Form S-3) registering a number of shares of Parent Common Stock necessary to fulfill Parent’s obligations under
this Section 2.4; provided, that, for purposes of any shares of Parent Common Stock required to be registered on a
Form S-3 pursuant to the foregoing, Parent shall file such Form S-3 within 90 days of the date Parent has been subject to the
requirements of Section 12 or 15(d) of the Exchange Act for at least twelve (12) calendar months, to the extent that such shares
are not otherwise freely tradeable under Rule 144 or under an effective registration statement. Parent shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery with respect to the Company Equity
Awards in accordance with this Section 2.4.
(e) Company
ESPP. As soon as practicable following the date hereof, the Company shall take all actions with respect to the Company ESPP to provide
that with respect to any offering periods in effect as of the date hereof (the “Current Purchase Period”), (i) no
employee who is not a participant in the Company ESPP as of the date hereof may become a participant in the Company ESPP and (ii) each
individual participating in the Current Purchase Period in progress on the date of this Agreement shall not be permitted to increase his
or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the date of this Agreement,
except as may be required by applicable Law. Further, (A) if any Current Purchase Period is still in effect at the Effective Time,
then the last day of such Current Purchase Period shall be accelerated to a specified trading day occurring within ten Business Days prior
to the Closing Date and the final purchase of shares of Company Common Stock thereunder shall be made on that day; (B) if the Current
Purchase Period terminates prior to the Effective Time, then the Company ESPP shall be suspended and there will be no new offering periods
following the Current Purchase Period and (C) in all events, subject to the consummation of the Merger, the Company shall terminate
the Company ESPP immediately prior to the Effective Time. Prior to the Effective Time, the Company shall take all actions (including,
if appropriate, amending the terms of the Company ESPP and provide all required notices of the foregoing to the participants in accordance
with the Company ESPP) that are necessary to give effect to the transactions contemplated by this Section 2.4(e).
2.5 No
Dissenter’s Rights. In accordance with Section 262 of the DGCL, no appraisal rights shall be available to holders of Shares
in connection with the Merger or any other transaction contemplated by this Agreement.
2.6 Withholding
Rights. Each of Parent, Merger Sub, the Company and the Surviving Corporation shall be entitled to deduct and withhold from the consideration
and other amounts otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the
making of such payment under the Code or any other applicable Tax Law. To the extent that amounts are so deducted and withheld and paid
to the applicable Governmental Entity, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person
in respect of which such deduction and withholding was made.
Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth
(i) in the Company SEC Documents filed and publicly available after May 9, 2023 but prior to the date of this Agreement (the
“Filed Company SEC Documents”) (excluding any disclosures in the Filed Company SEC Documents in any risk factors section,
any forward-looking disclosure in any section related to forward-looking statements and other disclosures that are predictive or forward-looking
in nature, other than historical facts included therein) or (ii) in the disclosure letter delivered by the Company to Parent at or
before the execution and delivery of this Agreement (the “Company Disclosure Letter”), the Company represents and warrants
to Parent as follows:
3.1 Organization,
Good Standing and Qualification.
(a) The
Company and each of the Company’s Subsidiaries (such Subsidiaries of the Company, the “Company Subsidiaries”)
is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good
standing, to the extent such jurisdiction recognizes such concept), except, in the case of the Company Subsidiaries, where the failure
to be so organized, existing or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to
have a Company Material Adverse Effect. Each of the Company and the Company Subsidiaries is duly qualified or licensed to do business
in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary,
other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would
not reasonably be expected to have a Company Material Adverse Effect.
(b) The
Company has delivered or made available to Parent, prior to execution of this Agreement, true and complete copies of the amended and restated
certificate of incorporation of the Company, dated as of May 9, 2023 (the “Company Charter”) and the amended and
restated bylaws of the Company, dated as of May 9, 2023 (the “Company Bylaws”), in each case, as in effect on
the date of this Agreement.
3.2 Company
Subsidiaries.
(a) Section 3.2(a) of
the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of each of the Company Subsidiaries.
(b) All
the outstanding shares of capital stock or voting securities of, or other equity interests in, each of the Company Subsidiaries and any
shares of capital stock, voting securities or equity interests in any other entity which interests are owned by the Company or any Company
Subsidiary have been validly issued and are owned by the Company, by another Company Subsidiary or by the Company and another Company
Subsidiary, free and clear of all material Liens, and free of any other restriction (including any restriction on the right to vote, sell
or otherwise dispose of such capital stock, voting securities or other equity interests), except for restrictions imposed by applicable
securities laws.
(c) Except
for the capital stock and voting securities of, and other equity interests in, the Company Subsidiaries, neither the Company nor any Company
Subsidiary owns, directly or indirectly, any capital stock or voting securities of, or other equity interests in, or any interest convertible
into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, any firm, corporation,
partnership, company, limited liability company, trust, joint venture, association or other entity other than ordinary course investments
in publicly traded securities constituting one percent or less of a class of outstanding securities of any entity.
3.3 Capital
Structure.
(a) The
authorized capital stock of the Company consists of (i) 790,000,000 Shares and (ii) 10,000,000 shares of preferred
stock, par value $0.00001 (the “Company Preferred Stock” and, together with the Shares, the “Company Capital
Stock”). At the close of business on January 31, 2025, (i) 100,702,249 Shares were issued and outstanding; (ii) no
shares of Company Preferred Stock were issued and outstanding; (iii) no Shares were held by the Company in its treasury; (iv) 21,461,518 Shares
were reserved and available for issuance pursuant to the Company Stock Plans, including (A) 13,644,034 Shares issuable upon
the exercise of outstanding Company Options (whether or not vested and whether or not granted under the Company Stock Plans), (B) 3,142,891 Shares
issuable upon the vesting or settlement of outstanding Company RSUs (whether or not vested and whether or not granted under the Company
Stock Plans), and (C) 640,746 Shares issuable upon the vesting or settlement of outstanding Company PSUs (whether or not vested
and whether or not granted under the Company Stock Plans); and (v) 1,675,454 Shares were reserved for issuance pursuant to the
Company ESPP. Except as set forth in this Section 3.3(a), at the close of business on January 31, 2025, no shares of
capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. From
the close of business on January 31, 2025 to the date of this Agreement, there have been no issuances by the Company of shares of
capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Shares upon the exercise
of Company Options and the issuance of Shares upon the vesting or settlement of Company RSUs and Company PSUs, in each case, outstanding
at the close of business on January 31, 2025 and in accordance with their terms in effect at such time.
(b) The
Company has delivered or made available to Parent copies of all Company Stock Plans covering the Company Options, the Company RSUs and
the Company PSUs outstanding as of the date of this Agreement, the forms of all stock option agreements evidencing such Company Options,
and the restricted stock unit agreements evidencing such Company RSUs and Company PSUs. The Company has delivered or made available to
Parent copies of the Company ESPP and applicable offering documents.
(c) All
outstanding shares of Company Capital Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise, settlement
or vesting of the Company Options, Company RSUs or Company PSUs will be, duly authorized, validly issued, fully paid and nonassessable
and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription
right or any similar right under any provision of the DGCL, the Company Charter, the Company Bylaws, any Contract to which the Company
is a party or otherwise bound, or by applicable Law.
(d) Except
as set forth in this Section 3.3, there are no issued, reserved for issuance or outstanding, and there are no outstanding
obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (x) any
capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or
exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company
Subsidiary, (y) any warrants, calls, options or other rights to acquire from the Company or any Company Subsidiary, or any other
obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock
or voting securities of, or other equity interests in, the Company or any Company Subsidiary or (z) any rights issued by or other
obligations of the Company or any Company Subsidiary that are linked in any way to the price of any class of the capital stock of the
Company or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the
Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company
or any Company Subsidiary. Other than (1) the withholding of Shares to satisfy Tax obligations with respect to awards granted pursuant
to the Company Stock Plans and (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection
with the forfeiture of such awards, there are not any outstanding obligations of the Company or any of the Company Subsidiaries to repurchase,
redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests of the Company or any Company Subsidiary
or any securities, interests, warrants, calls, options or other rights referred to in clauses (x) through (z) of the
immediately preceding sentence. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Other than as contemplated by this Agreement, neither the Company nor any of the Company Subsidiaries nor, to the Knowledge of the Company,
any of the Company’s stockholders is a party to (i) any voting Contract with respect to the voting of any capital stock or
voting securities of, or other equity interests in, the Company or (ii) any Contract pursuant to which any Person is entitled to
elect, designate or nominate any director of the Company or any of the Company Subsidiaries.
(e) No
Subsidiary of the Company owns any Shares.
(f) Neither
the Company nor any Company Subsidiary or associates (as defined in Section 203 of the DGCL) owns, or has owned at any time within
the past three (3) years, any shares of Parent Common Stock.
3.4 Corporate
Authority and Approval.
(a) The
Company has all requisite corporate power and authority to execute and deliver this Agreement and, subject to receipt of the Company Stockholder
Approval, to perform its obligations hereunder and to consummate the transactions contemplated hereby. On or prior to the date of this
Agreement, the Company Transaction Committee adopted resolutions, by vote at a meeting duly called: (i) determining that this Agreement
and the transactions contemplated hereby are advisable, fair to and in the best interests of the Company and its stockholders, (ii) recommending
to the Company Board that it approve the execution, delivery and performance by the Company of this Agreement and the consummation by
the Company of the transactions contemplated hereby, including the Merger, (iii) recommending to the Company Board that it direct
that this Agreement be submitted to the Company’s stockholders for adoption and (iv) recommending to the Company Board that
it recommend that the stockholders of the Company adopt this Agreement. As of the date of this Agreement, such resolutions have not been
amended or withdrawn. On or prior to the date of this Agreement, the Company Board adopted resolutions, by vote at a meeting duly called:
(i) determining that this Agreement and the transactions contemplated hereby are advisable, fair to and in the best interests of
the Company and its stockholders, (ii) approving the execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby, including the Merger, (iii) directing that this Agreement be
submitted to the Company’s stockholders for adoption and (iv) recommending that the stockholders of the Company adopt this
Agreement. As of the date of this Agreement, such resolutions have not been amended or withdrawn.
(b) Except
for the adoption of this Agreement by the affirmative vote of the holders of a majority of the outstanding Shares with respect to the
Merger (the “Company Stockholder Approval”), no other corporate proceedings on the part of the Company are necessary
to authorize, adopt or approve, as applicable, this Agreement or to consummate the transactions contemplated hereby (except for the filing
of the appropriate merger documents as required by the DGCL). The Company has duly executed and delivered this Agreement and, assuming
the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes its legal, valid and binding obligation,
enforceable against the Company in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency,
reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity (the “Bankruptcy
and Equity Exception”).
(c) The
Company and the Company Board have taken all action necessary to exempt each of the execution and delivery of this Agreement and the transactions
contemplated hereby under or thereunder, or make not subject, to (i) assuming the accuracy of the representations and warranties
of Parent and Merger Sub in Section 4.3(f), the provisions of Section 203 of the DGCL, (ii) any other applicable
“fair price,” “moratorium,” “control share acquisition” or other similar antitakeover statute or similar
statute or regulation or (iii) any provision of the organizational documents of the Company and the Company Subsidiaries that would
require any corporate approval other than that otherwise required by the DGCL or other applicable state Law. There is no stockholder rights
plan, “poison pill” antitakeover plan or similar device in effect to which the Company or any of its Subsidiaries is subject,
party or otherwise bound.
3.5 No
Conflicts; Consents.
(a) The
execution and delivery of this Agreement by the Company does not, and the performance by the Company of its obligations hereunder and
the consummation of the transactions contemplated hereby will not: (i) conflict with, or result in any violation of any provision
of, the Company Charter, the Company Bylaws or the comparable charter or organizational documents of any Company Subsidiary (assuming
that the Company Stockholder Approval is obtained), (ii) conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, give rise to a right of termination, cancellation or acceleration of any obligation under, give
rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital stock under, result in any loss of a material
benefit under, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company
or any Company Subsidiary under, any provision of any Company Material Contract or any material Company Permit or (iii) conflict
with, or result in any violation of any provision of, subject to the filings and other matters referred to in Section 3.5(b),
any Judgment or Law, in each case, applicable to the Company or any Company Subsidiary or their respective properties or assets (assuming
that the Company Stockholder Approval is obtained), other than, in the case of clauses (ii) and (iii), any matters that, individually
or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect and would not prevent
or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated hereby.
(b) No
Consent of or from, or registration, declaration, notice or filing made to or with any Governmental Entity is required to be obtained
or made by, or with respect to the Company or any Company Subsidiary in connection with the execution and delivery of this Agreement or
its performance of its obligations hereunder or the consummation of the transactions contemplated hereby, other than: (i)(A) the
filing with the SEC of the Joint Proxy Statement/Prospectus in definitive form, (B) the filing with the SEC, and declaration of effectiveness
under the Securities Act, of the Form S-4, and (C) the filing with the SEC of such reports and other filings under, and such
other compliance with, the Exchange Act and the Securities Act as may be required in connection with this Agreement and the transactions
contemplated hereby, (ii) compliance with and filings under any applicable Antitrust Laws, (iii) receipt of the Company Stockholder
Approval, (iv) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, and the filing of appropriate
documents with the relevant authorities of the other jurisdictions in which the Company are qualified to do business, (v) such Consents,
registrations, declarations, notices or filings as are required to be made or obtained under the securities or “blue sky”
laws of various states in connection with the issuance of the shares of Parent Common Stock to be issued as the Merger Consideration,
(vi) such filings with and approvals of Nasdaq as are required to permit the consummation of the Merger and the listing of the shares
of Parent Common Stock to be issued as the Merger Consideration and (vii) such other matters that, individually or in the aggregate,
have not had and would not reasonably be expected to have a Company Material Adverse Effect and would not prevent or materially impede,
interfere with, hinder or delay the consummation of the transactions contemplated hereby.
3.6 Company
SEC Documents; Financial Statements.
(a) The
Company has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits and other information
incorporated therein) required to be furnished or filed by the Company with the SEC since May 9, 2023 (such documents, together with
any documents filed with the SEC during such period by the Company on a voluntary basis on a Current Report on Form 8-K, being collectively
referred to as the “Company SEC Documents”).
(b) Each
Company SEC Document (i) at the time filed (or, if amended or superseded by a filing or amendment prior to the date of this agreement,
then at the time of such filing or amendment), complied as to form in all material respects with the requirements of SOX and the Exchange
Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such
Company SEC Document and (ii) did not at the time it was filed (or if amended or superseded by a filing or amendment prior to the
date of this Agreement, then at the time of such filing or amendment) contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Each of the consolidated financial statements of the Company included in the Company SEC Documents
complied at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, was prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto)
and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as
of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited
statements, to normal year-end audit adjustments as permitted by GAAP and the applicable rules and regulations promulgated by the
SEC, which were not, or are not expected to be, material in amount or effect). As of the date hereof, there are no unresolved comments
issued by the staff of the SEC with respect to any of the Company SEC Documents.
3.7 Internal
Controls and Procedures.
(a) Each
of the chief executive officer of the Company and the chief financial officer of the Company (or each former chief executive officer of
the Company and each former chief financial officer of the Company, as applicable) has made all applicable certifications required by
Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of SOX with respect to the Company SEC Documents, and the statements
contained in such certifications are true and accurate. For purposes of this Agreement, “chief executive officer” and “chief
financial officer” shall have the meanings given to such terms in SOX. None of the Company or any of the Company Subsidiaries has
outstanding, or has arranged any outstanding, “extensions of credit” to directors or executive officers within the meaning
of Section 402 of SOX.
(b) The
Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of
the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with
the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition
of the Company’s properties or assets.
(c) The
Company is in compliance in all material respects with the applicable Nasdaq listing and corporate governance rules and requirements.
(d) The
Company maintains and has at all times since May 9, 2023, maintained “disclosure controls and procedures” (as defined
in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the periods specified in the rules and forms of the SEC and that all such information required to be disclosed
is accumulated and communicated to the management of the Company to allow timely decisions regarding required disclosure and to enable
the chief executive officer and chief financial officer of the Company to make the certifications required under the Exchange Act with
respect to such reports.
(e) Neither
the Company nor any Company Subsidiary is a party to, or has any commitment to become a party to, any joint venture, off balance sheet
partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among
the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance,
special purpose or limited purpose entity or Person, on the other hand, or any “off balance sheet arrangements” (as defined
in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is
to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company Subsidiaries
in the Company’s or such Company Subsidiary’s published financial statements.
3.8 Absence
of Certain Changes.
(a) Since
the date of the Company Balance Sheet through the date of this Agreement, there has not been a Company Material Adverse Effect.
(b) From
the date of the Company Balance Sheet until the date of this Agreement, the business of the Company and its Subsidiaries, taken as a whole,
has been conducted in the ordinary course of business consistent with past practice and neither the Company nor any of the Company’s
Subsidiaries have taken any actions that, if taken after the date hereof, would require Parent’s consent under Section 5.1(b),
except for Section 5.1(b)(iv), Section 5.1(b)(xiii) or Section 5.1(b)(xvii)(2).
(c) Prior
to the date hereof, the Company has not taken any of the actions set forth on Section 3.8(c) of the Company Disclosure
Letter.
3.9 Litigation
and Liabilities.
(a) There
is no, and since January 1, 2022, there has been no, Legal Proceeding pending or, to the Knowledge of the Company, threatened against
the Company or any Company Subsidiary or any of their respective properties or assets that, individually or in the aggregate, has resulted
in or would reasonably be expected to result in a liability or obligation that is material to the Company and its Subsidiaries, taken
as a whole, and would not prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated
hereby. There is no, and since January 1, 2022, there has been no, Judgment outstanding against or, to the Knowledge of the Company,
investigation by any Governmental Entity involving the Company or any Company Subsidiary or any of their respective properties or assets
that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect and would not
prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated hereby.
(b) Except
(i) as reflected or reserved against in the Company’s consolidated unaudited balance sheet as of September 30, 2024 (or
the notes thereto) (the “Company Balance Sheet”) as included in the Company SEC Documents, (ii) for liabilities
and obligations incurred since September 30, 2024 in the ordinary course of business and (iii) for liabilities and obligations
incurred as permitted by this Agreement, incurred in connection with the transactions contemplated hereby or that are otherwise Transaction
Expenses, neither the Company nor any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) that, individually or in the aggregate, have had or would reasonably be expected to have a Company Material Adverse
Effect. For purposes of this Section 3.9(b), the term “liabilities” shall not include liabilities or obligations
of the Company or any Company Subsidiary to perform under or comply with any applicable Law, Legal Proceeding, Judgment or Contract, but
would include such liabilities and obligations if there has been a default or failure to perform or comply by the Company or any Company
Subsidiary with any such liability or obligation if such default or failure would, with the giving of notice or passage of time or both,
reasonably be expected to result in a monetary obligation or the imposition of injunctive or other equitable remedies.
3.10 Compliance
with Laws. The Company and the Company Subsidiaries are, and since January 1, 2022 have been, in compliance with all applicable
Laws and Company Permits, except for matters that, individually or in the aggregate, have not had and would not reasonably be expected
to have a Company Material Adverse Effect and would not prevent or materially impede, interfere with, hinder or delay the consummation
of the transactions contemplated hereby. There is no, and since January 1, 2022, there has been no, action, demand or investigation
by or before any Governmental Entity pending or, to the Knowledge of the Company, threatened alleging that the Company or a Company Subsidiary
is not in compliance with any applicable Law or the Company Permit or which challenges or questions the validity of any rights of the
holder of any Company Permit, except for matters that, individually or in the aggregate, have not had and would not reasonably be expected
to have a Company Material Adverse Effect and would not prevent or materially impede, interfere with, hinder or delay the consummation
of the transactions contemplated hereby.
3.11 Contracts.
(a) Except
for this Agreement, neither the Company nor any Company Subsidiary is a party to any Contract required to be filed by the Company as a
“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (each, a “Filed
Company Contract”) that has not been so filed.
(b) Other
than Filed Company Contracts, Section 3.11(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement,
a true and complete list, and the Company has made available to Parent true and complete copies, of the following Contracts (and Filed
Company Contracts without any redactions) to which Company or any Company Subsidiary is a party or that bind assets of Company or any
Company Subsidiary:
(i) each
Contract, including any manufacturing, supply or distribution agreement, that requires by its terms or is reasonably likely to require
the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount (1) in excess
of $3,000,000 in the fiscal year ending December 31, 2024 or (2) in excess of $3,000,000 in the fiscal year ending December 31,
2025 or any fiscal year thereafter;
(ii) each
Contract that obligates the Company or any Subsidiary of the Company to make any capital investment or capital expenditure in excess of
$500,000;
(iii) each
Contract to which the Company or any of the Company Subsidiaries is a party that:
(A) materially
restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area
or would, to the Knowledge of the Company, restrict in any material respect the ability of Parent or any of its Subsidiaries to compete
in any business or with any Person in any geographical area after the Effective Time,
(B) requires
the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party,
(C) any
“take or pay,” minimum purchase or minimum volume commitment provisions,
(D) provides
for “exclusivity” or any similar requirement in favor of any third party, or
(E) contains
any other provisions materially restricting or purporting to materially restrict the ability of the Company or any of its Subsidiaries
to sell, market, distribute, promote, manufacture, develop, commercialize, or test or research any product or product candidate, directly
or indirectly through third parties, or that would so limit or purport to limit Parent or any of its Affiliates after the Effective Time;
(iv) each
Contract evidencing Indebtedness of the Company or any of the Company Subsidiaries, other than any such agreement between or among the
Company and the wholly owned Company Subsidiaries and other than accounts payable in the ordinary course of business;
(v) any
Contract involving the settlement or compromise of any Legal Proceeding or threatened Legal Proceeding (or series of related Legal Proceedings)
which (A) involves either payments by the Company or any of its Subsidiaries after the date hereof in excess of $500,000, or (B) imposes
any materially burdensome monitoring or reporting obligations to any other Person outside the ordinary course of business or any other
material restrictions or liabilities on the Company or any Company Subsidiary (or, following the Closing, on Parent or any Parent Subsidiary);
(vi) each
Company Lease;
(vii) each
partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party;
(viii) each
Contract with any Governmental Entity;
(ix) any
Contract pursuant to which the Company or any of the Company Subsidiaries has continuing guarantee, “earn-out” or other contingent
payment obligations, in each case that would reasonably be expected to result in payments in excess of $3,000,000;
(x) any
Contract that is a license agreement (including all regional licensing transactions), covenant not to sue agreement or co-existence agreement
or similar agreement, each of the foregoing that is material to the business of the Company and its Subsidiaries, taken as a whole, to
which the Company or any of the Company Subsidiaries is a party and licenses in Intellectual Property Rights owned by a third party or
licenses out any Company IP or agrees not to assert or enforce Company Owned IP, including each Company In-bound License (but excluding
any Standard Contract), and each Company Out-bound License (but excluding any Standard Contract);
(xi) each
Contract (A) pursuant to which the Company or any of its Subsidiaries may be required after the date of this Agreement to pay milestones,
royalties or other contingent payments based on the results or outcome of any research, testing or development; regulatory filings or
approval; sale; distribution; commercial manufacture or other similar occurrences, developments, activities or events, or (B) under
which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase,
option to license, or any other similar rights with respect to any product or product candidate of the Company or any Intellectual Property
Rights owned or purported to be owned by or licensed to the Company or any of its Subsidiaries (or, following the Closing, with respect
to any product or product candidate of Parent or any Intellectual Property Rights of Parent or any of its Subsidiaries);
(xii) each
employment agreement, offer letter, independent contractor agreement or other similar Contract with any employee, individual consultant,
or independent contractor of the Company or any of its Subsidiaries that is not terminable at-will by the Company without less than 30
days’ notice and without any severance, or other cost or liability (other than costs and liabilities for work performed and expenses
accrued prior to termination and notice or payments required under applicable Laws);
(xiii) each
Contract with any employee, individual consultant, or independent contractor of the Company or any of its Subsidiaries or other Person
providing for retention payments, change of control payments, severance, accelerated vesting or any other payment or benefit for any such
employee, individual consultant, or independent contractor that may or will become due as a result of the Merger; and
(xiv) each
Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any
material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with
respect to which there is no ongoing material liability or material obligation of the Company or any Company Subsidiaries).
Each Contract of the type described
in this Section 3.11(b) and each Filed Company Contract is referred to herein as a “Company Material Contract”.
(c) Except
for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse
Effect, each Company Material Contract (including, for purposes of Section 6.2(a), any Contract entered into after the date
of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) (i) is
a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the
Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity
Exception, and (ii) is in full force and effect. None of Company or any of the Company Subsidiaries is (with or without notice or
lapse of time, or both) in material breach or default under any such Company Material Contract (including, for purposes of Section 6.2(a),
any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on
the date of this Agreement) and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without
notice or lapse of time, or both) in material breach or default thereunder.
3.12 Benefits
Matters; ERISA Compliance.
(a) Section 3.12(a) of
the Company Disclosure Letter sets forth a true, complete and correct list of each material Company Plan.
(b) True
and complete copies of the following documents, with respect to each material Company Plan, where applicable, have been provided or made
available to Parent on or prior to the date of this Agreement (other than option notices and grant agreements made on forms provided or
made available to Parent and other than at-will employment offer letters entered into on forms provided or made available to Parent):
(i) all material documents embodying or governing such Company Plan (or, if unwritten, a written summary thereof), and all amendments
thereto, and to the extent applicable, any related trust or other funding vehicle, (ii) the most recent determination letter or opinion
letter received from or issued by the IRS with respect to each Company Plan intended to qualify under Section 401 of the Code, (iii) the
three (3) most recently filed IRS Form 5500s, (iv) the most recent summary plan description, and (v) all material
correspondence to and from any Governmental Entity in the previous three (3) years.
(c) Except
as would not have, individually or in the aggregate, a Company Material Adverse Effect, all Company Plans are, and have been operated
and administered, in compliance with their terms and applicable Laws (including, if applicable, ERISA and the Code) in all material respects.
Each Company Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the
Code has been operated and maintained in all material respects in compliance with Section 409A of the Code and applicable guidance
thereunder and no payment to be made under any Company Plan is, or to the Knowledge of the Company, will be, subject to the penalties
of Section 409A(a)(1) of the Code. Each Company Option has been granted with an exercise price equal to fair market value on
the date of grant (or repricing, as the case may be) and is not subject to taxation under Section 409A of the Code. The Company does
not have any obligation to gross-up or otherwise reimburse any person for any tax incurred by such person pursuant to Section 409A,
Section 280G or Section 4999 of the Code.
(d) To
the Knowledge of the Company, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406
and 407 of ERISA, and no breach of fiduciary duty (as determined under ERISA) has occurred with respect to any Company Plan or current
or former service provider of the Company or the Company Subsidiaries that would reasonably be expected to result in any liability to
the Company or any ERISA Affiliate. None of the Company nor any ERISA Affiliate is subject to any penalty or Tax with respect to any Company
Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. Except as would not have, individually or
in the aggregate, a Company Material Adverse Effect, the Company and each ERISA Affiliate have timely made all contributions, distributions,
reimbursements and payments that are due with respect to each Company Plan, and all contributions, distributions, reimbursements and payments
for any period ending on or before the Closing Date that are not yet due have been made or properly accrued with respect to each Company
Plan. Each Company Plan can be amended, terminated or otherwise discontinued at any time in accordance with its terms, without liability
to Parent, the Company or any ERISA Affiliate (other than ordinary administration expenses).
(e) Each
Company Plan that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter
or opinion letter from the Internal Revenue Service (the “IRS”) and, to the Knowledge of the Company, circumstances
do not exist that are likely to result in the loss of the qualification of such plan under Section 401(a) of the Code. Each
non-U.S. Company Plan, to the extent required to be registered or approved by any Governmental Entity, has been registered with, or approved
by, such Governmental Entity and, to the Knowledge of the Company, nothing has occurred that would adversely affect such registration
or approval.
(f) Neither
the Company nor any Company Subsidiary nor any entity which is considered one employer with the Company under Section 4001 of ERISA
or Section 414 of the Code (each, an “ERISA Affiliate”) has, within the past six (6) years, maintained or
contributed to, or has, within the past six (6) years, been obligated to maintain or contribute to (i) an “employee pension
benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or
Section 302 of ERISA (including any “multiemployer plan” within the meaning of Section (3)(37) of ERISA), (ii) a
“multiple employer plan” as defined in Section 413(c) of the Code or (iii) a “multiple employer welfare
arrangement” within the meaning of Section 3(40) of ERISA.
(g) There
are no pending or, to the Knowledge of the Company or any Company Subsidiary, threatened Legal Proceedings relating to the Company Plans
or any fiduciary or service provider thereof, and, to the Knowledge of the Company, there is no reasonable basis for any such Legal Proceeding.
(h) Neither
the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could reasonably be expected
to, either alone or in combination with any other event, under any Company Plan (i) result in any payment becoming due to any current
or former employee, officer, director or other service provider of the Company or any Company Subsidiary, (ii) increase the amount
or value of any compensation or benefits or otherwise payable by the Company or any Company Subsidiary to any current or former Company
Associate, (iii) result in the acceleration of the time of payment, vesting or funding of any compensation or benefits, except as
required under Section 411(d)(3) of the Code, or (iv) limit the right of the Company or any Company Subsidiary to amend,
merge, terminate or receive a reversion of assets from any Company Plan or related trust.
(i) Neither
the execution and delivery or performance of this Agreement nor the consummation transactions contemplated hereby (whether alone or in
combination with other events or circumstances) will result in any payment or benefit with respect to any “disqualified individual”
(as defined in Section 280G of the Code) that could be characterized as an “excess parachute payment” within the meaning
of Section 280G(b)(1) of the Code.
(j) Neither
the Company nor any ERISA Affiliate provides, is required to provide, or has promised to provide, any post-employment or post-retirement
health or medical or life insurance benefits for retired or former employees or their dependents, except as required by Section 4980B
of the Code or similar state law.
(k) No
Company Plan is, and neither the Company nor any Company ERISA Affiliate has or has ever sponsored, maintained contributed to, been required
to contribute to or had or has any obligations or liability (current or contingent) under or with respect to any plan, policy, program,
agreement and arrangement that covers any employee, former employee or consultant of the Company or any Company Subsidiaries or any ERISA
Affiliate who resides or works outside the United States.
3.13 Labor
Matters.
(a) The
Company has provided to Parent a complete and correct list, as of the date of this Agreement, of all current Company Associates which
sets forth the following information with respect to each, as applicable: (i) name (or identification number, if required by applicable
Law), (ii) title or position, (iii) the entity or entities by which such individual is employed, (iv) hire date, (v) current
annual or hourly base compensation or contract rate or other terms of compensation, (vi) target bonus or incentive compensation rates
for the current fiscal year, (vii) full-time or part-time status, (xiii) exempt or nonexempt status and (ix) employment
location.
(b) All
employees of the Company and the Company Subsidiaries are employed on an at will basis and their employment can be terminated at any time,
with or without notice, severance, or other similar benefit, for any reason or no reason at all. No employee of the Company or a Company
Subsidiary has been granted the right to continued employment by the Company or any Company Subsidiary. The engagements of all consultants
and independent contractors are terminable by the Company without advance notice of greater than thirty days, material termination fee,
or other material penalty.
(c) Except
as would not be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, the Company and the
Company Subsidiaries are, and since January 1, 2022 have been, in compliance in all material respects with all applicable Laws related
to labor and employment, including those pertaining to payment of wages and other compensation, overtime, meal and rest break requirements,
classification of employees as exempt or non-exempt and classification of workers as employees or independent contractors, hours of work,
leaves of absence, equal opportunity, discrimination, harassment, immigration, occupational health and safety, workers’ compensation,
background checks, hiring, pre-employment tests, affirmative action, equal pay, restrictive covenants and the payment of social security
and other Taxes. There are no, and since January 1, 2022, there have not been any, Legal Proceedings or complaints related to labor
or employment matters (including the matters listed in the foregoing sentence), including, to the Knowledge of the Company, any such Legal
Proceedings or complaints threatened or pending before the Equal Employment Opportunity Commission, the National Labor Relations Board,
the U.S. Department of Labor, the U.S. Occupational Health and Safety Administration or any other similar Governmental Entity, against
or involving the Company or any Company Subsidiary or pertaining to any employee, independent contractor or consultant of the Company
or any Company Subsidiary. Except as would not be, individually or in the aggregate, material to the Company and its Subsidiaries, taken
as a whole, the Company has withheld and paid to the appropriate Governmental Entity or is holding for payment not yet due to such Governmental
Entity all amounts required to be withheld from all payments to all current and former Company Associates and is not liable for any arrears
of wages, Taxes, penalties or other sums for failure to comply with any of the foregoing.
(d) The
Company and Company Subsidiary are not, and have never been, party to any collective bargaining or other Contract with any labor union
or organization. No labor organization or group of employees of the Company or any Company Subsidiary has made a demand for recognition
or certification, and to the Knowledge of the Company, there are no representation or certification proceedings or petitions seeking a
representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other
labor relations tribunal or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations,
grievances, or other labor disputes pending or, to the Knowledge of the Company, threatened against or involving the Company or any Company
Subsidiary.
(e) Except
as would not be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, the Company is in full
compliance with the Worker Readjustment and Notification Act (29 USC §2101) and any other similar Laws or other legal requirements
(collectively, the “WARN Act”), and the Company has never engaged in any redundancies, reductions in force, mass layoffs,
plant closings or other employment action that required, or reasonably could have required, advance notice under the WARN Act. No Company
employees have experienced an “employment loss,” as defined in the WARN Act, in the past 90 days.
(f) As
of the date of this Agreement: (i) no claims, allegations, or reports of discrimination, retaliation, harassment, or sexual harassment
have been made to the Company against any current or former Company Associate at the level of senior director or above and (ii) the
Company has never conducted any investigations or entered into any settlement agreements with respect to any such claims, allegations,
or reports.
3.14 Environmental
Matters. Except for matters that, individually or in the aggregate, are not reasonably likely to result in a liability that is material
to the Company and its Subsidiaries, taken as a whole: (i) neither the Company nor any Company Subsidiary is in violation of any
Environmental Law; and (ii) the Company and any Company Subsidiary have all permits, licenses and other authorizations required under
any Environmental Law and the Company and its Subsidiaries are in compliance with such permits, licenses and other authorizations.
3.15 Taxes.
(a) Except
as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) The
Company and the Company Subsidiaries have filed all Tax Returns that are or have been required to be filed by them, and all such Tax Returns
were true, correct and complete.
(ii) All
Taxes required to be paid by the Company or any Company Subsidiary have been timely paid (whether or not shown or required to be shown
on any Tax Return).
(iii) The
Company has made adequate provision in the Company Balance Sheet for all accrued Taxes of the Company and the Company Subsidiaries not
yet due, and the Company and the Company Subsidiaries have not incurred any liability for Taxes other than in the ordinary course of business
since the date of the Company Balance Sheet.
(iv) No
deficiency for any Tax has been proposed or assessed by a Governmental Entity in writing against the Company or any Company Subsidiary
which deficiency has not been paid, settled, or withdrawn.
(v) There
are no Legal Proceedings in respect of Taxes by a Governmental Entity pending or threatened in writing with respect to the Company or
any Company Subsidiary.
(vi) All
transactions (including intragroup transactions) between the Company and the Company Subsidiaries have been conducted in compliance with
the applicable transfer pricing laws in force in the relevant tax years (including, for the avoidance of doubt, Section 482 of the
Code (and any corresponding or similar provision of state, local, or non-U.S. Law)).
(b) There
are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the Company or any Company Subsidiary.
(c) Neither
the Company nor any Company Subsidiary is a resident for any income Tax purpose in any country (other than the country in which it is
organized) or subject to income tax therein by virtue of having a permanent establishment (within the meaning of an applicable Tax treaty)
or fixed place of business in that country. In the last three (3) years, no written claim has been made in writing by any Governmental
Entity in a jurisdiction where the Company or any Company Subsidiary does not currently file Tax Returns of a certain type or pay Taxes
of a certain type that the Company or such Company Subsidiary is required to file Tax Returns or pay Taxes of such type that has not since
been resolved.
(d) Except
as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company
and the Company Subsidiaries have withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(e) Neither
the Company nor any Company Subsidiary has waived any statute of limitations in respect of Taxes or agreed to (or requested) any extension
of time with respect to a Tax assessment or deficiency, in each case that is currently in effect (or would become effective if such request
were granted), other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business.
(f) Neither
the Company nor any Company Subsidiary is a party to or is bound by any material Tax sharing, allocation or indemnification agreement
or arrangement (other than such agreements or arrangements (i) exclusively between or among the Company and any Company Subsidiary
or (ii) with third parties made in the ordinary course of business, the principal purpose of which is not Tax).
(g) Neither
the Company nor any Company Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504
of the Code or a group filing Tax Returns on a consolidated, affiliated, combined, unitary or similar basis other than an affiliated group
of which the Company is the common parent or (ii) has any liability for the Taxes of any Person (other than the Company or any Company
Subsidiary) under Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of U.S. state, local or non-U.S.
Tax Law), as a transferee or successor, or otherwise by operation of Law.
(h) Within
the past two (2) years, neither the Company nor any Company Subsidiary has been a “distributing corporation” or “controlled
corporation” in a transaction intended to qualify under Section 355 of the Code.
(i) Neither
the Company nor any Company Subsidiary has ever participated in a “listed transaction” within the meaning of Treasury Regulations
Section 1.6011-4(b)(2).
(j) Neither
the Company nor any Company Subsidiary (nor Parent as a result of the Merger) will be required to include any material item of income
in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing
Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481
of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. income Tax Law) made prior to the Closing; (ii) “closing
agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S.
income Tax Law) executed prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing;
or (iv) intercompany transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code
(or any corresponding or similar provision of U.S. state, local or non-U.S. Tax Law) entered into or created prior to the Closing.
(k) Section 3.15(k) of
the Company Disclosure Letter sets forth any entity classification elections made on behalf of any Company Subsidiary for U.S. federal
income tax purposes. Neither the Company nor any Company Subsidiary has made an election or taken any other action to change its federal
income tax classification from such classification.
(l) The
Company and its Subsidiaries have not taken any action, nor to the Knowledge of the Company or any of its Subsidiaries are there any facts
or circumstances, that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the
meaning of Section 368(a) of the Code.
3.16 Intellectual
Property.(a) For
each item of material Registered IP within the Company Owned IP (“Company Owned Registered
IP”), and each item of material Registered IP within the Company Licensed IP (“Company
Licensed Registered IP” and, collectively with Company Owned Registered IP, the “Company Registered IP”),
Section 3.16(a) of the Company Disclosure Letter identifies (i) the name of
the applicant/registrant, (ii) the jurisdiction of application/registration, (iii) the application, patent or registration number
and (iv) any other co-owners. To the Knowledge of the Company, each of the patents and
patent applications included in the Company Owned Registered IP properly identifies by name each and every inventor of
the inventions claimed therein as determined in accordance with applicable Laws of the United States. As of the date of this Agreement,
no interference, opposition, reissue, reexamination or other proceeding of any nature (other than patent prosecution activities being
conducted before a Governmental Entity in the ordinary course of business) is pending or, to the Knowledge of the Company, has been threatened
in writing, in which the scope, validity, enforceability or ownership of any Company Registered IP listed on Section 3.16(a) of
the Company Disclosure Letter is being or has been contested or challenged.
(b) The
Company owns all right, title and interest in and to all material Company Owned IP (other than as disclosed on Section 3.16(a) of
the Company Disclosure Letter), free and clear of all Liens other than Permitted Liens and any Lien
caused or created by any action or failure to act by any Person other than the Company or any Company Subsidiary, and, to the Knowledge
of the Company, has the right, pursuant to valid agreements to use all other material Intellectual Property Rights used to conduct
the business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement; provided, however,
that the foregoing shall not be construed as a representation or warranty with respect to infringement of the patent rights of any Person.
The Company has executed valid and enforceable written agreements with each of its current and former Company Associates and any other
Persons who were or are, as applicable, engaged in creating or developing any material Company Owned IP, pursuant to which each such Person
has: (i) agreed to hold all trade secrets and confidential information of the Company in confidence both during and after (subject
to the terms of the applicable agreement) such Person’s employment or retention, as applicable; and (ii) presently assigned
to the Company all of such Person’s rights, title and interest in and to all material Intellectual Property Rights, created or developed
for the Company or any Company Subsidiary in the course of such Person’s employment or retention thereby. To the Knowledge of the
Company, no party thereto is in default or breach of any such agreements.
(c) To
the Knowledge of the Company, no funding, facilities or personnel of any Governmental Entity or any university, college, research institute
or other educational institution is being or was used in the creation of material Company Owned IP or was used in the creation of any
Company Licensed IP, except for any such funding or use of facilities or personnel that does not result in such Governmental Entity or
institution obtaining ownership rights to such material Company Owned IP or the right to receive royalties for the practice of such material
Company Owned IP.
(d) Section 3.16(d) of
the Company Disclosure Letter sets forth each license agreement pursuant to which the Company (i) is granted a license under any
Company Licensed IP or other material Intellectual Property Rights owned by any third party that is used in the conduct of the
business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement (each,
a “Company In-bound License”), other than any Standard Contract, or (ii) grants to any third party
a license or sublicense under any material Company IP (each, a “Company Out-bound License”), other than any Standard
Contract.
(e) To
the Knowledge of the Company: (i) the operation of the business of the Company and the Company Subsidiaries as currently conducted
does not infringe and has not infringed any valid and enforceable Registered IP owned by any third party or misappropriate or otherwise
violate any other Intellectual Property Rights owned by any third party; and (ii) no third party is infringing, misappropriating
or otherwise violating any material Company IP. As of the date of this Agreement, no Legal Proceeding is pending (or, to the Knowledge
of the Company, has been threatened in writing) (A) against the Company alleging that the operation of the business of the Company
and the Company Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of any
third party or (B) by the Company that any third party has infringed, misappropriated or otherwise
violated any of the Company IP. Since January 1, 2022 and, to the Knowledge of the Company, prior to such date, the Company has not
received any written notice or other written communication alleging that the operation of the business of the Company and the Company
Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of any third party.
(f) The
Company has maintained commercially reasonable security and other measures, including measures against unauthorized disclosure, designed
to protect the secrecy, confidentiality, and value of its trade secrets and other confidential technical information. No trade secret,
know-how, or proprietary information material to the business (with respect to know-how or proprietary
information, that has not been publicly disclosed) of the Company or the Company Subsidiaries as presently conducted has been authorized
to be disclosed or, to the Knowledge of the Company, has been actually disclosed by the Company or any Company Subsidiary to any Person
other than pursuant to a non-disclosure agreement or other agreement specifying terms and conditions that are reasonable and customary
in connection with the relevant relationship for the disclosure and use of such Intellectual Property Rights or information.
(g) None
of the Company Owned IP or, to the Knowledge of the Company, Company Licensed IP, is subject to any pending or outstanding injunction,
directive, order, judgment or other disposition of dispute that adversely and materially restricts the use, transfer, registration or
licensing by the Company of any such Company IP, other than patent prosecution activities being conducted before a Governmental Entity
in the ordinary course of business.
(h) None
of the Company or any of its Subsidiaries has taken any action set forth on Section 3.16(h) of
the Company Disclosure Letter.
3.17 Data
Privacy and Information Security.
(a) At
all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, the Company and each Company Subsidiary have complied with all applicable (i) Privacy Laws, (ii) public-facing
policies, notices, and statements of the Company or the Company Subsidiaries, and (iii) Contracts binding upon the Company or any
Company Subsidiary, in the case of each of clauses (i) through (iii), related to privacy, security, or the Processing of Personal
Information (collectively, the “Company Privacy Requirements”).
(b) At
all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, the Company and each Company Subsidiary have implemented, maintained and complied with reasonably appropriate
technical, physical, and organizational measures and safeguards designed to protect Personal Information (including against Security Incidents).
At all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, neither the Company nor the Company Subsidiaries nor, to the Knowledge of the Company, any Person Processing
Personal Information on behalf of the Company in relation to such Processing of Personal Information has experienced a Security Incident
that required notification to another Person under applicable Company Privacy Requirements.
(c) Since
January 1, 2022, neither the Company nor the Company Subsidiaries nor, to the Knowledge of the Company, any Person Processing Personal
Information on behalf of the Company in relation to such Processing of Personal Information has received written notice, inquiry, request,
claim, complaint, correspondence or other communication from, or, to the Knowledge of the Company, been the subject of any investigation
or enforcement action by, any Person alleging a material violation of applicable Company Privacy Requirements.
3.18 Regulatory
Matters.
(a) The
Company and each of its Subsidiaries have all permits, licenses, registrations, authorizations, certificates, orders, approvals, franchises,
variances and other similar rights issued by or obtained from any Governmental Entities (collectively, “Permits”) required
to conduct its business as currently conducted, including all such Permits required by any Governmental Entity, except for such Permits
the absence of which would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken
as a whole (the “Company Permits”).
(b) The
Company Permits are in full force and effect, except for any failures to be in full force and effect that, individually or in the aggregate,
would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken as a whole. The
Company and each of its Subsidiaries is in compliance under such Company Permits, except for such failures to comply that, individually
or in the aggregate, would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken
as a whole.
(c) Except
for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the
Company and its Subsidiaries, taken as a whole, since January 1, 2022, the Company and each of its Subsidiaries: (i) is and
at all times has been in compliance, to the extent applicable, with all Healthcare Laws and with all Judgments and final guidance having
the effect of Law administered or issued by any Governmental Entity exercising authority applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or
disposal of any product tested, developed, promoted, marketed, manufactured or distributed by the Company and each of its Subsidiaries;
(ii) has not received any written notice or correspondence from any Governmental Entity alleging or asserting any noncompliance with
any Company Permits; (iii) has not received written notice that any Governmental Entity has taken or is intending to take action
to limit, suspend, modify or revoke any Company Permit; and, (iv) there is no Legal Proceeding pending or, to the Knowledge of the
Company, threatened in writing (including any prosecution, injunction, seizure, civil fine, suspension or recall), in each case, alleging
that such Governmental Entity is considering such action. The Company has not been required to make any written notices to any Governmental
Entity or Person under any Healthcare Law.
(d) To
the Knowledge of the Company, none of the Company nor its Subsidiaries, nor any of the Company’s or its Subsidiaries’ directors,
officers, employees, or contractors has (i) made an untrue statement of a material fact or fraudulent statement to the FDA or any
Governmental Entity, (ii) failed to disclose a material fact required to be disclosed to the FDA or any Governmental Entity, or (iii) committed
any other act, made any statement or failed to make any statement, that (in any such case), at the time such disclosure or statement was
made or failure to make occurred, establishes a reasonable basis for the FDA to invoke its Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities Final Policy. As of the date of this Agreement, none of the Company nor its Subsidiaries, nor any of the
Company’s or its Subsidiaries’ directors, officers, employees, or, to the Knowledge of the Company, contractors are the subject
of any pending or threatened investigation by the FDA pursuant to its Fraud, Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities Final Policy.
(e) Except
for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the
Company and its Subsidiaries, taken as a whole, (i) the studies, tests and preclinical and clinical trials, if any, conducted by
or on behalf of the Company or any of its Subsidiaries are being conducted or have been conducted in accordance with experimental protocols,
procedures and controls pursuant to accepted professional and scientific standards for products or product candidates comparable to those
being developed by the Company or its Subsidiaries and all applicable laws and regulations and (ii) since January 1, 2022, neither
the Company nor any of its Subsidiaries has received any written notices or correspondence from a Governmental Entity or any institutional
review board or comparable authority requiring the termination, clinical hold or partial clinical hold, suspension or material modification
of any investigational new drug application, studies, tests or preclinical or clinical trials conducted by or on behalf of the Company
or any of its Subsidiaries.
(f) None
of the Company, the Company Subsidiaries or any of their respective officers or directors or, to the Knowledge of the Company, employees
or agents, have been debarred, suspended, or excluded from participation in any Federal Healthcare Program, subject to sanction pursuant
to 42 U.S.C. §1320a-7a or §1320a-8, or engaged in any conduct that could reasonably result in debarment, suspension,
or exclusion from participation in any Federal Healthcare Program.
3.19 Certain
Business Practices. Since January 1, 2022, none of Company, any Company Subsidiaries or, to the Knowledge of the Company, any
officer, director, agent, employee or other Person acting on their behalf, has, directly or indirectly, (a) taken any action that
would cause them to be in violation of any provision of the FCPA or other Anti-Corruption and Anti-Bribery Laws in other countries in
which the Company and its Subsidiaries conduct business, (b) used any corporate funds for unlawful contributions, gifts, entertainment
or other unlawful expenses relating to political activity, (c) made, offered or authorized any unlawful payment, or other thing of
value, to foreign or domestic government officials or employees or (d) made, offered or authorized any unlawful bribe, rebate, payoff,
influence payment, kickback or similar unlawful payment in violation of the FCPA or other Anti-Corruption and Anti-Bribery Laws.
3.20 Insurance;
Properties.
(a) Except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each
insurance policy of the Company or any Company Subsidiary is in full force and effect and was in full force and effect during the periods
of time such insurance policy are purposed to be in effect, (ii) neither the Company nor any of the Company Subsidiaries is (with
our without notice or lapse of time, or both) in breach or default (including any such breach or default with respect to the payment of
premiums or the giving of notice) under any such policy and (iii) there is no claim by the Company or any of the Company Subsidiaries
pending under any such policies that to the Knowledge of the Company, has been denied or disputed by the insurer other than denials and
disputes in the ordinary course of business consistent with past practice.
(b) Neither
the Company nor any of the Company Subsidiaries owns any real property or any interest in real property.
(c) Section 3.20(c) of
the Company Disclosure Letter sets forth a complete list, as of the date hereof, of all written Company Leases (or a written description
of any oral Company Leases) for all of the parcels of Leased Company Property. The Company and each of the Company Subsidiaries holds
valid and existing leaseholder interest in the Leased Company Property and has complied in all material respects with the terms of all
leases, subleases and licenses entitling it to the use or occupancy of real property owned by third parties where the Company or any of
its Subsidiaries holds an interest as tenant, subtenant, licensee or other similar party and such real property is material to the business
of the Company and its Subsidiaries, taken as a whole (the “Company Leases”), and all of the Company Leases are valid
and in full force and effect, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected
to have a Company Material Adverse Effect. To the Knowledge of the Company, there are no leases, subleases, licenses, concessions or other
Contracts granting to any party or parties (other than the Company or a Company Subsidiary) the right of use or occupancy of any material
portion of any premises subject to a Company Lease.
3.21 Joint
Proxy Statement/Prospectus. None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference
in: (a) the Form S-4 will, at the time the Form S-4 or any amendment or supplement thereto is declared effective under
the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; or (b) the Joint Proxy Statement/Prospectus will, at the date it is first
mailed to each of the Company’s stockholders and Parent’s stockholders or at the time of the Company Stockholders Meeting
or the Parent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
The Joint Proxy Statement/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act, except
that no representation is made by the Company with respect to statements made or incorporated by reference therein based on information
supplied by Parent for inclusion or incorporation by reference therein.
3.22 Brokers
and Finders. No broker, investment banker, financial advisor or other Person, other than Guggenheim Securities, LLC (the “Company
Financial Advisor”), the fees and expenses of which will be paid by the Company or the Company Subsidiaries, is entitled to
any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Company. Prior to the execution of this Agreement, the Company has furnished
to Parent true and complete copies of all agreements between the Company or its Subsidiaries and the Company Financial Advisor relating
to the transactions contemplated hereby.
3.23 Opinion
of Financial Advisor. As of the date of this Agreement, the Company Board has received the opinion of the Company Financial Advisor,
as of the date of such opinion and based upon and subject to the various assumptions, limitations, qualifications and other conditions
contained therein, the Exchange Ratio provided for in the Merger is fair, from a financial point of view, to holders of Shares. The Company
shall, promptly following the execution of this Agreement by all Parties, furnish a copy of each such written opinion to Parent solely
for informational purposes (it being agreed that none of Parent or Merger Sub, nor any of their respective affiliates or Representatives,
shall have the right to rely on such opinion).
Article IV
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Except as set forth
(i) in the Parent SEC Documents filed and publicly available after July 1, 2024 but prior to the date of this Agreement
(the “Filed Parent SEC Documents”) (excluding any disclosures in the Filed Parent SEC Documents in any risk factors
section, any forward-looking disclosure in any section related to forward-looking statements and other disclosures that are predictive
or forward-looking in nature, other than historical facts included therein) or (ii) in the disclosure letter delivered by Parent
to the Company at or before the execution and delivery by Parent of this Agreement (the “Parent Disclosure Letter”),
Parent represents and warrants to the Company as follows:
4.1 Organization,
Good Standing and Qualification.
(a) Each
of Parent, Merger Sub and each of Parent’s other Subsidiaries (such Subsidiaries of Parent, the “Parent Subsidiaries”)
is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good
standing, to the extent such jurisdiction recognizes such concept), except, in the case of the Parent Subsidiaries, where the failure
to be so organized, existing or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to
have a Parent Material Adverse Effect. Each of Parent, Merger Sub and the Parent Subsidiaries is duly qualified or licensed to do business
in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary,
other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would
not reasonably be expected to have a Parent Material Adverse Effect.
(b) Parent
has delivered or made available to the Company prior to execution of this Agreement, true and complete copies of the amended and restated
certificate of incorporation of Parent, dated as of July 1, 2024 (the “Parent Charter”), the amended and restated
bylaws of Parent, dated as of July 1, 2024 (the “Parent Bylaws”), the certificates of incorporation of Merger
Sub and the bylaws of Merger Sub, in each case, as in effect as of the date of this Agreement.
4.2 Parent
Subsidiaries.
(a) Section 4.2(a) of
the Parent Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of each of the Parent Subsidiaries.
(b) All
the outstanding shares of capital stock or voting securities of, or other equity interests in, each of the Parent Subsidiaries and any
shares of capital stock, voting securities or equity interests in any other entity which interests are owned by Parent or any Parent Subsidiary
have been validly issued and are owned by Parent, by another Parent Subsidiary or by Parent and another Parent Subsidiary, free and clear
of all material Liens, and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of
such capital stock, voting securities or other equity interests), except for restrictions imposed by applicable securities laws.
(c) Except
for the capital stock and voting securities of, and other equity interests in, the Parent Subsidiaries, neither Parent nor any Parent
Subsidiary owns, directly or indirectly, any capital stock or voting securities of, or other equity interests in, or any interest convertible
into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, any firm, corporation,
partnership, company, limited liability company, trust, joint venture, association or other entity other than ordinary course investments
in publicly traded securities constituting one percent or less of a class of outstanding securities of any entity.
4.3 Capital
Structure.
(a) The
authorized capital stock of Parent consists of (i) 491,815,092 shares of voting common stock, par value $0.0001 per share (“Parent
Common Stock”), (ii) 7,184,908 shares of non-voting common stock, par value $0.0001 per share (“Parent Non-Voting
Common Stock”) and (iii) 50,000,000 shares of preferred stock, par value $0.0001 per share (the “Parent Preferred
Stock” and, together with the Parent Common Stock and the Parent Non-Voting Common Stock, the “Parent Capital Stock”).
At the close of business on January 31, 2025, (i) 47,222,419 shares of Parent Common Stock were issued and outstanding, (ii) 7,184,908
shares of Parent Non-Voting Common Stock were issued and outstanding, (iii) no shares of Parent Preferred Stock were issued and outstanding,
(iv) no shares of Parent Common Stock were held by Parent in its treasury, (v) 1,194,073 shares of Parent Common Stock
were reserved and available for issuance pursuant to the Parent’s 2024 Employee Stock Purchase Plan and (vi) 19,072,671 shares
of Parent Common Stock were reserved and available for issuance pursuant to the Parent Stock Plans, including 9,525,649 shares of
Parent Common Stock issuable upon the exercise of outstanding Parent Stock Options (whether or not vested and whether or not granted under
the Parent Stock Plans). Except as set forth in this Section 4.3(a), at the close of business on January 31, 2025, no
shares of capital stock or voting securities of, or other equity interests in, Parent were issued, reserved for issuance or outstanding.
From the close of business on January 31, 2025 to the date of this Agreement, there have been no issuances by Parent of shares of
capital stock or voting securities of, or other equity interests in, Parent other than the issuance of Parent Common Stock upon the exercise
of Parent Stock Options outstanding at the close of business on January 31, 2025 and in accordance with their terms in effect at
such time.
(b) All
outstanding shares of Parent Capital Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise, settlement
or vesting of Parent Stock Options will be, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued
in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under
any provision of the DGCL, the Parent Charter, the Parent Bylaws, any Contract to which Parent is a party or otherwise bound, or any applicable
Law.
(c) The
shares of Parent Common Stock constituting the Merger Consideration will be, when issued, duly authorized, validly issued, fully paid
and nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive
right, subscription right or any similar right under any provision of the DGCL, the Parent Charter, the Parent Bylaws or any Contract
to which Parent is a party or otherwise bound.
(d) Except
as set forth in this Section 4.3 or pursuant to the terms of this Agreement, there are no issued, reserved for issuance or
outstanding, and there are no outstanding obligations of Parent or any Parent Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, (x) any capital stock of Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary
convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, Parent
or any Parent Subsidiary, (y) any warrants, calls, options or other rights to acquire from Parent or any Parent Subsidiary, or any
other obligation of Parent or any Parent Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock
or voting securities of, or other equity interests in, Parent or any Parent Subsidiary or (z) any rights issued by or other obligations
of Parent or any Parent Subsidiary that are linked in any way to the price of any class of Parent Capital Stock or any shares of capital
stock of any Parent Subsidiary, the value of Parent, any Parent Subsidiary or any part of Parent or any Parent Subsidiary or any dividends
or other distributions declared or paid on any shares of capital stock of Parent or any Parent Subsidiary. Other than (1) the acquisition
by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock
Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy Tax obligations
with respect to awards granted pursuant to the Parent Stock Plans and (3) the acquisition by Parent of awards granted pursuant to
the Parent Stock Plans in connection with the forfeiture of such awards, there are not any outstanding obligations of Parent or any of
the Parent Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests
of Parent or any Parent Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clauses (x) through (z) of
the immediately preceding sentence. There are no bonds, debentures, notes or other Indebtedness of Parent having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. Other
than as contemplated by this Agreement, neither Parent nor any of the Parent Subsidiaries nor, to the Knowledge of Parent, any of Parent’s
stockholders, is a party to (i) any voting Contract with respect to the voting of any capital stock or voting securities of, or other
equity interests in, Parent or (ii) any Contract pursuant to which any Person is entitled to elect, designate or nominate any director
of Parent or any of the Parent Subsidiaries.
(e) No
Parent Subsidiary owns any shares of Parent Common Stock.
(f) Neither
Parent nor any Parent Subsidiary or associates (as defined in Section 203 of the DGCL) owns, or has owned at any time within the
past three (3) years, any Shares.
4.4 Corporate
Authority and Approval.
(a) Each
of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and, subject, with respect
to Parent, to receipt of the Parent Stockholder Approval and, with respect to Merger Sub, the adoption of this Agreement by Parent in
its capacity as sole stockholder of Merger Sub, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
On or prior to the date of this Agreement, the Parent Special Committee has adopted resolutions, by vote at a meeting duly called: (i) determining
that this Agreement and the transactions contemplated hereby, including the Merger, are advisable, fair to and in the best interests of
Parent and its stockholders, (ii) recommending to the Parent Board that it approve the Merger and the transactions contemplated hereby,
including the issuance of shares of Parent Common Stock pursuant to this Agreement (the “Parent Share Issuance”), and
(iii) recommending to the Parent Board that it submit, and recommending the approval of the Parent Share Issuance, to Parent’s
stockholders for approval at a duly held meeting of such stockholders for such purpose (the “Parent Stockholders Meeting”).
On or prior to the date of this Agreement, the Parent Board has adopted resolutions, by vote at a meeting duly called: (i) determining
that this Agreement and the transactions contemplated hereby are advisable, fair to and in the best interests of Parent and its stockholders,
(ii) approving the Merger and the transactions contemplated hereby, including the Parent Share Issuance, (iii) resolving to
submit the Parent Share Issuance to Parent’s stockholders for approval at the Parent Stockholder Meeting and (iv) recommending
that the stockholders of Parent approve the Parent Share Issuance in connection with the Merger. As of the date of this Agreement, such
resolutions have not been amended or withdrawn.
(b) Except
for the approval of the Parent Share Issuance by the affirmative vote of the holders of a majority of the outstanding shares of Parent
Common Stock present in person or by proxy and entitled to vote thereon, at the Parent Stockholders Meeting (such approval, the “Parent
Stockholder Approval”), no other corporate proceedings on the part of Parent are necessary to authorize, adopt, or approve,
as applicable, this Agreement or to consummate the transactions contemplated hereby (except for the filing of the appropriate merger documents
as required by the DGCL). Parent and Merger Sub have duly executed and delivered this Agreement and, assuming the due authorization, execution
and delivery by the Company, this Agreement constitutes its legal, valid and binding obligation, enforceable against Parent, in accordance
with its terms except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception.
(c) There
is no stockholder rights plan, “poison pill” antitakeover plan or similar device in effect to which Parent or any of Parent
Subsidiaries is subject, party or otherwise bound.
4.5 No
Conflicts; Consents.
(a) The
execution and delivery of this Agreement by Parent and Merger Sub, as applicable, does not, and the performance by Parent and Merger Sub,
as applicable, of their respective obligations hereunder and the consummation of the transactions contemplated hereby will not: (i) conflict
with, or result in any violation of any provision of, the Parent Charter, the Parent Bylaws or the comparable charter or organizational
documents of any Parent Subsidiary (assuming that the Parent Stockholder Approval is obtained), (ii) conflict with, or result in
any violation of or default (with or without notice or lapse of time, or both) under, give rise to a right of termination, cancellation
or acceleration of any obligation under, give rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital
stock under, result in any loss of a material benefit under, or result in the creation of any Lien (other than Permitted Liens) upon any
of the properties or assets of Parent or any Parent Subsidiary under, any provision of any Parent Material Contract or any material Parent
Permit or (iii) conflict with, or result in any violation of any provision of, subject to the filings and other matters referred
to in Section 4.5(b), any Judgment or Law, in each case, applicable to Parent or any Parent Subsidiary or their respective
properties or assets (assuming that the Parent Stockholder Approval is obtained), other than, in the case of clauses (ii) and
(iii), any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material
Adverse Effect and would not prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated
hereby.
(b) No
Consent of or from, or registration, declaration, notice or filing made to or with any Governmental Entity, is required to be obtained
or made by or with respect to Parent or any Parent Subsidiary in connection with the execution and delivery of this Agreement or its performance
of its obligations hereunder or the consummation of the transactions contemplated hereby, other than (i)(A) the filing with the SEC
of the Joint Proxy Statement/Prospectus in definitive form, (B) the filing with the SEC, and declaration of effectiveness under the
Securities Act, of the Form S-4, and (C) the filing with the SEC of such reports and other filings under, and such other compliance
with, the Exchange Act and the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby,
(ii) compliance with and filings under any applicable Antitrust Laws, (iii) receipt of the Parent Stockholder Approval, (iv) the
filing of the Certificate of Merger with the Secretary of State of the State of Delaware and the filing of appropriate documents with
the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business, (v) such Consents,
registrations, declarations, notices or filings as are required to be made or obtained under the securities or “blue sky”
laws of various states in connection with the issuance of the shares of Parent Common Stock to be issued as the Merger Consideration,
(vi) such filings with and approvals of Nasdaq as are required to permit the consummation of the Merger and the listing of the shares
of Parent Common Stock to be issued as the Merger Consideration and (vii) such other matters that, individually or in the aggregate,
have not had and would not reasonably be expected to have a Parent Material Adverse Effect and would not prevent or materially impede,
interfere with, hinder or delay the consummation of the transactions contemplated hereby.
(c) Parent
has determined in good faith that the aggregate fair market value of the non-exempt assets to be acquired, as defined in the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the “HSR Act”), of the Company does not exceed the size-of-transaction threshold
(as adjusted) in effect at the Closing. This determination is made solely for the purpose of determining the applicability of the HSR
Act to the transactions contemplated by this Agreement.
4.6 Parent
SEC Documents; Financial Statements.
(a) Parent
has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated
therein) required to be furnished or filed by Parent with the SEC since July 1, 2024 (such documents, together with any documents
filed with the SEC during such period by Parent on a voluntary basis on a Current Report on Form 8-K, being collectively referred
to as the “Parent SEC Documents”).
(b) Each
Parent SEC Document (i) at the time filed (or, if amended or superseded by a filing or amendment prior to the date of this agreement,
then at the time of such filing or amendment), complied as to form in all material respects with the requirements of SOX and the Exchange
Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such
Parent SEC Document and (ii) did not at the time it was filed (or if amended or superseded by a filing or amendment prior to the
date of this Agreement, then at the time of such filing or amendment) contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Each of the consolidated financial statements of Parent included in the Parent SEC Documents complied
at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, was prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto)
and fairly presented in all material respects the consolidated financial position of Parent and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited
statements, to normal year-end audit adjustments as permitted by GAAP and the applicable rules and regulations promulgated by the
SEC, which were not, or are not expected to be, material in amount or effect). As of the date hereof, there are no unresolved comments
issued by the staff of the SEC with respect to any of the Parent SEC Documents.
4.7 Internal
Controls and Procedures.
(a) Each
of the chief executive officer of Parent and the chief financial officer of Parent (or each former chief executive officer of Parent and
each former chief financial officer of Parent, as applicable) has made all applicable certifications required by Rule 13a-14 or 15d-14
under the Exchange Act and Sections 302 and 906 of SOX with respect to the Parent SEC Documents, and the statements contained in
such certifications are true and accurate. For purposes of this Agreement, “chief executive officer” and “chief financial
officer” shall have the meanings given to such terms in SOX. None of Parent or any of the Parent Subsidiaries has outstanding, or
has arranged any outstanding, “extensions of credit” to directors or executive officers within the meaning of Section 402
of SOX.
(b) Parent
maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of
the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with
the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition
of Parent’s properties or assets.
(c) Parent
is in compliance in all material respects with the applicable Nasdaq listing and corporate governance rules and requirements.
(d) Parent
maintains and has at all times since July 1, 2024, maintained “disclosure controls and procedures” (as defined in Rules 13a-15(e) and
15d-15(e) of the Exchange Act) designed to ensure that all information (both financial and non-financial) required to be disclosed
by Parent in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the periods
specified in the rules and forms of the SEC and that all such information required to be disclosed is accumulated and communicated
to the management of Parent to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief
financial officer of Parent to make the certifications required under the Exchange Act with respect to such reports.
(e) Neither
Parent nor any Parent Subsidiary is a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership
or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Parent and
any of the Parent Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or
limited purpose entity or Person, on the other hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of
Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material
transaction involving, or material liabilities of, Parent or any of the Parent Subsidiaries in Parent’s or such Parent Subsidiary’s
published financial statements.
4.8 Absence
of Certain Changes.
(a) Since
the date of the Parent Balance Sheet through the date of this Agreement, there has not been a Parent Material Adverse Effect.
(b) From
the date of the Parent Balance Sheet until the date of this Agreement, the business of Parent and its Subsidiaries, taken as a whole,
has been conducted in the ordinary course of business consistent with past practice and neither Parent nor any of the Parent Subsidiaries
have taken any actions that, if taken after the date hereof, would require the Company’s consent under Section 5.1(d) other
than Section 5.1(d)(iii) or Section 5.1(d)(vi).
4.9 Litigation
and Liabilities.
(a) There
is no, and since January 1, 2022, there has been no, Legal Proceeding pending or, to the Knowledge of Parent, threatened against
Parent or any of its Subsidiaries or any of their respective properties or assets that, individually or in the aggregate, has resulted
in or would reasonably be expected to result in a liability or obligation that is material to Parent and its Subsidiaries, taken as a
whole, and would not prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated hereby
There is no, and since January 1, 2022, there has been no, Judgment outstanding against or, to the Knowledge of Parent, investigation
by any Governmental Entity involving Parent or any of its Subsidiaries or any of their respective properties or assets that, individually
or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and would not prevent or materially
impede, interfere with, hinder or delay the consummation of the transactions contemplated hereby.
(b) Except
(i) as reflected or reserved against in Parent’s consolidated unaudited balance sheet as of September 30, 2024 (or the
notes thereto) (the “Parent Balance Sheet”) as included in the Parent SEC Documents, (ii) for liabilities and
obligations incurred since September 30, 2024 in the ordinary course of business and (iii) for liabilities and obligations incurred
as permitted by this Agreement, incurred in connection with the transactions contemplated hereby or that are otherwise Transaction Expenses,
neither Parent nor any Parent Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise)
that, individually or in the aggregate, have had or would reasonably be expected to have a Parent Material Adverse Effect. For purposes
of this Section 4.9(b), the term “liabilities” shall not include liabilities or obligations of Parent or any Parent
Subsidiary to perform under or comply with any applicable Law, Legal Proceeding, Judgment or Contract, but would include such liabilities
and obligations if there has been a default or failure to perform or comply by Parent or any Parent Subsidiary with any such liability
or obligation if such default or failure would, with the giving of notice or passage of time or both, reasonably be expected to result
in a monetary obligation or the imposition of injunctive or other equitable remedies.
4.10 Compliance
with Laws. Parent and the Parent Subsidiaries are, and since January 1, 2022 have been, in compliance with all applicable Laws
and Parent Permits, except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have
a Parent Material Adverse Effect and would not prevent or materially impede, interfere with, hinder or delay the consummation of the transactions
contemplated hereby. There is no, and since January 1, 2022, there has been no, action, demand or investigation by or before any
Governmental Entity pending or, to the Knowledge of Parent, threatened alleging that Parent or a Parent Subsidiary is not in compliance
with any applicable Law or Parent Permit or which challenges or questions the validity of any rights of the holder of any Parent Permit,
except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material
Adverse Effect and would not prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated
hereby.
4.11 Contracts.
(a) Except
for this Agreement, neither Parent nor any Parent Subsidiary is a party to any Contract required to be filed by Parent as a “material
contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (each, a “Filed Parent
Contract”) that has not been so filed.
(b) Other
than Filed Parent Contracts, Section 4.11(b) of the Parent Disclosure Letter sets forth, as of the date of this Agreement,
a true and complete list, and Parent has made available to Company true and complete copies, of the following Contracts (and Filed Parent
Contracts without any redactions) to which Parent or any Parent Subsidiary is a party or that bind assets of Parent or any Parent Subsidiary:
(i) each
Contract that obligates the Parent or any Subsidiary of the Parent to make any capital investment or capital expenditure in excess of
$500,000;
(ii) each
Contract to which the Parent or any of the Parent Subsidiaries is a party that:
(A) materially
restricts the ability of the Parent or the Parent Subsidiaries to compete in any business or with any Person in any geographical area
or would, to the Knowledge of Parent, restrict in any material respect the ability of Company or any of its Subsidiaries to compete in
any business or with any Person in any geographical area after the Effective Time,
(B) requires
the Parent or any Parent Subsidiary to conduct any business on a “most favored nations” basis with any third party,
(C) any
“take or pay,” minimum purchase or minimum volume commitment provisions,
(D) provides
for “exclusivity” or any similar requirement in favor of any third party, or
(E) contains
any other provisions materially restricting or purporting to materially restrict the ability of the Parent or any of its Subsidiaries
to sell, market, distribute, promote, manufacture, develop, commercialize, or test or research any product or product candidate, directly
or indirectly through third parties, or that would so limit or purport to limit Company or any of its Affiliates after the Effective Time;
(iii) each
Contract evidencing Indebtedness of the Parent or any of the Parent Subsidiaries, other than any such agreement between or among the Parent
and the wholly owned Parent Subsidiaries and other than accounts payable in the ordinary course of business;
(iv) any
Contract involving the settlement or compromise of any Legal Proceeding or threatened Legal Proceeding (or series of related Legal Proceedings)
which (A) involves either payments by the Parent or any of its Subsidiaries after the date hereof in excess of $500,000, or (B) imposes
any materially burdensome monitoring or reporting obligations to any other Person outside the ordinary course of business or any other
material restrictions or liabilities on the Parent or any Parent Subsidiary (or, following the Closing, on Company or any Company Subsidiary);
(v) each
Parent Lease;
(vi) each
partnership, joint venture or similar Contract to which the Parent or any of the Parent Subsidiaries is a party;
(vii) each
Contract with any Governmental Entity;
(viii) any
Contract pursuant to which Parent or any of the Parent Subsidiaries has continuing guarantee, “earn-out” or other contingent
payment obligations, in each case that would reasonably be expected to result in payments in excess of $3,000,000;
(ix) any
Contract that is a license agreement (including all regional licensing transactions), covenant not to sue agreement or co-existence agreement
or similar agreement, each of the foregoing that is material to the business of the Parent and its Subsidiaries, taken as a whole, to
which the Parent or any of the Parent Subsidiaries is a party and licenses in Intellectual Property Rights owned by a third party or licenses
out any Parent IP or agrees not to assert or enforce Parent Owned IP, including each Parent In-bound License (but excluding any Standard
Contract), and each Parent Out-bound License (but excluding any Standard Contract);
(x) each
Contract (A) pursuant to which Parent or any of its Subsidiaries may be required after the date of this Agreement to pay milestones,
royalties or other contingent payments based on the results or outcome of any research, testing or development; regulatory filings or
approval; sale; distribution; commercial manufacture or other similar occurrences, developments, activities or events, or (B) under
which Parent or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase,
option to license, or any other similar rights with respect to any product or product candidate of Parent or any Intellectual Property
Rights owned or purported to be owned by or licensed to Parent or any of its Subsidiaries (or, following the Closing, with respect to
any product or product candidate of Company or any Intellectual Property Rights of Company or any of its Subsidiaries); and
(xi) each
Contract relating to the disposition or acquisition by the Parent or any of the Parent Subsidiaries of any material business or any material
amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to
which there is no ongoing material liability or material obligation of the Parent or any Parent Subsidiaries).
Each Contract of the type described
in this Section 4.11(b) and each Filed Parent Contract is referred to herein as a “Parent Material Contract”.
(c) Except
for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse
Effect, each Parent Material Contract (including, for purposes of Section 6.3(a), any Contract entered into after the date
of this Agreement that would have been a Parent Material Contract if such Contract existed on the date of this Agreement) (i) is
a valid, binding and legally enforceable obligation of the Parent or one of the Parent Subsidiaries, as the case may be, and, to the Knowledge
of Parent, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception and
(ii) is in full force and effect. None of Parent or any of the Parent Subsidiaries is (with or without notice or lapse of time, or
both) in material breach or default under any such Parent Material Contract (including, for purposes of Section 6.3(a), any
Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Contract existed on the
date of this Agreement) and, to the Knowledge of Parent, no other party to any such Parent Material Contract is (with or without notice
or lapse of time, or both) in material breach or default thereunder.
4.12 Benefits
Matters; ERISA Compliance.
(a) Except
as would not have, individually or in the aggregate, a Parent Material Adverse Effect, all Parent Plans are, and have been operated and
administered, in compliance with their terms and applicable Laws (including, if applicable, ERISA and the Code) in all material respects.
Each Parent Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the
Code has been operated and maintained in all material respects in compliance with Section 409A of the Code and applicable guidance
thereunder and no payment to be made under any Parent Plan is, or to the Knowledge of Parent, will be, subject to the penalties of Section 409A(a)(1) of
the Code. Each Parent Option has been granted with an exercise price equal to fair market value on the date of grant (or repricing, as
the case may be) and is not subject to taxation under Section 409A of the Code. Parent does not have any obligation to gross up or
otherwise reimburse any person for any tax incurred by such person pursuant to Section 409A, Section 280G or Section 4999
of the Code.
(b) Each
Parent Plan that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter
or opinion letter from the IRS and, to the Knowledge of Parent, circumstances do not exist that are likely to result in the loss of the
qualification of such plan under Section 401(a) of the Code.
(c) There
are no pending or, to the Knowledge of Parent or any Parent Subsidiary, threatened Legal Proceedings relating to the Parent Plans or any
fiduciary or service provider thereof, and, to the Knowledge of Parent, there is no reasonable basis for any such Legal Proceeding.
4.13 Labor
Matters.
(a) Except
as would not be, individually or in the aggregate, material to Parent and its Subsidiaries, taken as a whole, Parent and the Parent Subsidiaries
are, and since January 1, 2022 have been, in compliance in all material respects with all applicable Laws related to labor and employment,
including those pertaining to payment of wages and other compensation, overtime, meal and rest break requirements, classification of employees
as exempt or non-exempt and classification of workers as employees or independent contractors, hours of work, leaves of absence, equal
opportunity, discrimination, harassment, immigration, occupational health and safety, workers’ compensation, background checks,
hiring, pre-employment tests, affirmative action, equal pay, restrictive covenants and the payment of social security and other Taxes.
There are no, and since January 1, 2022, there have not been any, Legal Proceedings or complaints related to labor or employment
matters (including the matters listed in the foregoing sentence), including any such Legal Proceedings or complaints threatened or pending
before the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the U.S. Occupational
Health and Safety Administration or any other similar Governmental Entity, against or involving Parent or any Parent Subsidiary or pertaining
to any employee, independent contractor or consultant of Parent or any Parent Subsidiary. Parent has withheld and paid to the appropriate
Governmental Entity or is holding for payment not yet due to such Governmental Entity all amounts required to be withheld from all payments
to all current and former Parent Associates and is not liable for any arrears of wages, Taxes, penalties or other sums for failure to
comply with any of the foregoing.
(b) Parent
and its Subsidiaries are not, and have never been, party to any collective bargaining or other Contract with any labor union or organization.
No labor organization or group of employees of Parent or any Parent Subsidiary has made a demand for recognition or certification, and
to the Knowledge of Parent, there are no representation or certification proceedings or petitions seeking a representation proceeding
presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal
or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations, grievances, or other labor
disputes pending or, to the Knowledge of Parent, threatened against or involving Parent or any Parent Subsidiary.
(c) Except
as would not be, individually or in the aggregate, material to Parent and its Subsidiaries, taken as a whole, Parent is in full compliance
with the WARN Act, and Parent has never engaged in any redundancies, reductions in force, mass layoffs, plant closings or other employment
action that required, or reasonably could have required, advance notice under the WARN Act. No Parent employees have experienced an “employment
loss,” as defined in the WARN Act, in the past 90 days.
(d) As
of the date of this Agreement: (i) no claims, allegations, or reports of discrimination, retaliation, harassment, or sexual harassment
have been made to Parent by or against any current or former Parent Associate at the level of senior director or above and (ii) Parent
has never conducted any investigations or entered into any settlement agreements with respect to any such claims, allegations, or reports.
4.14 Taxes.
(a) Except
as would not have or reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect:
(i) Parent
and the Parent Subsidiaries have filed all Tax Returns that are or have been required to be filed by them, and all such Tax Returns were
true, correct and complete.
(ii) All
Taxes required to be paid by Parent or any Parent Subsidiary have been timely paid (whether or not shown or required to be shown on any
Tax Return).
(iii) Parent
has made adequate provision in the Parent Balance Sheet for all accrued Taxes of Parent and the Parent Subsidiaries not yet due, and Parent
and the Parent Subsidiaries have not incurred any liability for Taxes other than in the ordinary course of business since the date of
the Parent Balance Sheet.
(iv) Parent
and the Parent Subsidiaries have withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(v) No
deficiency for any Tax has been proposed or assessed by a Governmental Entity in writing against Parent or any Parent Subsidiary which
deficiency has not been paid, settled, or withdrawn.
(vi) There
are no Legal Proceedings in respect of Taxes by a Governmental Entity pending or threatened in writing with respect to Parent or any Parent
Subsidiary.
(b) There
are no Liens for Taxes (other than Permitted Liens) upon any of the assets of Parent or any Parent Subsidiary.
(c) Neither
Parent nor any Parent Subsidiary is a resident for any income Tax purpose in any country (other than the country in which it is organized)
or subject to income tax therein by virtue of having a permanent establishment (within the meaning of an applicable Tax treaty) or fixed
place of business in that country. In the last three (3) years, no written claim has been made in writing by any Governmental Entity
in a jurisdiction where Parent or any Parent Subsidiary does not currently file Tax Returns of a certain type or pay Taxes of a certain
type that Parent or such Parent Subsidiary is required to file Tax Returns or pay Taxes of such type that has not since been resolved.
(d) Neither
Parent nor any Parent Subsidiary has waived any statute of limitations in respect of Taxes or agreed to (or requested) any extension of
time with respect to a Tax assessment or deficiency, in each case that is currently in effect (or would become effective if such request
were granted), other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business.
(e) Neither
Parent nor any Parent Subsidiary is a party to or is bound by any material Tax sharing, allocation or indemnification agreement or arrangement
(other than such agreements or arrangements (i) exclusively between or among Parent and any Parent Subsidiary or (ii) with third
parties made in the ordinary course of business, the principal purpose of which is not Tax).
(f) Neither
Parent nor any Parent Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504
of the Code or a group filing Tax Returns on a consolidated, affiliated, combined, unitary or similar basis other than an affiliated group
of which Parent is the common parent or (ii) has any liability for the Taxes of any Person (other than Parent or any Parent Subsidiary)
under Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of U.S. state, local or non-U.S. Tax Law),
as a transferee or successor, or otherwise by operation of Law.
(g) Within
the past two (2) years, neither Parent nor any Parent Subsidiary has been a “distributing corporation” or “controlled
corporation” in a transaction intended to qualify under Section 355 of the Code.
(h) Neither
Parent nor any Parent Subsidiary has ever participated in a “listed transaction” within the meaning of Treasury Regulations
Section 1.6011-4(b)(2).
(i) Except
as would not have or reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, all transactions
(including intragroup transactions) between Parent and the Parent Subsidiaries have been conducted in compliance with the applicable transfer
pricing laws in force in the relevant tax years (including, for the avoidance of doubt, Section 482 of the Code (and any corresponding
or similar provision of state, local, or non-U.S. Law)).
(j) Neither
Parent nor any Parent Subsidiary will be required to include any material item of income in, or exclude any material item of deduction
from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any: (i) change
in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481 of the Code (or any corresponding
or similar provision of U.S. state, local or non-U.S. income Tax Law) made prior to the Closing; (ii) “closing agreement”
as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. income Tax Law)
executed prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing; or (iv) intercompany
transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or
similar provision of U.S. state, local or non-U.S. Tax Law) entered into or created prior to the Closing.
(k) Following
the Merger, Parent intends, directly or through Subsidiaries, to continue the “historic business” of the Company or to use
a “significant portion” of the “historic business assets” of the Company in a business (within the meaning of
Treasury Regulations Section 1.368-1(d)).
(l) Parent
has not taken any action, nor to the Knowledge of Parent, are there any facts or circumstances, that would reasonably be expected to prevent
the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
4.15 Intellectual
Property.
(a) For
each item of material Registered IP within the Parent Owned IP (“Parent Owned Registered
IP”), and each item of material Registered IP within the Parent Licensed IP (“Parent
Licensed Registered IP” and, collectively with Parent Owned Registered IP, the “Parent Registered IP”), Section 4.15(a) of
the Parent Disclosure Letter identifies (i) the name of the applicant/registrant, (ii) the
jurisdiction of application/registration, (iii) the application, patent or registration number and (iv) any other co-owners.
To the Knowledge of Parent, each of the patents and
patent applications included in the Parent Owned Registered IP properly identifies by name each and every inventor of the inventions claimed
therein as determined in accordance with applicable Laws of the United States. As of the date of this Agreement, no interference, opposition,
reissue, reexamination or other proceeding of any nature (other than patent prosecution activities being conducted before a Governmental
Entity in the ordinary course of business) is pending or, to the Knowledge of Parent, has been threatened in writing, in which the scope,
validity, enforceability or ownership of any Parent Registered IP listed on Section 4.15(a) of the Parent Disclosure
Letter is being or has been contested or challenged.
(b) Parent
owns all right, title and interest in and to all material Parent Owned IP (other than as disclosed on Section 4.15(a) of
the Parent Disclosure Letter), free and clear of all Liens other than Permitted Liens and any Lien
caused or created by any action or failure to act by any Person other than Parent or any Parent Subsidiary, and, to the Knowledge of Parent,
has the right, pursuant to valid agreements to use all other material Intellectual Property
Rights used to conduct the business of Parent and the Parent Subsidiaries as conducted as of the date of this Agreement; provided,
however, that the foregoing shall not be construed as a representation or warranty with respect to infringement of the patent rights
of any Person. Parent has executed valid and enforceable written agreements with each of its current
and former Parent Associates and any other Persons who were or are, as applicable, engaged in creating or developing any material Parent
Owned IP, pursuant to which each such Person has: (i) agreed to hold all trade secrets and confidential information of Parent in
confidence both during and after (subject to the terms of the applicable agreement) such Person’s employment or retention, as applicable;
and (ii) presently assigned to Parent all of such Person’s rights, title and interest in and to all material Intellectual Property
Rights, created or developed for Parent or any Parent Subsidiary in the course of such Person’s employment or retention thereby.
To the Knowledge of Parent, no party thereto is in default or breach of any such agreements.
(c) To
the Knowledge of Parent, no funding, facilities or personnel of any Governmental Entity or any university, college, research institute
or other educational institution is being or was used in the creation of material Parent Owned IP or was used in the creation of any Parent
Licensed IP, except for any such funding or use of facilities or personnel that does not result in such Governmental Entity or institution
obtaining ownership rights to such material Parent Owned IP or the right to receive royalties for the practice of such material Parent
Owned IP.
(d) Section 4.15(d) of
the Parent Disclosure Letter sets forth each license agreement pursuant to which Parent (i) is granted a license under any Parent
Licensed IP or other material Intellectual Property Rights owned by any third party that is used in the conduct of the business
of Parent and the Parent Subsidiaries as conducted as of the date of this Agreement (each, a “Parent
In-bound License”), other than any Standard Contract, or (ii) grants to any third party a license or sublicense
under any material Parent IP (each, a “Parent Out-bound License”), other than any Standard Contract.
(e) To
the Knowledge of Parent: (i) the operation of the business of Parent and the Parent Subsidiaries as currently conducted does not
infringe and has not infringed any valid and enforceable Registered IP owned by any third party or misappropriate or otherwise violate
any other Intellectual Property Rights owned by any third party; and (ii) no third party is infringing, misappropriating or otherwise
violating any material Parent IP. As of the date of this Agreement, no Legal Proceeding is pending (or, to the Knowledge of Parent, has
been threatened in writing) (A) against Parent alleging that the operation of the business of Parent and the Parent Subsidiaries
infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of any third party or (B) by
Parent that any third party has infringed, misappropriated or otherwise violated any of the Parent
IP. Since January 1, 2022 and, to the Knowledge of Parent, prior to such date, Parent has not received any written notice or other
written communication alleging that the operation of the business of Parent and the Parent Subsidiaries infringes or constitutes the misappropriation
or other violation of any Intellectual Property Rights of any third party.
(f) Parent
has maintained commercially reasonable security and other measures, including measures against unauthorized disclosure, designed to protect
the secrecy, confidentiality, and value of its trade secrets and other confidential technical information. No trade secret, know-how,
or proprietary information material to the business (with respect to know-how or proprietary information, that has not been publicly disclosed)
of Parent or the Parent Subsidiaries as presently conducted has been authorized to be disclosed or, to the Knowledge of Parent, has been
actually disclosed by Parent or any Parent Subsidiary to any Person other than pursuant to a non-disclosure agreement or other agreement
specifying terms and conditions that are reasonable and customary in connection with the relevant relationship for the disclosure and
use of such Intellectual Property Rights or information.
(g) None
of the Parent Owned IP or, to the Knowledge of Parent, Parent Licensed IP, is subject to any pending or outstanding injunction, directive,
order, judgment or other disposition of dispute that adversely and materially restricts the use, transfer, registration or licensing by
Parent of any such Parent IP, other than patent prosecution activities being conducted before a Governmental Entity in the ordinary course
of business.
4.16 Data
Privacy and Information Security.
(a) At
all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Parent Material Adverse Effect, Parent and each Parent Subsidiary have complied with all applicable (i) Privacy Laws, (ii) public-facing
policies, notices, and statements of Parent or the Parent Subsidiaries and (iii) Contracts binding upon Parent or any Parent Subsidiary,
in the case of each of clauses (i) through (iii), related to privacy, security, or the Processing of Personal Information (collectively,
the “Parent Privacy Requirements”).
(b) At
all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Parent Material Adverse Effect, Parent and each Parent Subsidiary have implemented, maintained and complied with reasonably appropriate
technical, physical, and organizational measures and safeguards designed to protect Personal Information (including against Security Incidents).
At all times since January 1, 2022, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Parent Material Adverse Effect, neither Parent nor the Parent Subsidiaries nor, to the Knowledge of Parent, any Person Processing Personal
Information on behalf of Parent in relation to such Processing of Personal Information has experienced a Security Incident that required
notification to another Person under applicable Parent Privacy Requirements.
(c) Since
January 1, 2022, neither Parent nor the Parent Subsidiaries nor, to the Knowledge of Parent, any Person Processing Personal Information
on behalf of Parent in relation to such Processing of Personal Information has received written notice, inquiry, request, claim, complaint,
correspondence or other communication from, or, to the Knowledge of Parent, been the subject of any investigation or enforcement action
by, any Person alleging a material violation of applicable Parent Privacy Requirements.
4.17 Regulatory
Matters.
(a) Parent
and each of its Subsidiaries have all Permits required to conduct its business as currently conducted, including all such Permits required
by any Governmental Entity, except for such Permits the absence of which would not reasonably be expected to result in a liability that
is material to Parent and its Subsidiaries, taken as a whole (the “Parent Permits”).
(b) The
Parent Permits are in full force and effect, except for any failures to be in full force and effect that, individually or in the aggregate,
would not reasonably be expected to result in a liability that is material to Parent and its Subsidiaries, taken as a whole. Parent and
each of its Subsidiaries is in compliance under such Parent Permits, except for such failures to comply that, individually or in the aggregate,
would not reasonably be expected to result in a liability that is material to Parent and its Subsidiaries, taken as a whole.
(c) Except
for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to Parent
and its Subsidiaries, taken as a whole, since January 1, 2022, Parent and each of its Subsidiaries: (i) is and at all times
has been in compliance, to the extent applicable, with all Healthcare Laws and with all Judgments and final guidance having the effect
of Law administered or issued by any Governmental Entity exercising authority applicable to the ownership, testing, development, manufacture,
packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of
any product tested, developed, promoted, marketed, manufactured or distributed by Parent and each of its Subsidiaries; (ii) has not
received any written notice or correspondence from any Governmental Entity alleging or asserting any noncompliance with any Parent Permits;
(iii) has not received written notice that any Governmental Entity has taken or is intending to take action to limit, suspend, modify
or revoke any Parent Permit; and (iv) there is no Legal Proceeding pending or, to the Knowledge of Parent, threatened in writing
(including any prosecution, injunction, seizure, civil fine, suspension or recall), in each case alleging that such Governmental Entity
is considering such action. Neither Parent nor any of its Subsidiaries has been required to make any written notices to any Governmental
Entity or Person under any Healthcare Law.
(d) To
the Knowledge of Parent, none of Parent nor its Subsidiaries, nor any of Parent’s or its Subsidiaries’ directors, officers,
employees, or contractors has (i) made an untrue statement of a material fact or fraudulent statement to the FDA or any Governmental
Entity, (ii) failed to disclose a material fact required to be disclosed to the FDA or any Governmental Entity, or (iii) committed
any other act, made any statement or failed to make any statement, that (in any such case), at the time such disclosure or statement was
made or failure to make occurred, establishes a reasonable basis for the FDA to invoke its Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities Final Policy. As of the date of this Agreement, none of Parent nor its Subsidiaries, nor any of Parent’s
or its Subsidiaries’ directors, officers, employees, or, to the Knowledge of Parent, contractors, are the subject of any pending
or threatened investigation by the FDA pursuant to its Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities Final
Policy.
(e) Except
for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to Parent
and its Subsidiaries, taken as a whole, (i) the studies, tests and preclinical and clinical trials, if any, conducted by or on behalf
of Parent or any of its Subsidiaries are being conducted or have been conducted in accordance with experimental protocols, procedures
and controls pursuant to accepted professional and scientific standards for products or product candidates comparable to those being developed
by Parent or its Subsidiaries and all applicable laws and regulations and (ii) since January 1, 2022, neither Parent nor any
of its Subsidiaries has received any written notices or correspondence from a Governmental Entity or any institutional review board or
comparable authority requiring the termination, clinical hold or partial clinical hold, suspension or material modification of any investigational
new drug application, studies, tests or preclinical or clinical trials conducted by or on behalf of Parent or any of its Subsidiaries.
(f) None
of Parent, the Parent Subsidiaries or any of their respective officers or directors or, to the Knowledge of Parent, employees or agents,
have been debarred, suspended, or excluded from participation in any Federal Healthcare Program, subject to sanction pursuant to 42 U.S.C. §1320a-7a
or §1320a-8, or engaged in any conduct that could reasonably result in debarment, suspension, or exclusion from participation in
any Federal Healthcare Program.
4.18 Certain
Business Practices. Since January 1, 2022, none of Parent, any Parent Subsidiaries or, to the Knowledge of Parent, any officer,
director, agent, employee or other Person acting on their behalf, has, directly or indirectly, (a) taken any action that would cause
them to be in violation of any provision of the FCPA or other Anti-Corruption and Anti-Bribery Laws in other countries in which Parent
and its Subsidiaries conduct business, (b) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, (c) made, offered or authorized any unlawful payment, or other thing of value, to foreign
or domestic government officials or employees or (d) made, offered or authorized any unlawful bribe, rebate, payoff, influence payment,
kickback or similar unlawful payment in violation of the FCPA or other Anti-Corruption and Anti-Bribery Laws.
4.19 Valid
Issuance. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement,
be validly issued, fully paid and nonassessable.
4.20 Insurance;
Properties.
(a) Except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) each
insurance policy of Parent or any Parent Subsidiary is in full force and effect and was in full force and effect during the periods of
time such insurance policy are purposed to be in effect, (ii) neither Parent nor any of the Parent Subsidiaries is (with our without
notice or lapse of time, or both) in breach or default (including any such breach or default with respect to the payment of premiums or
the giving of notice) under any such policy and (iii) there is no claim by Parent or any of the Parent Subsidiaries pending under
any such policies that to the Knowledge of Parent, has been denied or disputed by the insurer other than denials and disputes in the ordinary
course of business consistent with past practice.
(b) Neither
Parent nor any of the Parent Subsidiaries owns any real property or any interest in real property.
(c) Section 4.20(c) of
the Parent Disclosure Letter sets forth a complete list, as of the date hereof, of all written Parent Leases (or a written description
of any oral Company Leases) for all of the parcels of Leased Parent Property. Parent and each of the Parent Subsidiaries holds valid and
existing leaseholder interest in the Leased Parent Property and has complied in all material respects with the terms of all leases, subleases
and licenses entitling it to the use or occupancy of real property owned by third parties where Parent or any of its Subsidiaries holds
an interest as tenant, subtenant, licensee or other similar party and such real property is material to the business of Parent and its
Subsidiaries, taken as a whole (the “Parent Leases”), and all of the Parent Leases are valid and in full force and
effect, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent
Material Adverse Effect. To the Knowledge of Parent, there are no leases, subleases, licenses, concessions or other Contracts granting
to any party or parties (other than Parent or a Parent Subsidiary) the right of use or occupancy of any material portion of any premises
subject to a Parent Lease.
4.21 Ownership
and Operations of Merger Sub . Parent directly owns all of the outstanding shares of common stock of Merger Sub. Merger Sub was formed
solely for the purpose of engaging in the Merger, has engaged in no other business activities, and has incurred no liabilities or obligations
other than as contemplated hereby or as otherwise required or incidental to negotiate, execute, deliver and effect the transactions contemplated
by this Agreement. The authorized shares of common stock of Merger Sub consist of 1,000 shares, all of which are validly issued and outstanding.
All of the issued and outstanding shares of Merger Sub are directly owned by Parent, free and clear of any Liens other than Liens imposed
under any federal or state securities Laws.
4.22 Form S-4
and Joint Proxy Statement/Prospectus. None of the information supplied or to be supplied by Parent for inclusion or incorporation
by reference in: (a) the Form S-4 will, at the time the Form S-4 or any amendment or supplement thereto is declared effective
under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; or (b) the Joint Proxy Statement/Prospectus will, at the date it is first
mailed to each of Parent’s stockholders and the Company’s stockholders or at the time of the Company Stockholders Meeting
or the Parent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
The Joint Proxy Statement/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act, except
that no representation is made by Parent with respect to statements made or incorporated by reference therein based on information supplied
by the Company for inclusion or incorporation by reference therein.
4.23 Brokers
and Finders. No broker, investment banker, financial advisor or other Person, other than Morgan Stanley & Co. LLC (the
“Parent Financial Advisor”), the fees and expenses of which will be paid by Parent or Parent Subsidiaries, is entitled
to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the Company. Prior to the execution of this Agreement, Parent has
furnished to the Company true and complete copies of all agreements between Parent or its Subsidiaries and the Parent Financial Advisor
relating to the transactions contemplated hereby.
4.24 Opinion
of Financial Advisor. As of the date of this Agreement, the Parent Special Committee has received the opinion of the Parent Financial
Advisor, as of the date of such opinion and based upon and subject to the various qualifications, assumptions, limitations and other matters
set forth therein, the Exchange Ratio pursuant to the Merger Agreement is fair, from a financial point of view, to Parent. Parent shall,
promptly following the execution of this Agreement by all Parties, furnish a copy of each such written opinion to the Company solely for
informational purposes (it being agreed that neither the Company nor any of their respective affiliates or Representatives, shall have
the right to rely on such opinion).
Article V
COVENANTS
5.1 Interim
Operations.
(a) Conduct
of Business by the Company. Except for (1) matters set forth in Section 5.1(a) of the Company Disclosure Letter,
(2) as expressly contemplated by this Agreement (including to effect any of the transactions contemplated hereby), (3) as required
by applicable Law or (4) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed),
from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms
(such time, the “Pre-Closing Period”), the Company shall, and shall cause each Company Subsidiary to, (i) conduct
its business in the ordinary course consistent with past practice in all material respects and (ii) use commercially reasonable efforts
to preserve intact its business organization and material business relationships.
(b) Interim
Prohibitions on the Conduct of the Company. Without limiting the generality of the foregoing, except for (1) matters set forth
in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly contemplated by this Agreement (including to
effect any of the transactions contemplated hereby), (3) as required by applicable Law or (4) with the prior written consent
of Parent (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not, and
shall not permit any Company Subsidiary to, do any of the following:
(i) (A) amend
the Company Charter or the Company Bylaws (including by merger, consolidation or otherwise) or (B) amend in any material respect
the charter or organizational documents of any Company Subsidiary (including by merger, consolidation or otherwise);
(ii) (A) declare,
set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or any combination thereof) in respect
of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect
wholly owned Company Subsidiary to its parent, (B) split, combine, subdivide or reclassify any of its capital stock, other equity
interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests
or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital
stock, other equity interests or voting securities or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem
or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any
securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities
of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such
capital stock, securities or interests, other than (1) the withholding of Shares to satisfy the exercise price or Tax obligations
with respect to awards granted pursuant to the Company Stock Plans, (2) the acquisition by the Company of awards granted pursuant
to the Company Stock Plans in connection with the forfeiture of such awards and (3) the acquisition by the Company of Shares outstanding
as of the date hereof pursuant to the Company’s right (under written commitments in effect as of the date hereof) to acquire Shares
held by any officer or other employee, or individual who is an independent contractor, consultant or director, of or to any of the Company
or any Company Subsidiary upon termination of such Person’s employment or engagement by the Company or any Company Subsidiary;
(iii) issue,
deliver, sell, grant, pledge or otherwise encumber or subject to any Lien, other than Permitted Liens (except for transactions among the
Company and wholly owned Company Subsidiaries) (A) any shares of capital stock of the Company or any Company Subsidiary, (B) any
other equity interests or voting securities of the Company or any Company Subsidiary, (C) any securities convertible into or exchangeable
or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, or (D) any
warrants, calls, options or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company
or any Company Subsidiary, except, in each case of clauses (A) through (C), for issuing Shares upon the exercise of Company
Options, or the settlement or vesting of Company RSUs, Company PSUs or other equity awards outstanding under the Company Stock Plans in
accordance with their respective terms as of the date hereof;
(iv) except
as required by the terms of any Company Plan set forth on Section 3.12(a) of the Company Disclosure Letter as in effect
on the date hereof: (A) increase the salaries, bonus opportunities, incentive compensation or other compensation or benefits payable
to any current or former Company Associate; (B) grant, award, announce or pay any bonus, retention, severance, change in control
or other similar bonus or similar compensation to any current or former Company Associate or any other Person, (C) establish any
Company Plan or amend, terminate or increase the benefits or costs provided under any Company Plan, (D) accelerate the vesting or
payment of, or take any action to fund, any benefit or payment provided to any current or former Company Associates, (E) hire, engage,
promote or terminate (without cause) any employee, consultant or independent contractor of the Company or the Company Subsidiaries or
(F) allow for the commencement of any new offering periods under the Company ESPP;
(v) make
any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in
GAAP (after the date of this Agreement);
(vi) directly
or indirectly acquire or agree to acquire in any transaction any equity interest in or business of any Person (other than any transaction
solely between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries);
(vii) sell,
lease (as lessor), license, covenant not to assert, mortgage and leaseback or otherwise encumber or subject to any Lien (other than any
Permitted Lien), or otherwise dispose of any properties, rights or assets (including any Company IP) that are material to the Company
and its Subsidiaries, taken as a whole, (other than sales and non-exclusive licenses of products or services in the ordinary course of
business consistent with past practice), except (A) pursuant to Contracts in effect on the date of this Agreement and made available
to Parent prior to the date of this Agreement (or entered into after the date of this Agreement without violating the terms of this Agreement),
(B) any of the foregoing with respect to inventory in the ordinary course of business consistent with past practice, (C) any
of the foregoing with respect to obsolete or worthless equipment in the ordinary course of business consistent with past practice, (D) for
any transactions among the Company and the wholly owned Company Subsidiaries in the ordinary course of business consistent with past practice
or (E) with respect to Company IP, (1) abandonment in the ordinary course of prosecution at any intellectual property office
or registrar, other than with respect to any issued or granted Company Registered Intellectual Property or (2) the grant of non-exclusive
licenses in the ordinary course of business;
(viii) incur
any Indebtedness;
(ix) make
or incur any capital investment or capital expenditure in excess of $100,000 individually or $500,000 in the aggregate;
(x) waive,
release, assign, settle or compromise any Legal Proceeding or complaint;
(xi) enter
into, modify, amend, extend, renew, replace or terminate any collective bargaining or other Contract with any labor union;
(xii) subject
to a Lien (other than Permitted Liens), assign, transfer, convey title (in whole or in part), license, covenant not to assert, grant any
right or other licenses to, or otherwise dispose of, material trademarks, trademark rights, trade names or service marks, or enter into
licenses or agreements that impose material restrictions upon the Company or any Company Subsidiaries with respect to material trademarks,
trademark rights, trade names or service marks owned by any third party, in each case other than non-exclusive licenses in the ordinary
course of business consistent with past practice;
(xiii) (1) amend
in any material respect, modify in any material respect or terminate or waive, release or assign any material right under any Company
Material Contract or (2) enter into, amend in any material respect, modify in any material respect or terminate or waive, release
or assign any material right under any Contract that would be a Company Material Contract if it had been entered into prior to the date
of this Agreement;
(xiv) make,
change or revoke any material Tax election, change any method of Tax accounting or annual Tax accounting period, amend any material Tax
Return, settle any claim, action or proceeding relating to material Taxes, waive any statute of limitations for any material Tax claim
or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), obtain or request
any material Tax ruling or closing agreement or enter into any material Tax sharing, allocation or indemnification agreement or arrangement
(other than such agreements or arrangements (A) exclusively between or among the Company and any Company Subsidiary or (B) with
third parties made in the ordinary course of business, the principal purpose of which is not Tax);
(xv) enter
into any new line of business outside of its and the Company Subsidiaries’ existing business;
(xvi) Commence
any Clinical Trial, or any new stage of a Clinical Trial that is ongoing as of the date of this Agreement;
(xvii) take
any action set forth on Section 5.1(b)(xvii) of the Company Disclosure Letter;
(xviii) restructure,
reorganize, dissolve or liquidate the Company or any Company Subsidiary; or
(xix) authorize
any of, or commit, resolve or agree to take any of, the foregoing actions.
(c) Conduct
of Business by Parent. Except for (1) matters set forth in Section 5.1(c) of the Parent Disclosure Letter (2) as
expressly contemplated by this Agreement (including to effect any of the transactions contemplated hereby), (3) as required by applicable
Law or (4) with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), during
the Pre-Closing Period, Parent shall, and shall cause each Parent Subsidiary to, (i) conduct its business in the ordinary course
consistent with past practice in all material respects and (ii) use commercially reasonable efforts to preserve intact its business
organization and material business relationships.
(d) Interim
Prohibitions on the Conduct of Parent. Without limiting the generality of the foregoing, except for (1) matters set forth in
Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement (including to effect
any of the transactions contemplated hereby), (3) as required by applicable Law or (4) with the prior written consent of the
Company (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Parent shall not, and shall
not permit any Parent Subsidiary to, do any of the following:
(i) (A) amend
the Parent Charter or the Parent Bylaws (including by merger, consolidation or otherwise) or (B) amend in any material respect the
charter or organizational documents of any Parent Subsidiary (including by merger, consolidation or otherwise);
(ii) (A) declare,
set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or any combination thereof) in respect
of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect
wholly owned Parent Subsidiary to its parent, (B) split, combine, subdivide or reclassify any of its capital stock, other equity
interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests
or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital
stock, other equity interests or voting securities or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem
or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities
of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity
interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities
or interests, other than (1) the withholding of Parent Common Stock to satisfy the exercise price or Tax obligations with respect
to awards granted pursuant to any Parent stock plan, (2) the acquisition by Parent of awards granted pursuant to any Parent stock
plan in connection with the forfeiture of such awards, and (3) the acquisition by Parent of Parent Common Stock outstanding as of
the date hereof pursuant to Parent’s right (under written commitments in effect as of the date hereof) to acquire shares of Parent
Common Stock held by any officer or other employee, or individual who is an independent contractor, consultant or director, of or to any
of Parent or any Parent Subsidiary upon termination of such Person’s employment or engagement by Parent or any Parent Subsidiary;
(iii) issue,
deliver, sell, grant, pledge or otherwise encumber or subject to any Lien, other than Permitted Liens (except for transactions among Parent
and wholly owned Parent Subsidiaries) and excluding the shares issuable as Merger Consideration: (A) any shares of capital stock
of Parent or any Parent Subsidiary, (B) any other equity interests or voting securities of Parent or any Parent Subsidiary, (C) any
securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, Parent
or any Parent Subsidiary, or (D) any warrants, calls, options or other rights to acquire any capital stock or voting securities of,
or other equity interests in, Parent or any Parent Subsidiary except for compensatory grants in the ordinary course of business of Parent
consistent with past practice and in accordance with Section 5.1(d)(iii) of the Parent Disclosure Letter, in each case
of clauses (A) through (C), excluding shares of Parent Common Stock issuable upon the exercise of options or other equity awards
outstanding under Parent’s equity incentive or stock purchase plans in accordance with their respective terms as of the date hereof;
(iv) make
any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in
GAAP (after the date of this Agreement);
(v) directly
or indirectly acquire or agree to acquire in any transaction any equity interest in or business of any Person (other than any transaction
solely between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries);
(vi) sell,
lease (as lessor), license, covenant not to assert, mortgage and leaseback or otherwise encumber or subject to any Lien (other than any
Permitted Lien), or otherwise dispose of any properties, rights or assets (including any Parent IP) that are material to Parent and its
Subsidiaries, taken as a whole, (other than sales and non-exclusive licenses of products or services in the ordinary course of business
consistent with past practice), except (A) pursuant to Contracts in effect on the date of this Agreement and made available to the
Company (or entered into after the date of this Agreement without violating the terms of this Agreement), (B) any of the foregoing
with respect to inventory in the ordinary course of business consistent with past practice, (C) any of the foregoing with respect
to obsolete or worthless equipment in the ordinary course of business consistent with past practice, (D) for any transactions among
Parent and the wholly owned Parent Subsidiaries in the ordinary course of business consistent with past practice or (E) with respect
to Parent IP, (1) abandonment in the ordinary course of prosecution at any intellectual property office or registrar, other than
with respect to any issued or granted Parent Registered Intellectual Property or (2) the grant of non-exclusive licenses in the ordinary
course of business;
(vii) incur
any Indebtedness;
(viii) waive,
release, assign, settle or compromise any Legal Proceeding or complaint;
(ix) enter
into, modify, amend, extend, renew, replace or terminate any collective bargaining or other Contract with any labor union;
(x) subject
to a Lien (other than Permitted Liens), assign, transfer, convey title (in whole or in part), license, covenant not to assert, grant any
right or other licenses to, or otherwise dispose of, material trademarks, trademark rights, trade names or service marks, or enter into
licenses or agreements that impose material restrictions upon Parent or any Parent Subsidiaries with respect to material trademarks, trademark
rights, trade names or service marks owned by any third party, in each case other than non-exclusive licenses in the ordinary course of
business consistent with past practice;
(xi) make,
change or revoke any material Tax election, change any method of Tax accounting or annual Tax accounting period, amend any material Tax
Return, settle any claim, action or proceeding relating to material Taxes, waive any statute of limitations for any material Tax claim
or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), obtain or request
any material Tax ruling or closing agreement or enter into any material Tax sharing, allocation or indemnification agreement or arrangement
(other than such agreements or arrangements (A) exclusively between or among Parent and any Parent Subsidiary or (B) with third
parties made in the ordinary course of business, the principal purpose of which is not Tax);
(xii) enter
into any new line of business outside of its and the Parent Subsidiaries’ existing business;
(xiii) Commence
any Clinical Trial, or any new stage of a Clinical Trial that is ongoing as of the date of this Agreement;
(xiv) restructure,
reorganize, dissolve or liquidate Parent or any Parent Subsidiary; or
(xv) authorize
any of, or commit, resolve or agree to take any of, the foregoing actions.
(e) Notice
of Material Events. During the Pre-Closing Period, each Party shall promptly notify the other Party in writing of any event, condition,
fact or circumstance that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VI
impossible or unlikely or (in the case of the Company) that has had or could reasonably be expected to have or result in a Company Material
Adverse Effect. Without limiting the generality of the foregoing, a Party shall promptly advise the other Party in writing of: (i) any
claim asserted or Legal Proceeding commenced, or, to the Party’s Knowledge, either: (A) with respect to a Governmental Entity,
overtly threatened; or (B) with respect to any other Person, threatened in writing, in each case against, relating to, involving
or otherwise affecting any of the transactions contemplated hereby; (ii) any Knowledge by such Party of any notice from any Person
alleging that the consent of such Person is or may be required in connection with the Merger or any of the other transactions contemplated
hereby; and (iii) any other material Legal Proceeding or material claim threatened, commenced or asserted against or with respect
to any Party or its respective Subsidiaries. No notification given pursuant to this Section 5.1(e) shall limit or otherwise
affect any of the representations, warranties, covenants or obligations of such Party contained in this Agreement.
(f) All
notices, requests, instructions, communications or other documents to be given in connection with any consultation or approval required
pursuant to this Section 5.1 shall be in writing and shall be deemed given as provided for in Section 8.8, and,
in each case, shall be addressed to such individuals as the Parties shall designate in writing from time to time.
(g) Notwithstanding
the foregoing, nothing contained in this Agreement shall give Parent or the Company, directly or indirectly, rights to control or direct
the operations of the other prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent
with the terms and conditions of this Agreement, complete control and supervision of its operations.
5.2 Company
Acquisition Proposals; Company Change in Recommendation.
(a) No
Solicitation or Negotiation.
(i) During
the Pre-Closing Period, except as expressly permitted by this Section 5.2, the Company and its and its Subsidiaries’
directors and officers shall not, and shall not direct any of its and their respective employees, investment bankers, attorneys, accountants
and other advisors, agents or representatives (collectively, along with such directors and officers, “Representatives”)
to, directly or indirectly:
(A) solicit,
initiate, knowingly induce, knowingly encourage or knowingly facilitate (including by way of granting a waiver under Section 203
of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company
Acquisition Proposal;
(B) participate
in any discussions or negotiations or cooperate in any way with any Person regarding any proposal or offer the consummation of which would
constitute a Company Acquisition Proposal;
(C) provide
any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any proposal the consummation
of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating
a Company Acquisition Proposal;
(D) enter
into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement
in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect
to a Company Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal;
(E) adopt,
approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could
reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any Person becoming
an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than
Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable
takeover laws or the Company’s organizational or other governing documents; or
(F) resolve,
publicly propose or agree to do any of the foregoing.
(ii) The
Company shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any solicitation,
encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or
proposal that could reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such
Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. As soon as reasonably practicable after
the date of this Agreement, the Company shall deliver a written notice to each Person that entered into a confidentiality agreement in
anticipation of potentially making a Company Acquisition Proposal within the last 30 days, to the effect that the Company is ending
all discussions and negotiations with such Person with respect to any Company Acquisition Proposal, effective on the date hereof and requesting
the prompt return or destruction of all confidential information previously furnished to such Person. The Company shall take all actions
necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any Person (other
than Parent), and, subject to Section 5.2(b), shall not grant any waiver of, or agree to any amendment or modification to,
any such agreement, to permit such Person to submit a Company Acquisition Proposal.
(b) Fiduciary
Exception to No Solicitation Provision. Notwithstanding anything to the contrary in Section 5.2(a), prior to the time,
but not after, the Company Stockholder Approval is obtained, the Company may, in response to an unsolicited, bona fide written
Company Acquisition Proposal (which Company Acquisition Proposal was made after the date of this Agreement and has not been withdrawn)
which did not result from a breach, in any material respect, of Section 5.2(a) and so long as it has provided prior written
notice to Parent of the identity of such Person and its intention to engage or participate in any discussions or negotiations with any
such Person, (i) contact the Person or group of Persons making such Company Acquisition Proposal to clarify the terms and conditions
thereof, (ii) provide access to non-public information regarding the Company or any of its Subsidiaries to the Person who made such
Company Acquisition Proposal; provided, that such information has previously been made available to Parent or is provided to Parent
substantially concurrently with the making of such information available to such Person and that, prior to furnishing any such non-public
information, the Company receives from the Person making such Company Acquisition Proposal an executed confidentiality agreement with
terms at least as restrictive in all material respects on such Person as the terms of the Confidentiality Agreement are on Parent (it
being understood that such confidentiality agreement need not prohibit the making or amending of a Company Acquisition Proposal) and (iii) engage
or participate in any discussions or negotiations with any such Person regarding such Company Acquisition Proposal if, and only if, prior
to taking any action described in clause (ii) or (iii), the Company Board determines in good faith after consultation with outside
legal counsel that (A) after consultation with an independent financial advisor that such Company Acquisition Proposal either constitutes
a Company Superior Proposal or would reasonably be expected to result in a Company Superior Proposal and (B) the failure to take
such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(c) Notice.
The Company shall promptly (and, in any event, within 24 hours) notify Parent (orally and in writing) if (i) any written or
other inquiries, proposals or offers with respect to a Company Acquisition Proposal or any inquiries, proposals, offers or requests for
information relating to or that could reasonably be expected to lead to a Company Acquisition Proposal are received by the Company, (ii) any
non-public information is requested in connection with any Company Acquisition Proposal from the Company or (iii) any discussions
or negotiation with respect to or that could reasonably be expected to lead to a Company Acquisition Proposal are sought to be initiated
or continued with the Company, indicating, in connection with such notice, the name of such Person and the material terms and conditions
of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements
and other material written communications or, if oral, a summary of the material terms and conditions of such proposal or offer), and
thereafter shall keep Parent informed, on a current basis (and in any event within 24 hours), of any material developments with respect
to any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including by
promptly providing copies of any additional written requests, proposals or offers, including any drafts of proposed agreements and any
amendments thereto and other information set forth above. The Company agrees that it and its Subsidiaries will not enter into any confidentiality
agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent
in accordance with this Section 5.2 or otherwise prohibits the Company from complying with its obligations under this Section 5.2.
The Company further agrees that it will not provide information to any Person pursuant to any confidentiality agreement entered into prior
to the date of this Agreement unless such Person agrees prior to receipt of such information to waive any provision that would prohibit
the Company from providing any information to Parent in accordance with this Section 5.2 or otherwise prohibit the Company
from complying with its obligations under this Section 5.2.
(d) Definitions.
For purposes of this Agreement:
“Company
Acquisition Proposal” means any proposal (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) any
merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization,
tender offer, exchange offer or other similar transaction in which a Person or “group” (as defined in the Exchange Act) of
Persons directly or indirectly acquires, or if consummated in accordance with its terms would acquire, beneficial or record ownership
of securities representing more than 15% of the outstanding shares of any class of securities of the Company; (ii) issuance or acquisition
of securities representing more than 15% of the outstanding shares of any class of securities of the Company; (iii) any direct or
indirect sale, lease, exchange, transfer, acquisition or disposition of any assets of the Company and of the Company Subsidiaries that
constitute or account for (A) more than 15% of the consolidated net revenues of the Company, consolidated net income of the Company
or consolidated book value of the Company or (B) more than 15% of the fair market value of the consolidated assets of the Company;
or (iv) any liquidation or dissolution of the Company.
“Company
Intervening Event” means any Effect that has a material effect on the Company and its Subsidiaries, taken as a whole, occurring
or arising after the date of this Agreement that: (i) was not known to, or reasonably foreseeable by, the Company Board prior to
the execution of this Agreement, which Effect becomes known to, or reasonably foreseeable by, the Company Board prior to the receipt of
the Company Stockholder Approval and (ii) does not relate to (A) a Company Acquisition Proposal; (B)(1) any changes in
the market price or trading volume of the Company or Parent (it being understood that the cause of such change may be taken into consideration
unless otherwise excluded pursuant hereto), (2) the Company or Parent meeting, failing to meet or exceeding published or unpublished
revenue or earnings projections, in each case in and of itself (it being understood that the cause of such change may be taken into consideration
unless otherwise excluded pursuant hereto), (3) any events or developments relating to Parent or any of the Parent Affiliates, (4) any
Effect generally affecting the industries in which Company or Parent operate or in the economy generally or other general business, financial
or market conditions or (5) any change in any applicable Law; or (C) any event or development to the extent directly resulting
from the announcement or pendency of, or any actions required to be taken by the Company or Parent (or refrained to be taken by the Company
or Parent) pursuant to the Agreement or the consummation of the transactions contemplated hereby.
“Company
Superior Proposal” means any bona fide, binding, written Company Acquisition Proposal on terms which the Company Board
determines in its good faith judgment, after consultation with outside counsel and an independent financial advisor, would reasonably
be expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal
and the Person or group of Persons making the proposal, and, if consummated, would result in a transaction more favorable to the Company’s
stockholders from a financial point of view than the Merger (after taking into account any revisions to the terms of the transactions
contemplated by this Agreement pursuant to Section 5.2(f) of this Agreement and the time likely to be required to consummate
such Company Acquisition Proposal); provided, that, for purposes of the definition of “Company Superior Proposal,”
the references to “15%” in the definition of Company Acquisition Proposal shall be deemed to be references to “80%.”
(e) No
Company Change in Recommendation or Company Alternative Acquisition Agreement. Except as provided in Section 5.2(f) and
Section 5.2(g), the Company Board and each committee of the Company Board shall not (i) withhold, withdraw, qualify or
modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Company Board Recommendation
or approve, recommend or otherwise declare advisable (or publicly propose or resolve to approve, recommend or otherwise declare advisable)
any Company Acquisition Proposal or make or authorize the making of any public statement (oral or written) that has the substantive effect
of such a withdrawal, qualification or modification, or remove the Company Board Recommendation from or fail to include the Company Board
Recommendation in the Joint Proxy Statement/Prospectus (each, a “Company Change in Recommendation”) or (ii) cause
or permit the Company or any of its Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement
in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, lease agreement
or other similar agreement (other than a confidentiality agreement referred to in Section 5.2(b) entered into in compliance
with Section 5.2(a)) relating to or that could reasonably be expected to lead to any Company Acquisition Proposal or requiring
the Company (or that would require or could reasonably be expected to require the Company) to abandon, terminate, or fail to consummate
the Merger or any other transaction contemplated by this Agreement or that would otherwise materially impede, interfere with or be inconsistent
with, the transactions contemplated hereby (a “Company Alternative Acquisition Agreement”).
(f) Fiduciary
Exception to No Company Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in Section 5.2(e),
following receipt of an unsolicited, bona fide written Company Acquisition Proposal by the Company after the date of this Agreement
that did not result from a breach of Section 5.2(a) and with respect to which the Company has received a written, definitive
form of Company Alternative Acquisition Agreement that has not been withdrawn, and the Company Board determining in good faith, after
consultation with independent financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company
Superior Proposal, the Company Board may, at any time prior to the time the Company Stockholder Approval is obtained, make a Company Change
in Recommendation with respect to such Company Superior Proposal, if all of the following conditions are met:
(i) the
Company shall have complied with the provisions of this Section 5.2, and the Company and the Company Board (x) shall
have provided to Parent four (4) Business Days’ prior written notice, which shall state expressly: (A) that it has received
an unsolicited bona fide written Company Acquisition Proposal that constitutes a Company Superior Proposal, (B) the material
terms and conditions of such Company Superior Proposal (including the consideration offered therein and the identity of the Person or
group making such Company Superior Proposal), together with an unredacted copy of the Company Alternative Acquisition Agreement and all
other written documents and a summary of the material terms of oral communications related to such Company Superior Proposal (it being
understood and agreed that any amendment to the financial terms or any other material term or condition of such Company Superior Proposal
shall require a new notice to Parent and an additional two (2) Business Day period) and (C) that, subject to Section 5.2(f)(ii),
the Company Board has determined to effect a Company Change in Recommendation; and (y) prior to making such a Company Change in Recommendation,
(1) shall have engaged in good faith negotiations with Parent (to the extent Parent wishes to engage) during such notice period to
consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by Parent such that the Company Alternative
Acquisition Agreement ceases to constitute a Company Superior Proposal and (2) in determining whether to make a Company Change in
Recommendation, shall take into account any changes to the terms of this Agreement proposed in writing by Parent; and
(ii) the
Company Board shall have determined, in good faith, after consultation with its independent financial advisor and outside legal counsel,
that, in light of such Company Superior Proposal and taking into account any revised terms proposed in writing by Parent, such Company
Superior Proposal continues to constitute a Company Superior Proposal and, after consultation with outside legal counsel, that the failure
to make such Company Change in Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Company
Change in Recommendation Due to Company Intervening Event. Notwithstanding anything to the contrary set forth in Section 5.2(e),
upon the occurrence of any Company Intervening Event, the Company Board may, at any time prior to the time the Company Stockholder Approval
is obtained, make a Company Change in Recommendation, if all of the following conditions are met:
(i) the
Company and the Company Board (x) shall have provided to Parent four (4) Business Days’ prior written notice, which shall
(A) set forth in reasonable detail information describing the Company Intervening Event and the rationale for the Company Change
in Recommendation (it being understood and agreed that any amendment to the facts and circumstances relating to the Company Intervening
Event shall require a new notice to Parent and an additional two (2) Business Day period), and (B) state expressly that, subject
to Section 5.2(g)(ii) below, the Company Board has determined to effect a Company Change in Recommendation and (y) prior
to making such a Company Change in Recommendation, shall have engaged in good faith negotiations with Parent (to the extent Parent wishes
to engage) during such notice period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing
by Parent in such a manner that the failure of the Company Board to make a Company Change in Recommendation in response to the Company
Intervening Event in accordance with Section 5.2(g)(ii) would no longer be reasonably expected to be inconsistent with
the directors’ fiduciary duties under applicable Law; and
(ii) the
Company Board shall have determined in good faith, after consultation with its independent financial advisor and outside legal counsel,
that in light of such Company Intervening Event and taking into account any revised terms proposed in writing by Parent, the failure to
make a Company Change in Recommendation, would be inconsistent with the directors’ fiduciary duties under applicable Law.
(h) Certain
Permitted Disclosure. Nothing contained in this Section 5.2 shall be deemed to prohibit the Company from complying with
its disclosure obligations under applicable U.S. federal or state Law with regard to a Company Acquisition Proposal; provided,
that any “stop look and listen” communication to its stockholders of the nature contemplated by Rule 14d-9 under the
Exchange Act shall include an affirmative statement to the effect that the recommendation of the Company Board is affirmed or remains
unchanged; provided, further, that this Section 5.2(h) shall not be deemed to permit the Company or the
Company Board to effect a Company Change in Recommendation except in accordance with Section 5.2(f) or Section 5.2(g).
The Company shall not submit to the vote of its stockholders any Company Acquisition Proposal or Company Superior Proposal prior to the
termination of this Agreement in accordance with Article VII.
(i) Breach
by Representatives. The Company agrees any action taken by any director, officer, outside legal counsel or Company Affiliate or by
the Company Financial Advisor (collectively, the “Company Specified Representatives”) that, if taken by Company, would
constitute a breach of any provision set forth in this Section 5.2 shall be deemed to constitute a breach of such provision
by the Company.
5.3 Parent
Acquisition Proposals; Parent Change in Recommendation.
(a) No
Solicitation or Negotiation.
(i) During
the Pre-Closing Period, except as expressly permitted by this Section 5.3, Parent and its and its Subsidiaries’ directors
and officers shall not, and shall not direct any of its and their respective Representatives to, directly or indirectly:
(A) solicit,
initiate, knowingly induce, knowingly encourage or knowingly facilitate (including by way of granting a waiver under Section 203
of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Parent
Acquisition Proposal;
(B) participate
in any discussions or negotiations or cooperate in any way with any Person regarding any proposal or offer the consummation of which would
constitute a Parent Acquisition Proposal;
(C) provide
any information or data concerning Parent or any of its Subsidiaries to any Person in connection with any proposal the consummation of
which would constitute a Parent Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating
a Parent Acquisition Proposal;
(D) enter
into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement
in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect
to a Parent Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal;
(E) adopt,
approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could
reasonably be expected to lead to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming
an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than
the Company and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable
takeover laws or Parent’s organizational or other governing documents; or
(F) resolve,
publicly propose or agree to do any of the foregoing.
(ii) Parent
shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any solicitation, encouragement,
discussions and negotiations with any Person conducted heretofore with respect to any Parent Acquisition Proposal, or proposal that could
reasonably be expected to lead to a Parent Acquisition Proposal, and shall promptly terminate access by any such Person to any physical
or electronic data rooms relating to any such Parent Acquisition Proposal. As soon as reasonably practicable after the date of this Agreement,
Parent shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making
a Parent Acquisition Proposal within the last 30 days, to the effect that Parent is ending all discussions and negotiations with
such Person with respect to any Parent Acquisition Proposal, effective on the date hereof and requesting the prompt return or destruction
of all confidential information previously furnished to such Person. Parent shall take all actions necessary to enforce its rights under
the provisions of any “standstill” agreement between Parent and any Person (other than the Company), and, subject to Section 5.3(b),
shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Parent
Acquisition Proposal.
(b) Fiduciary
Exception to No Solicitation Provision. Notwithstanding anything to the contrary in Section 5.3(a), prior to the time,
but not after, the Parent Stockholder Approval is obtained, Parent may, in response to an unsolicited, bona fide written Parent Acquisition
Proposal (which Parent Acquisition Proposal was made after the date of this Agreement and has not been withdrawn) which did not result
from a breach, in any material respect, of Section 5.3(a) and so long as it has provided prior written notice to the
Company of the identity of such Person and its intention to engage or participate in any discussions or negotiations with any such Person,
(i) contact the Person or group of Persons making such Parent Acquisition Proposal to clarify the terms and conditions thereof, (ii) provide
access to non-public information regarding Parent or any of its Subsidiaries to the Person who made such Parent Acquisition Proposal;
provided, that such information has previously been made available to the Company or is provided to the Company substantially concurrently
with the making of such information available to such Person and that, prior to furnishing any such non-public information, Parent receives
from the Person making such Parent Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all
material respects on such Person as the terms of the Confidentiality Agreement are on the Company (it being understood that such confidentiality
agreement need not prohibit the making or amending of a Parent Acquisition Proposal), and (iii) engage or participate in any discussions
or negotiations with any such Person regarding such Parent Acquisition Proposal if, and only if, prior to taking any action described
in clause (ii) or (iii), the Parent Board determines in good faith after consultation with outside legal counsel that (A) after
consultation with an independent financial advisor that such Parent Acquisition Proposal either constitutes a Parent Superior Proposal
or would reasonably be expected to result in a Parent Superior Proposal and (B) the failure to take such action would reasonably
be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(c) Notice.
Parent shall promptly (and, in any event, within 24 hours) notify the Company (orally and in writing) if (i) any written or
other inquiries, proposals or offers with respect to a Parent Acquisition Proposal or any inquiries, proposals, offers or requests for
information relating to or that could reasonably be expected to lead to a Parent Acquisition Proposal are received by Parent, (ii) any
non-public information is requested in connection with any Parent Acquisition Proposal from Parent or (iii) any discussions or negotiation
with respect to or that could reasonably be expected to lead to a Parent Acquisition Proposal are sought to be initiated or continued
with Parent, indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals
or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements and other material
written communications or, if oral, a summary of the material terms and conditions of such proposal or offer), and thereafter shall keep
the Company informed, on a current basis (and in any event within 24 hours), of any material developments with respect to any such
proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including by promptly providing
copies of any additional written requests, proposals or offers, including any drafts of proposed agreements and any amendments thereto
and other information set forth above. Parent agrees that it and its Subsidiaries will not enter into any confidentiality agreement with
any Person subsequent to the date of this Agreement which prohibits Parent from providing any information to the Company in accordance
with this Section 5.3 or otherwise prohibits Parent from complying with its obligations under this Section 5.3.
Parent further agrees that it will not provide information to any Person pursuant to any confidentiality agreement entered into prior
to the date of this Agreement unless such Person agrees prior to receipt of such information to waive any provision that would prohibit
Parent from providing any information to the Company in accordance with this Section 5.3 or otherwise prohibit Parent from
complying with its obligations under this Section 5.3.
(d) Definitions.
For purposes of this Agreement:
“Parent
Acquisition Proposal” means any proposal (other than a proposal or offer by the Company or any of its Subsidiaries) for (i) any
merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization,
tender offer, exchange offer or other similar transaction in which a Person or “group” (as defined in the Exchange Act) of
Persons directly or indirectly acquires, or if consummated in accordance with its terms would acquire, beneficial or record ownership
of securities representing more than 15% of the outstanding shares of any class of securities of Parent; (ii) issuance or acquisition
of securities representing more than 15% of the outstanding shares of any class of securities of Parent; (iii) except as permitted
pursuant to Section 5.1(d) of this Agreement or as disclosed in Section 5.1(d) of the Parent Disclosure
Letter, any direct or indirect sale, lease, exchange, transfer, acquisition or disposition of any assets of Parent and of the Parent Subsidiaries
that constitute or account for (A) more than 15% of the consolidated net revenues of Parent, consolidated net income of Parent or
consolidated book value of Parent or (B) more than 15% of the fair market value of the consolidated assets of Parent; or (iv) any
liquidation or dissolution of Parent.
“Parent
Intervening Event” means any Effect that has a material effect on Parent and its Subsidiaries, taken as a whole, occurring or
arising after the date of this Agreement that: (i) was not known to, or reasonably foreseeable by, the Parent Board prior to the
execution of this Agreement, which Effect becomes known to, or reasonably foreseeable by, the Parent Board prior to the receipt of the
Parent Stockholder Approval and (ii) does not relate to (A) a Parent Acquisition Proposal; (B)(1) any changes in the market
price or trading volume of the Company or Parent (it being understood that the cause of such change may be taken into consideration unless
otherwise excluded pursuant hereto), (2) the Company or Parent meeting, failing to meet or exceeding published or unpublished revenue
or earnings projections, in each case in and of itself (it being understood that the cause of such change may be taken into consideration
unless otherwise excluded pursuant hereto), (3) any events or developments relating to the Company or any of the Company Affiliates,
(4) any event or development generally affecting the industries in which Company or Parent operate or in the economy generally or
other general business, financial or market conditions or (5) any change in any applicable Law; or (C) any Effect to the extent
directly resulting from the announcement or pendency of, or any actions required to be taken by the Company or Parent (or refrained to
be taken by the Company or Parent) pursuant to the Agreement or the consummation of the transactions contemplated hereby.
“Parent
Superior Proposal” means any bona fide, binding, written Parent Acquisition Proposal on terms which the Parent Board determines
in its good faith judgment, after consultation with outside counsel and an independent financial advisor, would reasonably be expected
to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the
Person or group of Persons making the proposal, and, if consummated, would result in a transaction more favorable to Parent’s stockholders
from a financial point of view than the Merger (after taking into account any revisions to the terms of the transactions contemplated
by this Agreement pursuant to Section 5.3(f) of this Agreement and the time likely to be required to consummate such
Parent Acquisition Proposal); provided, that for purposes of the definition of “Parent Superior Proposal”, the references
to “15%” in the definition of Company Acquisition Proposal shall be deemed to be references to “80%.”
(e) No
Parent Change in Recommendation or Parent Alternative Acquisition Agreement. Except as provided in Section 5.3(f) and
Section 5.3(g), the Parent Board and each committee of the Parent Board shall not (i) withhold, withdraw, qualify or
modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Parent Board Recommendation
or approve, recommend or otherwise declare advisable (or publicly propose or resolve to approve, recommend or otherwise declare advisable)
any Parent Acquisition Proposal or make or authorize the making of any public statement (oral or written) that has the substantive effect
of such a withdrawal, qualification or modification, or remove the Parent Board Recommendation from or fail to include the Parent Board
Recommendation in the Joint Proxy Statement/Prospectus (a “Parent Change in Recommendation”) or (ii) cause or
permit Parent or any of its Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle,
acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar
agreement (other than a confidentiality agreement referred to in Section 5.3(b) entered into in compliance with Section 5.3(a))
relating to or that could reasonably be expected to lead to any Parent Acquisition Proposal or requiring Parent (or that would require
or could reasonably be expected to require Parent) to abandon, terminate, or fail to consummate the Merger or any other transaction contemplated
by this Agreement or that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated hereby
(a “Parent Alternative Acquisition Agreement”).
(f) Fiduciary
Exception to No Parent Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in Section 5.3(e),
following receipt of an unsolicited, bona fide written Parent Acquisition Proposal by Parent after the date of this Agreement that did
not result from a breach of Section 5.3(a) and with respect to which Parent has received a written, definitive form of
Parent Alternative Acquisition Agreement that has not been withdrawn, and the Parent Board determining in good faith, after consultation
with independent financial advisors and outside legal counsel, that such Parent Acquisition Proposal constitutes a Parent Superior Proposal,
the Parent Board may, at any time prior to the time the Parent Stockholder Approval is obtained, make a Parent Change in Recommendation
with respect to such Parent Superior Proposal, if all of the following conditions are met:
(i) Parent
shall have complied with the provisions of this Section 5.3, and Parent and the Parent Board shall have (x) provided
to the Company four (4) Business Days’ prior written notice, which shall state expressly: (A) that it has received an
unsolicited bona fide written Parent Acquisition Proposal that constitutes a Parent Superior Proposal, (B) the material terms
and conditions of such Parent Superior Proposal (including the consideration offered therein and the identity of the Person or group making
such Parent Superior Proposal), together with an unredacted copy of the Parent Alternative Acquisition Agreement and all other written
documents and a summary of the material terms of oral communications related to such Parent Superior Proposal (it being understood and
agreed that any amendment to the financial terms or any other material term or condition of such Parent Superior Proposal shall require
a new notice to the Company and an additional two (2) Business Day period) and (C) that, subject to Section 5.3(f)(ii),
the Parent Board has determined to effect a Parent Change in Recommendation, and (y) prior to making such a Parent Change in Recommendation,
(1) shall have engaged in good faith negotiations with the Company (to the extent the Company wishes to engage) during such notice
period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by the Company such that
the Parent Alternative Acquisition Agreement ceases to constitute a Parent Superior Proposal and (2) in determining whether to make
a Parent Change in Recommendation, shall take into account any changes to the terms of this Agreement proposed in writing by Parent; and
(ii) the
Parent Board shall have determined, in good faith, after consultation with its independent financial advisor and outside legal counsel,
that, in light of such Parent Superior Proposal and taking into account any revised terms proposed in writing by Parent, such Parent Superior
Proposal continues to constitute a Parent Superior Proposal and, after consultation with outside legal counsel, that the failure to make
such Parent Change in Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Parent
Change in Recommendation Due to Parent Intervening Event. Notwithstanding anything to the contrary set forth in Section 5.3(e),
upon the occurrence of any Parent Intervening Event, the Parent Board may, at any time prior to the time the Parent Stockholder Approval
is obtained, make a Parent Change in Recommendation, if all of the following conditions are met:
(i) Parent
and the Parent Board (x) shall have provided to the Company four (4) Business Days’ prior written notice, which shall
(A) set forth in reasonable detail information describing the Parent Intervening Event and the rationale for the Parent Change in
Recommendation (it being understood and agreed that any amendment to the facts and circumstances relating to the Parent Intervening Event
shall require a new notice to the Company and an additional two (2) Business Day period) and (B) state expressly that, subject
to Section 5.3(g)(ii), the Parent Board has determined to effect a Parent Change in Recommendation and (y) prior to making
such a Parent Change in Recommendation, shall have engaged in good faith negotiations with the Company (to the extent the Company wishes
to engage) during such notice period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing
by the Company in such a manner that the failure of the Parent Board to make a Parent Change in Recommendation in response to the Parent
Intervening Event in accordance with Section 5.3(g)(ii) would no longer be reasonably expected to be inconsistent with
the directors’ fiduciary duties under applicable Law; and
(ii) the
Parent Board shall have determined in good faith, after consultation with its independent financial advisor and outside legal counsel,
that in light of such Parent Intervening Event and taking into account any revised terms proposed in writing by the Company, the failure
to make a Parent Change in Recommendation, would be inconsistent with the directors’ fiduciary duties under applicable Law.
(h) Certain
Permitted Disclosure. Nothing contained in this Section 5.3 shall be deemed to prohibit Parent from complying with its
disclosure obligations under applicable U.S. federal or state Law with regard to a Parent Acquisition Proposal; provided, that
any “stop look and listen” communication to its stockholders of the nature contemplated by Rule 14d-9 under the Exchange
Act shall include an affirmative statement to the effect that the recommendation of the Parent Board is affirmed or remains unchanged;
provided, further, that this Section 5.3(h) shall not be deemed to permit Parent or the Parent Board to
effect a Parent Change in Recommendation except in accordance with Section 5.3(f) or Section 5.3(g). Parent
shall not submit to the vote of its stockholders any Parent Acquisition Proposal or Parent Superior Proposal prior to the termination
of this Agreement in accordance with Article VII.
(i) Breach
by Representatives. Parent agrees any action taken by any director, officer, outside legal counsel or Parent Affiliate or by the Parent
Financial Advisor (collectively, the “Parent Specified Representatives”) that, if taken by Parent, would constitute
a breach of any provision set forth in this Section 5.3 shall be deemed to constitute a breach of such provision by Parent.
5.4 Information
Supplied.
(a) The
Company and Parent shall jointly prepare and cause to be filed with the SEC a joint proxy statement (as amended or supplemented from time
to time, the “Joint Proxy Statement/Prospectus”) with respect to the Company Stockholders Meeting and the Parent
Stockholders Meeting. As promptly as practicable following the date of this Agreement, Parent shall prepare (with the Company’s
reasonable cooperation) and confidentially submit to, followed as promptly as practicable by public filing with, the SEC a registration
statement on Form S-4 (as amended or supplemented from time to time, the “Form S-4”), in which a preliminary
form of the Joint Proxy Statement/Prospectus will be included as a prospectus, in connection with the registration under the Securities
Act of the shares of Parent Common Stock to be issued in the Merger. Parent shall use its reasonable best efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after such filing and to keep the Form S-4 effective as long
as is necessary to consummate the Merger and the other transactions contemplated hereby. Parent shall also take any action (other than
qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required
to be taken under any applicable state securities or “blue sky” laws in connection with the issuance of shares of Parent Common
Stock in the Merger. Each of the Company and Parent shall furnish all information concerning the Company and the holders of Shares and
Parent and the holders of the capital stock of Parent, as applicable, as may be reasonably requested in connection with any such action.
Each of the Company and Parent shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s
stockholders and Parent’s stockholders, as applicable, as promptly as practicable after the Form S-4 is declared effective
under the Securities Act.
(b) No
confidential submission, filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no confidential submission,
filing of, or amendment or supplement to, the Joint Proxy Statement/Prospectus will be made by the Company or Parent, in each case without
providing the other Party a reasonable opportunity to review and comment thereon (other than, in each case, any filing, amendment or supplement
in connection with a Company Change in Recommendation or a Parent Change in Recommendation, as applicable), and each Party shall consider
in good faith all comments reasonably proposed by the other Party. Each of the Company and Parent shall promptly provide the other with
copies of all such confidential submission, filings, amendments or supplements to the extent not publicly available. Each of the Company
and Parent shall furnish all information concerning such Person and its Affiliates to the other and provide such other assistance as may
be reasonably requested by such other Party to be included therein and shall otherwise reasonably assist and cooperate with the other
in the preparation of the Form S-4 or Joint Proxy Statement/Prospectus, as applicable, and the resolution of any comments to either
received from the SEC. If at any time prior to the receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any
information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the
Company or Parent which is required to be set forth in an amendment or supplement to either the Form S-4 or the Joint Proxy Statement/Prospectus,
so that either such document would not include any misstatement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party
which discovers such information shall promptly notify the other Party and an appropriate amendment or supplement describing such information
shall be promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company or
the stockholders of Parent, as applicable. The Parties shall notify each other promptly of the receipt of any comments from the SEC or
the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Form S-4 or the Joint
Proxy Statement/Prospectus, or for additional information and shall supply each other with copies of (i) all material correspondence
between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the
Form S-4, Joint Proxy Statement/Prospectus or the Merger and (ii) all orders of the SEC relating to the Form S-4. No response
to any comments from the SEC or the staff of the SEC relating to the Joint Proxy Statement/Prospectus will be made by either Party without
providing the other a reasonable opportunity to review and comment thereon unless pursuant to a telephone call initiated by the SEC, and
each Party shall consider in good faith all comments reasonably proposed by the other Party. The Parties will cause the Form S-4
and Joint Proxy Statement/Prospectus to comply as to form in all material respects with the applicable provisions of the Securities Act
and the Exchange Act.
5.5 Company
and Parent Stockholder Meetings.
(a) Company
Stockholders Meeting.
(i) The
Company will, as promptly as practicable in accordance with applicable Law and the Company Charter and Company Bylaws, establish a record
date for, duly call and give notice of, and use its reasonable best efforts to convene a meeting of holders of Shares to consider and
vote upon the adoption of this Agreement, which meeting shall in any event take place within 45 days after the declaration of the effectiveness
of the Form S-4 (the “Company Stockholders Meeting”). The Company shall use its reasonable best efforts to hold
the Company Stockholders Meeting on the same day as the Parent Stockholders Meeting as soon as practicable after the date on which the
Form S-4 becomes effective. Subject to the provisions of Section 5.2(f) and Section 5.2(g), the Company
Board shall include the Company Board Recommendation in the Joint Proxy Statement/Prospectus and recommend at the Company Stockholders
Meeting that the holders of Shares adopt this Agreement and shall use its reasonable best efforts to (i) solicit proxies from its
stockholders in favor of adoption of this Agreement and (ii) secure the vote or consent of its stockholders required by the rules of
Nasdaq to obtain such approvals including engaging one or more nationally recognized proxy solicitation firms and information agents to
assist in such solicitation. Notwithstanding the foregoing, (x) if on or before the date on which the Company Stockholders Meeting
is scheduled, the Company reasonably believes that (i) it will not receive proxies representing the Company Stockholder Approval,
whether or not a quorum is present or (ii) it will not have enough Shares represented to constitute a quorum necessary to conduct
the business of the Company Stockholders Meeting, the Company may (and, if requested by Parent, the Company shall) postpone or adjourn,
or make one or more successive postponements or adjournments of, the Company Stockholders Meeting and (y) the Company may postpone
or adjourn the Company Stockholders Meeting to allow reasonable additional time for the filing or mailing of any supplemental or amended
disclosure that the Company has determined, after consultation with outside legal counsel, is reasonably likely to be required under applicable
Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of the Company prior to the Company
Stockholders Meeting, as long as the date of the Company Stockholders Meeting is not postponed or adjourned more than an aggregate of
15 calendar days in connection with any such postponements or adjournments pursuant to either or both of the preceding clauses (x) and
(y).
(ii) Notwithstanding
any Company Change in Recommendation, the Company shall submit this Agreement to the holders of Shares for adoption at the Company Stockholders
Meeting unless this Agreement is terminated in accordance with Article VII prior to the Company Stockholders Meeting. Without
the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than matters of procedure and matters
required by applicable Law to be voted on by the Company’s stockholders in connection with the adoption of this Agreement and the
transactions contemplated hereby) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders
Meeting.
(b) Parent
Stockholders Meeting.
(i) Parent
will, as promptly as practicable in accordance with applicable Law and the Parent Charter and Parent Bylaws, establish a record date for,
duly call and give notice of, and use its reasonable best efforts to convene a meeting of holders of capital stock of Parent to consider
and vote upon the Parent Share Issuance. Parent shall use its reasonable best efforts to hold the Parent Stockholders Meeting on the same
day as the Company Stockholders Meeting and as soon as practicable after the date on which the Form S-4 becomes effective, which
meeting shall in any event take place within 45 days after the declaration of the effectiveness of the Form S-4. Subject to the provisions
of Section 5.3(f) and Section 5.3(g), the Parent Board shall include the Parent Board Recommendation in the
Joint Proxy Statement/Prospectus and recommend at the Parent Stockholders Meeting that the holders of capital stock of Parent approve
the Parent Share Issuance and shall use its reasonable best efforts to (i) solicit proxies from its stockholders in favor of adoption
of this Agreement and (ii) secure the vote or consent of its stockholders required by the rules of Nasdaq to obtain such approvals
including engaging one or more nationally recognized proxy solicitation firms and information agents to assist in such solicitation. Notwithstanding
the foregoing, (x) if on or before the date on which the Parent Stockholders Meeting is scheduled, Parent reasonably believes that
(A) it will not receive proxies representing the Parent Stockholder Approval, whether or not a quorum is present, or (B) it
will not have enough shares of Parent Common Stock represented to constitute a quorum necessary to conduct the business of the Parent
Stockholders Meeting, Parent may (and, if requested by the Company, Parent shall) postpone or adjourn, or make one or more successive
postponements or adjournments of, the Parent Stockholders Meeting and (y) Parent may postpone or adjourn the Parent Stockholders
Meeting to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined,
after consultation with outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended
disclosure to be disseminated and reviewed by stockholders of Parent prior to the Parent Stockholders Meeting, as long as the date of
the Parent Stockholders Meeting is not postponed or adjourned more than an aggregate of 15 calendar days in connection with any such
postponements or adjournments pursuant to either or both of the preceding clauses (x) and (y).
(ii) Notwithstanding
any Parent Change in Recommendation, Parent shall seek the Parent Stockholder Approval at the Parent Stockholders Meeting unless this
Agreement is terminated in accordance with Article VII prior to the Parent Stockholders Meeting. Without the prior written
consent of the Company, the Parent Share Issuance shall be the only matter (other than matters of procedure and matters required by Law
to be voted on by the Company’s stockholders in connection with the approval of the Parent Share Issuance) that Parent shall propose
to be acted on by the stockholders of Parent at the Parent Stockholders Meeting.
5.6 Regulatory
Cooperation.(a) Parent
and the Company shall use their respective commercially reasonable efforts to (i) take, or cause to be taken, all actions
necessary to consummate the Merger and make effective the other transactions contemplated hereby; (ii) make all filings (if
any) and give all notices (if any) required to be made and given by such Party in connection with the Merger and the other
transactions contemplated hereby (iii) obtain each Consent (if any) required to be obtained (pursuant to any applicable Law or
Contract, or otherwise) by such Party in connection with the Merger or any of the other transactions contemplated hereby, including
promptly seeking all such actions or nonactions, waivers, authorizations, expirations or terminations of waiting periods,
clearances, consents and approvals required under any Antitrust Law.
(b) Without
limiting the foregoing, each Party shall use its commercially reasonable efforts (i) to cooperate with the other and to file or otherwise
submit, as soon as practicable, all applications, notices, reports, filings and other documents required to be filed by such Party with
or otherwise submitted by such Party to any Governmental Entity with respect to the transactions contemplated hereby under applicable
Law, (ii) to respond promptly to requests for information or documentary material requested by any Governmental Entity, (iii) to
keep the other Party promptly informed of any communication from or to any Governmental Entity and (iv) to consummate and make effective
in the most expeditious manner practicable the transactions contemplated by this Agreement. Parent shall, on behalf of the Parties, control
and lead all communications and strategy relating to any filing, submission, investigation or litigation in connection with any applicable
Antitrust Laws or Legal Proceeding, considering in good faith the views of the Company.
5.7 Access.
During the Pre-Closing Period, upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company
and Parent shall, and shall cause each of its Subsidiaries to, afford the other Party’s Representatives reasonable access (at the
requesting Party’s cost) under the supervision of appropriate personnel of the other Party, during normal business hours, to the
other Party’s, and each of its Subsidiaries’ employees, properties, assets, books and records and Contracts and, during such
period, each of the Company and Parent shall, and shall cause each of its Subsidiaries to, furnish promptly to the other all information
concerning its or any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by the other; provided,
that no investigation pursuant to this Section 5.7 shall affect or be deemed to modify any representation or warranty made
by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit
any invasive sampling or testing or to disclose any information pursuant to this Section 5.7 to the extent that (i) in
the reasonable good faith judgment of such Party, any applicable Law requires such Party or its Subsidiaries to restrict or prohibit access
to any such properties or information, (ii) in the reasonable good faith judgment of such Party, the information is subject to confidentiality
obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client
privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.7,
Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such
third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such
matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement
appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection,
including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect
to any information to be so provided, if the Parties determine that doing so would reasonably permit the disclosure of such information
without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.7 shall be conducted
in such a manner as not to interfere unreasonably with the conduct of the business of the other Party. All requests for information made
pursuant to this Section 5.7 shall be directed in writing to an executive officer of the Company or Parent, as applicable,
or such Person as may be designated by any such executive officer.
5.8 Stock
Exchange Listing, De-listing and De-registration.
(a) Parent
shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued in the Merger to be approved for listing
on Nasdaq, subject to official notice of issuance, prior to the Effective Time.
(b) The
Company shall take all actions necessary to permit the Shares and any other security issued by the Company or one of its Subsidiaries
and listed on Nasdaq to be de-listed from Nasdaq and de-registered under the Exchange Act as soon as possible following the Effective
Time.
5.9 Publicity.
The initial press release with respect to the Merger and the other transactions contemplated hereby shall be a joint press release and
thereafter the Company and Parent shall consult with each other prior to issuing or making, and provide each other the reasonable opportunity
to review and comment on, any press releases or other public announcements with respect to the Merger and the other transactions contemplated
by this Agreement and any filings with any Governmental Entity (including any national securities exchange) with respect thereto, except
(a) as may be required by applicable Law or by obligations pursuant to any listing agreement with or rules of any national securities
exchange, (b) any press release or public statement that in the good faith judgment of the applicable Party is consistent with prior
press releases issued or public statements made in compliance with this Section 5.9, (c) any internal announcements to
employees regarding the Merger, so long as such statements are consistent with previous press releases, public disclosures or public statements
made jointly by the Parties (or individually, if approved by the other Party), or (d) with respect to any Company Change in Recommendation
or Parent Change in Recommendation made in accordance with this Agreement or the other Party’s response thereto. During the Pre-Closing
Period, the Company and Parent shall consult in good faith with each other prior to issuing or making, and provide each other the reasonable
opportunity to review, any press releases or other public announcements with respect to such Party’s clinical or preclinical studies,
tests or trials or other material information regarding its products or product candidates.
5.10 Expenses.
Except as otherwise provided in Section 7.5 and Section 7.6, whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the Merger and the other transactions contemplated by this Agreement shall
be paid by the Party incurring such expense.
5.11 Indemnification;
Directors’ and Officers’ Insurance.
(a) All
rights to indemnification by the Company existing in favor of those Persons who are current or former directors and officers of the Company,
and any person who becomes a director or officer of it prior to the Effective Time (the “Indemnified Persons”) for
their acts and omissions as directors and officers of the Company occurring prior to the Effective Time, as provided in the Company Charter
and Company Bylaws and as provided in any indemnification agreements between the Company and said Indemnified Persons (as in effect as
of the date of this Agreement), shall survive the Merger and be observed, honored and fulfilled, in all respects, by the Surviving Corporation
and its Subsidiaries (and Parent shall cause such observance and performance) to the fullest extent permitted by Delaware Law for a period
of six (6) years from the date on which the Merger becomes effective (the “Indemnification Period”). In addition,
during the Indemnification Period, each of the Surviving Corporation and its Subsidiaries will (and Parent will cause the Company and
its Subsidiaries to) cause its certificate of incorporation, bylaws and other similar organizational documents to contain provisions with
respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation
and advancement of expenses provisions set forth in the Company Charter and Company Bylaws, as applicable. During the Indemnification
Period or such period in which an Indemnified Person is asserting a claim for indemnification pursuant to this Section 5.11,
whichever is longer, such provisions may not be repealed, amended or otherwise modified in any manner adverse to any applicable Indemnified
Persons except as required by applicable Law.
(b) Without
limiting the generality of Section 5.11(a) and without expanding (1) the obligations of Parent or its Affiliates
(including the Surviving Corporation), or (2) the rights of any Indemnified Person, under the Company Charter, Company Bylaws or
the other similar organizational documents of the Subsidiaries of the Company or any indemnification agreement between the Company and
an Indemnified Person (as in effect as of the date of this Agreement and as set forth on Section 5.11(b) of the Company
Disclosure Letter), during the Indemnification Period, the Surviving Corporation will (and Parent will cause the Surviving Corporation
to) indemnify and hold harmless, in accordance with provisions set forth in the Company Charter, the Company Bylaws or the other similar
organizational documents of the Subsidiaries of the Company, as applicable, as of the date of this Agreement, or pursuant to any indemnification
agreements with the Company or any of its Subsidiaries in effect as of the date of this Agreement, each Indemnified Person from and against
any costs, fees and expenses (including the advancement of attorneys’ fees and investigation expenses), judgments, fines, losses,
claims, damages, liabilities and amounts paid in settlement or compromise in connection with any Legal Proceeding, whether civil, criminal,
administrative or investigative, to the extent that such Legal Proceeding arises, directly or indirectly, out of or pertains, directly
or indirectly, to (i) any action or omission, or alleged action or omission, in such Indemnified Person’s capacity as a director,
officer, employee or agent of the Company or any of its Subsidiaries (for their acts and omissions occurring prior to the Effective Time);
and (ii) the Merger, as well as any actions taken by the Company, Parent, or Merger Sub with respect to the Merger (in each case
with respect to acts and omissions occurring prior to the Effective Time). Notwithstanding the foregoing, if, at any time prior to the
sixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim
for indemnification pursuant to this Section 5.11(b), then the claim asserted in such notice will survive the sixth (6th)
anniversary of the Effective Time until such claim is fully and finally resolved.
(c) Prior
to the Effective Time, the Company shall purchase, at its expense, a six (6) year “tail” policy (the “Tail Policy”)
for the D&O Insurance maintained by the Company as of the date of this Agreement in the form delivered or made available by the Company
to Parent prior to the date of this Agreement at a premium not to exceed 300% of the annual premiums currently paid by the Company for
such insurance. The Surviving Corporation will (and Parent will cause the Surviving Corporation to) maintain the Tail Policy in full force
and effect and continue to honor its obligations thereunder for so long as the Tail Policy is in full force and effect. Notwithstanding
the foregoing, if the Company, in its good faith exercise of commercially reasonable efforts, is unable to purchase a “tail”
coverage on the terms and at a premium described in this Section 5.11(c), then, for a period of six (6) years after the
Effective Time, Parent shall cause to be maintained in effect for the benefit of the Indemnified Persons directors’ and officers’
liability insurance coverage with limits and on terms and conditions no less favorable to the Indemnified Persons than the D&O Insurance.
(d) The
obligations set forth in this Section 5.11 may not be terminated, amended or otherwise modified in any manner that adversely
affects any Indemnified Person (and his or her heirs and representatives) without the prior written consent of such affected Indemnified
Person (or his or her heirs and representatives). Each of the Indemnified Persons (and his or her heirs and representatives) who are beneficiaries
pursuant to the Tail Policy are intended to be third party beneficiaries of this Section 5.11, with full rights of enforcement.
The rights of the Indemnified Persons (and his or her heirs and representatives) pursuant to this Section 5.11 will be in
addition to, and not in substitution for, any other rights that such persons may have pursuant to (i) the Company Charter and Company
Bylaws, (ii) the similar organizational documents of the Subsidiaries of the Company, (iii) any and all indemnification agreements
entered into with the Company or any of its Subsidiaries (as in effect as of the date of this Agreement and as set forth on Section 5.11(b) of
the Company Disclosure Letter) or (iv) applicable Law.
(e) In
the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into
any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers
all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall ensure that the successors
and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations
set forth in this Section 5.11.
5.12 Takeover
Statutes. The Company and the Company Board and Parent and the Parent Board shall use their respective reasonable best efforts to
(a) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes
applicable to this Agreement or the transactions contemplated hereby and (b) if any state takeover statute or similar statute or
regulation becomes applicable to this Agreement or the transactions contemplated hereby, take all action reasonably appropriate to ensure
that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement.
5.13 Section 16(b).
The Company Board and the Parent Board (or, in each case, a duly authorized committee thereof) shall, prior to the Effective Time, take
all such actions within its control as may be necessary or appropriate to cause the transactions contemplated by this Agreement and any
other dispositions of equity securities of the Company and acquisitions of equity securities of Parent (including derivative securities)
in connection with the transactions contemplated by this Agreement by each individual who is a director or executive officer of the Company
or is or may become a director or executive officer of Parent in connection with the transactions contemplated hereby to be exempt under
Rule 16b-3 promulgated under the Exchange Act.
5.14 Stockholder
Litigation.
(a) The
Company and Parent shall notify the other, in writing and promptly after acquiring Knowledge thereof, of any Legal Proceeding related
to this Agreement, the Merger or the other transactions contemplated hereby that is brought against or, to the Knowledge of the Company
or Parent, threatened against, the Company, Parent, and of their respective Subsidiaries or any of their respective directors or officers
and shall keep the other Party informed on a reasonably current basis with respect to the status thereof. Each Party shall provide the
other (a) the opportunity to participate in the defense of any such Legal Proceedings relating to stockholder litigation and (b) the
right to review and comment on all material filings or responses to be made by the Company or Parent, as applicable, in connection with
any such Legal Proceedings (and the Company or Parent, as applicable, shall in good faith take such comments and other advice into consideration).
The Parties agree to cooperate in the defense and settlement of any such Legal Proceedings, and the Company shall not settle any such
Legal Proceeding without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed).
(b) For
purposes of this Section 5.14, “participate” means that the other Party will be kept reasonably apprised
of proposed strategy and other significant decisions with respect to any applicable Legal Proceeding by the Company or Parent, as applicable
(to the extent the attorney-client privilege between such Party and its counsel is not undermined or otherwise affected), and will have
the right to review and comment on all material filings or responses to be made in connection with any such Legal Proceeding (and the
other Party shall in good faith take such comments and other advice into consideration), but will not be afforded any decision-making
power or authority over such Legal Proceeding, except for the right to consent to any settlement as set forth in this Section 5.14.
5.15 Certain
Tax Matters.
(a) FIRPTA
Certificate. At or prior to the Closing, the Company shall provide to Parent a properly executed certificate pursuant to Treasury
Regulations Sections 1.1445-2(c) and 1.897-2(h), together with a form of notice to the IRS in accordance with the requirements
of Treasury Regulations Section 1.897-2(h), certifying that no interest in the Company is, or has been during the relevant period
specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of
the Code, in each case, in form and substance reasonably acceptable to Parent; provided, however, that Parent’s sole
recourse with respect to the failure of the Company to comply with this Section 5.15(a) shall be to withhold the appropriate
Taxes from the Merger Consideration as required by applicable Law.
(b) Intended
Tax Treatment. The Parties intend that, for United States federal income tax purposes, the Merger will qualify as a “reorganization”
within the meaning of Section 368(a) of the Code to which each of Parent, the Company and Merger Sub are to be parties under
Section 368(b) of the Code and this Agreement is intended to be, and is adopted as, a plan of reorganization for purposes of
Sections 354, 361 and 368 of the Code and within the meaning of Treasury Regulations Section 1.368-2(g). The Merger shall be
reported by the parties for all Tax purposes in accordance with the foregoing, unless otherwise required by a Governmental Entity following
a diligently contested audit. The Parties shall cooperate with each other and their respective counsel to document the Intended Tax Treatment.
In the event that the Company requests, or the SEC requests or requires, a tax opinion with respect to any discussion in the Form S-4
of the United States federal income tax consequences to the Company stockholders of the transactions contemplated by this Agreement, such
tax opinion shall be provided by Fenwick & West LLP (or other nationally recognized law firm reasonably acceptable to the Company
and Parent) at a “more likely than not” or higher level of assurance, and each of Parent and the Company shall execute and
deliver tax representation letters, in the form attached as Exhibit B, to Fenwick & West LLP (or such other counsel)
upon which it shall be entitled to rely in rendering such tax opinion.
5.16 Post-Closing
Board of Directors. The Parties shall take all actions that are reasonably necessary such that, from and after the Effective Time,
(1) the Parent Board shall be increased to nine (9) individuals (the “Parent Board Expansion”) and (2) the
individuals listed on Schedule 5.16 are elected or appointed, as applicable, to the positions of directors of Parent to serve
in such positions effective as of the Effective Time until successors are duly appointed and qualified in accordance with applicable Law
and Parent’s Organizational Documents. If any individual listed on Schedule 5.16 is unable or unwilling to serve as
a director of Parent, the Company shall promptly, and in any event at least at least 20 Business Days prior to the Closing Date,
designate a successor to such individual (which successor shall be reasonably acceptable to Parent).
5.17 Termination
of Company Plans. The Company shall take any and all actions required (including, without limitation, the adoption of resolutions
by the Company Board of Directors, which shall be subject to approval by Parent) to terminate the Company ESPP, Company Stock Plans, and
to amend, suspend or terminate any other Company Plan Parent so requests (which request shall be made not less than ten (10) Business
Days prior to the Effective Time), in each case effective immediately prior to the Effective Time to the extent such actions are permitted
by Law (including any required prior notice obligations).
5.18 Employee
Matters.
(a) Parent
Severance Obligations. Parent agrees to assume all the obligations of the Company under the Company Severance Plan with respect to
any Company Employee who is subject to an Involuntary Termination (as defined in the Company Severance Plan) during the period commencing
three months prior to the Closing Date and ending on the first (1st) anniversary following the Closing Date.
(b) Post-Closing
Protection Period. For the period commencing on the Effective Time and ending on the earlier of (A) the first (1st) anniversary
of the Effective Time and (B) the date of termination of the Company Employee (such earlier period, the “Continuation Period”),
Parent shall cause the Surviving Corporation or its Affiliates to provide to each current Company Employee as of the Effective Time who
remains so employed immediately after the Effective Time (“Company Employees”) (i) base compensation and annual
target bonus that, in each case, is no less favorable than was provided to the Company Employees immediately before the Effective Time
and (ii) employee benefits (other than stock purchase plans, change in control, transaction, nonqualified deferred compensation,
defined benefit pension, profit sharing or employer matching contributions to a defined contribution pension plan or post-employment welfare
plans or arrangements) that are substantially comparable in the aggregate to those that were provided to the Company Employee immediately
before the Effective Time under the Company Benefit Plans set forth on Section 3.12(a) of the Company Disclosure Letter
(subject to the same exclusions); provided, however, that nothing set forth in this Section 5.18 will require
Parent to provide compensation in the form of equity or equity-based compensation.
(c) Service
Crediting. For all purposes of vesting, eligibility to participate and level of benefits under the corresponding employee benefit
plans of Parent and its Subsidiaries providing benefits to any Company Employees after the Effective Time (the “New Plans”),
Parent shall use commercially reasonable efforts to cause each Company Employee to be credited with his or her years of service with the
Company and its Subsidiaries and their respective predecessors before the Effective Time, to the same extent and for the same purpose
as such Company Employee was entitled, before the Effective Time, to credit for such service under any similar Company Benefit Plan in
which such Company Employee participated or was eligible to participate immediately prior to the Effective Time; provided that
the foregoing shall not apply with respect to any defined benefit pension benefits or to the extent that its application would result
in a duplication of compensation or benefits. In addition, and without limiting the generality of the foregoing, (i) Parent shall
use commercially reasonable efforts to cause each Company Employee to be immediately eligible to participate, without any waiting time,
in any New Plans to the extent coverage under such New Plan is comparable to and replaces a Company Benefit Plan in which such Company
Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), and (ii) for
purposes of each New Plan providing medical, dental, pharmaceutical, and vision insurance benefits to any Company Employee, Parent shall
use commercially reasonable efforts to cause all preexisting condition exclusions and actively-at-work requirements of such New Plan to
be waived for such employee and his or her covered dependents, unless such conditions would not have been waived or satisfied under the
comparable plans of the Company or its Subsidiaries in which such employee participated immediately prior to the Effective Time, and Parent
shall use commercially reasonable efforts to cause any eligible expenses incurred by such employee and his or her covered dependents during
the portion of the plan year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins
to be taken into account under such New Plan for purposes of satisfying the corresponding deductible, coinsurance and maximum out-of-pocket
requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid
in accordance with such New Plan to the extent such amounts were credited to such person for the same purpose under the Old Plan.
(d) No
Employment Commitments. Without limiting the generality of Section 8.10, the provisions of this Section 5.18
are solely for the benefit of the Parties to this Agreement, and (i) no current or former director, employee or consultant or any
other person shall be a third-party beneficiary of this Agreement, (ii) nothing herein shall be construed as an amendment to, or
the establishment, modification or termination of, any Company Benefit Plan or other compensation or benefit plan or arrangement for any
purpose, (iii) subject to compliance with this Section 5.18, nothing herein shall alter or limit Parent’s, the
Company's or any of their Affiliates’ ability to amend, modify or terminate any particular benefit plan, program, agreement or arrangement,
and (iv) nothing herein shall confer upon any current or former employee any right to employment or continued employment for any
period of time by reason of this Agreement, or any right to a particular term or condition of employment.
Article VI
CONDITIONS
6.1 Conditions
to Each Party’s Obligation to Effect the Merger. The respective obligation of each Party to effect the Merger is subject to
the satisfaction (or waiver by Parent and the Company) at or prior to the Closing of each of the following conditions:
(a) Stockholder
Approvals. (i) The Company Stockholder Approval shall have been obtained in accordance with applicable Law, the Company Charter
and the Company Bylaws and (ii) the Parent Stockholder Approval shall have been obtained in accordance with applicable Law, the Parent
Charter and the Parent Bylaws.
(b) Law;
Judgment. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or
Judgment (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of
the Merger.
(c) Nasdaq
Listing. The shares of Parent Common Stock issuable in connection with the Merger shall have been approved for listing on Nasdaq,
subject to official notice of issuance.
(d) Form S-4.
The Form S-4 shall have been declared effective by the SEC under the Securities Act, and no stop order suspending the effectiveness
of the Form S-4 shall have been issued.
6.2 Conditions
to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction
(or waiver by Parent) at or prior to the Closing of the following conditions:
(a) Representations
and Warranties. (i) The representations and warranties of the Company contained in this Agreement (except for the representations
and warranties contained in Sections 3.1 (Organization, Good Standing and Qualification), 3.3 (Capital Structure),
3.4 (Corporate Authority and Approval), 3.8(a) and 3.8(c) (Absence of Changes), 3.22
(Brokers and Finders) and 3.23 (Opinion of Financial Advisor)) shall be true and correct in all respects at and as
of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent such representation
or warranty is expressly made as of an earlier date, in which case, as of such earlier date), except where the failure of such representations
and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material
Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a
Company Material Adverse Effect; (ii) the representations and warranties of the Company contained in Sections 3.1 (Organization,
Good Standing and Qualification), 3.3 (Capital Structure) (other than Section 3.3(a) and 3.3(d)),
3.4 (Corporate Authority and Approval), 3.22 (Brokers and Finders) and 3.23 (Opinion of Financial
Advisor) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date
as if made at and as of such time (except to the extent such representation or warranty is expressly made as of an earlier date, in which
case, as of such earlier date); (iii) the representations and warranties of the Company contained in Section 3.3(a) and
3.3(d) (Capital Structure) shall be true and correct in all respects, except for de minimis inaccuracies, at
and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent such representation
or warranty is expressly made as of an earlier date, in which case, as of such earlier date); and (iv) the representations and warranties
of the Company contained in Section 3.8(a) and 3.8(c) (Absence of Changes) shall be true and correct
in all respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to
the extent such representation or warranty is expressly made as of an earlier date, in which case, as of such earlier date).
(b) Performance
of Obligations of the Company. The Company shall have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing.
(c) No
Company Material Adverse Effect. After the date of this Agreement, there shall not have occurred any Effect that, individually or
in the aggregate with all other Effects, has resulted in a Company Material Adverse Effect.
(d) Company
Certificate. Parent shall have received at the Closing a certificate signed on behalf of the Company by a senior executive officer
of the Company to the effect that the conditions set forth in Sections 6.2(a), 6.2(b) and 6.2(c) have
been satisfied.
6.3 Conditions
to Obligation of the Company. The obligation of the Company to effect the Merger is also subject to the satisfaction (or waiver by
the Company) at or prior to the Closing of the following conditions:
(a) Representations
and Warranties. (i) The representations and warranties of Parent contained in this Agreement (except for the representations
and warranties contained in Sections 4.1 (Organization, Good Standing and Qualification), 4.3 (Capital Structure),
4.4 (Corporate Authority and Approval), Section 4.8(a) (Absence of Changes), 4.23 (Brokers
and Finders) and 4.24 (Opinion of Financial Advisor)) shall be true and correct in all respects at and as of the date
of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent such representation or warranty
is expressly made as of an earlier date, in which case, as of such earlier date), except where the failure of such representations and
warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse
Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Parent
Material Adverse Effect; (ii) the representations and warranties of Parent contained in Sections 4.1 (Organization,
Good Standing and Qualification), 4.3 (Capital Structure) (other than Section 4.3(a), 4.3(c) and
4.3(d)), 4.4 (Corporate Authority and Approval), 4.23 (Brokers and Finders) and 4.24 (Opinion
of Financial Advisor) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of
the Closing Date as if made at and as of such time (except to the extent such representation or warranty is expressly made as of an earlier
date, in which case, as of such earlier date); and (iii) the representations and warranties of Parent contained Section 4.3(a),
4.3(c) and 4.3(d) (Capital Structure) shall be true and correct in all respects, except for de minimis
inaccuracies, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the
extent such representation or warranty is expressly made as of an earlier date, in which case, as of such earlier date); and (iv) the
representations and warranties contained in Section 4.8(a) (Absence of Changes) shall be true and correct in all
respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent
such representation or warranty is expressly made as of an earlier date, in which case, as of such earlier date).
(b) Performance
of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the Closing.
(c) No
Parent Material Adverse Effect. After the date of this Agreement, there shall not have occurred any Effect that, individually or in
the aggregate with all other Effects, has resulted in a Parent Material Adverse Effect.
(d) Parent
Certificate. The Company shall have received at the Closing a certificate signed on behalf of Parent by a senior executive officer
of Parent to the effect that the conditions set forth in Sections 6.3(a), 6.3(b) and 6.3(c) have been
satisfied.
(e) Parent
Board Expansion. The Company shall have received evidence of the Parent Board Expansion.
6.4 Frustration
of Conditions. None of the Company, Parent or Merger Sub may rely, either as a basis for not consummating the Merger or the other
transactions or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in this Article VI,
as the case may be, to be satisfied if such failure was caused by such Party’s material breach of any provision of this Agreement.
Article VII
TERMINATION
7.1 Termination
by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether
before or after the date of the Company Stockholder Approval and the Parent Stockholder Approval, by mutual written consent of Parent
and the Company.
7.2 Termination
by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective
Time by either Parent or the Company if:
(a) the
Merger shall not have been consummated by 11:59 p.m. Eastern Time on July 7, 2025 (the “Termination Date”);
provided, however, that the right to terminate this Agreement under this Section 7.2(a) shall not be available
to any party whose material breach of any provision of this Agreement has been the cause of, or resulted in, the failure of the Merger
to be consummated by the Termination Date;
(b) the
Company Stockholder Approval shall not have been obtained at a meeting duly convened therefor or at any adjournment or postponement thereof
at which a vote upon the adoption of this Agreement was taken; provided, however, that the right to terminate this Agreement under
this Section 7.2(b) shall not be available to the Company if its material breach of any provision of this Agreement has
been the cause of, or resulted in, the failure to obtain the Company Stockholder Approval;
(c) the
Parent Stockholder Approval shall not have been obtained at a meeting duly convened therefor or at any adjournment or postponement thereof
at which a vote upon the issuance of the Parent Common Stock in connection with the Merger was taken; provided, however, that the
right to terminate this Agreement under this Section 7.2(c) shall not be available to Parent if its material breach of
any provision of this Agreement has been the cause of, or resulted in, the failure to obtain the Parent Stockholder Approval; or
(d) any
Law or Judgment permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable,
whether before or after the date of the Company Stockholder Approval and Parent Stockholder Approval; provided, that the right
to terminate this Agreement under this Section 7.2(d) shall not be available to any Party if its material breach of any
provision of this Agreement has been the cause of, or resulted in the failure of the Merger to be consummated.
7.3 Termination
by the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by the Company
if:
(a) at
any time prior to the Parent Stockholder Approval having been obtained, (i) the Parent Board shall have made a Parent Change in Recommendation;
(ii) Parent shall have failed to include the Parent Board Recommendation in the Joint Proxy Statement/Prospectus mailed to its stockholders;
(iii) the Parent Board shall have failed to publicly reaffirm its recommendation to approve the Parent Board Recommendation within
ten (10) Business Days after the Company so requests in writing following the public disclosure of any Parent Acquisition Proposal
with any Person other than the Company (provided, that the Company shall only be able to make such request twice); (iv) a
tender offer or exchange offer for outstanding shares of Parent Capital Stock shall have been commenced (other than by the Company or
an Affiliate of Company) and the Parent Board shall have recommended that the stockholders of Parent tender their shares in such tender
or exchange offer or, within ten (10) Business Days after the commencement of such tender or exchange offer, the Parent Board shall
have failed to recommend against acceptance of such offer; or (v) Parent shall have materially breached or shall have failed to perform
in any material respect its obligations set forth in Section 5.3;
(b) at
any time prior to the Effective Time, whether before or after the Company Stockholder Approval is obtained, by action of the Company Board
if there has been a breach of any representation, warranty, covenant or agreement made by Parent or Merger Sub in this Agreement, or any
such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Section 6.3(a) or
Section 6.3(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured
prior to the earlier of: (i) 30 days following notice to Parent from the Company of such breach or failure and (ii) the
date that is three (3) Business Days prior to the Termination Date; provided, that the Company shall not have the right to
terminate this Agreement pursuant to this Section 7.3(b) if the Company is then in material breach of any of its representations,
warranties, covenants or agreements under this Agreement; or
(c) at
any time prior to the Company Stockholder Approval being obtained, (i) the Company Board authorizes the Company to the extent permitted
by and subject to complying with the terms of Section 5.2, to enter into a binding written definitive acquisition agreement
providing for the consummation of a transaction constituting a Company Superior Proposal that did not result from a breach of this Agreement;
(ii) concurrently with the termination of this Agreement, the Company, subject to complying with the terms of Section 5.2,
enters into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Company
Superior Proposal that did not result from a material breach of this Agreement; and (iii) prior to or concurrently with such termination,
the Company pays to Parent in immediately available funds any fees required to be paid pursuant Section 7.5.
7.4 Termination
by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by Parent if:
(a) at
any time prior to the Company Stockholder Approval having been obtained, (i) the Company Board shall have made a Company Change in
Recommendation; (ii) the Company shall have failed to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus
mailed to its stockholders; (iii) the Company Board shall have failed to publicly reaffirm its recommendation to approve the Company
Board Recommendation within ten (10) Business Days after Parent so requests in writing following the public disclosure of any Company
Acquisition Proposal with any Person other than Parent (provided, that Parent shall only be able to make such request twice); (iv) a
tender offer or exchange offer for outstanding Shares shall have been commenced (other than by Parent or an Affiliate of Parent) and the
Company Board shall have recommended that the stockholders of the Company tender their shares in such tender or exchange offer or, within
ten (10) Business Days after the commencement of such tender or exchange offer, the Company Board shall have failed to recommend
against acceptance of such offer; or (v) the Company shall have materially breached or shall have failed to perform in any material
respect its obligations set forth in Section 5.2;
(b) at
any time prior to the Effective Time, whether before or after the Parent Stockholder Approval is obtained, by action of the Parent Board,
if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation
and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Section 6.2(a) or
Section 6.2(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured
prior to the earlier of: (i) 30 days following notice to the Company from Parent of such breach or failure and (ii) the
date that is three (3) Business Days prior to the Termination Date; provided, that Parent shall not have the right to terminate
this Agreement pursuant to this Section 7.4(b) if Parent is then in material breach of any of its representations, warranties,
covenants or agreements under this Agreement; or
(c) at
any time prior to the Parent Stockholder Approval being obtained, (i) the Parent Board authorizes Parent, to the extent permitted
by and subject to complying with the terms of Section 5.3, to enter into a binding written definitive acquisition agreement
providing for the consummation of a transaction constituting a Parent Superior Proposal that did not result from a breach of this Agreement;
(ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.3,
enters into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Parent Superior
Proposal that did not result from a material breach of this Agreement; and (iii) prior to or concurrently with such termination,
Parent pays to Company in immediately available funds any fees required to be paid pursuant Section 7.6.
7.5 Company
Termination Fee.
(a) If
this Agreement is terminated (x) by Parent pursuant to Section 7.4(a) (Company Change in Recommendation)
or (y) by the Company pursuant to Section 7.3(c) (Company Superior Proposal), then the Company shall, within
two (2) Business Days after such termination in the case of clause (x) or concurrently with such termination in the case
of clause (y), pay to Parent the Company Termination Fee in immediately available funds by wire transfer.
(b) If
(i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or
Section 7.2(b) (Company Stockholder Approval) or by Parent pursuant to Section 7.4(b) (Company
Breach); (ii) prior to such termination but after the date of this Agreement, a bona fide Company Acquisition Proposal
has been publicly announced or publicly disclosed to the Company or its stockholders and not publicly withdrawn; and (iii) within
12 months after the date of such termination, the Company consummates a Company Acquisition Proposal or enters into an agreement
contemplating a Company Acquisition Proposal which is subsequently consummated, then the Company shall pay the Company Termination Fee
concurrently with such consummation to Parent in immediately available funds by wire transfer; provided, that, solely for purposes
of this Section 7.5(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in
Section 5.2(d), except that the references to “15%” shall be deemed to be references to “50%.” In
no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
7.6 Parent
Termination Fee.
(a) If
this Agreement is terminated (x) by the Company pursuant to Section 7.3(a) (Parent Change in Recommendation)
or (y) by Parent pursuant to Section 7.4(c) (Parent Superior Proposal), then Parent shall, within two (2) Business
Days after such termination in the case of clause (x) or concurrently with such termination in the case of clause (y),
pay to the Company the Parent Termination Fee in immediately available funds by wire transfer.
(b) If
(i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or
Section 7.2(c) (Parent Stockholder Approval) or by the Company pursuant to Section 7.3(b) (Parent
Breach), (ii) prior to such termination but after the date of this Agreement, a bona fide Parent Acquisition Proposal
has been publicly made or publicly disclosed to Parent or its stockholders and not publicly withdrawn; and (iii) within 12 months
after the date of such termination, Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent
Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Termination Fee to the Company concurrently with
such consummation in immediately available funds by wire transfer; provided, that, solely for purposes of this Section 7.6(b),
the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(d), except
that the references to “15%” shall be deemed to be references to “50%.” In no event shall Parent be required to
pay the Parent Termination Fee on more than one occasion.
7.7 Effect
of Termination and Abandonment. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VII,
this Agreement (other than as set forth in this Section 7.7 and in Section 8.1 (Survival)) shall become
void and of no effect with no liability on the part of any Party (or of any of its respective Representatives); provided, that
no such termination shall relieve any Party (x) from any liability for Fraud or Willful Breach of this Agreement prior to such termination
and (y) from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 7.5 or the Parent
Termination Fee pursuant to Section 7.6, as applicable. For purposes of this Agreement, the term “Willful Breach”
means a deliberate act or a deliberate failure to act, taken or not taken with the actual knowledge that such act or failure to act would,
or would reasonably be expected to, result in or constitute a material breach of this Agreement, regardless of whether breaching was the
object of the act or failure to act.
7.8 Remedies.
(a) Each
Party acknowledges that the agreements contained in Section 7.5 and Section 7.6 are an integral part of the transactions
contemplated by this Agreement, and that, without such agreements, no Party would have entered into this Agreement; accordingly, (i) if
the Company fails to promptly pay the Company Termination Fee in accordance with Section 7.5, and, in order to obtain such
Company Termination Fee, Parent commences a suit which results in a judgment against the Company, the Company shall pay to Parent its
costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the Company Termination Fee
at the prime rate in effect on the date the Company Termination Fee was required to be paid through the date of full payment thereof and
(ii) if Parent fails to promptly pay the Parent Termination Fee in accordance with Section 7.6 and, in order to obtain
such Parent Termination Fee, the Company commences a suit which results in a judgment against Parent, Parent shall pay to the Company
its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the Parent Termination
Fee at the prime rate in effect on the date the Parent Termination Fee was required to be paid through the date of full payment thereof.
(b) The
Parties agree that the monetary remedies set forth in Section 7.5, Section 7.6, this Section 7.8 and
the specific performance remedies set forth in Section 8.7 (Specific Performance) shall be the sole and exclusive remedies
of (i) the Company and the Company Subsidiaries against Parent, Merger Sub and any of their respective former, current or future
general or limited partners, shareholders, equityholders, managers, members, Representatives or Affiliates for any loss suffered as a
result of the failure of the Merger to be consummated, except in the case of Fraud or a Willful Breach of any covenant, agreement or obligation
(in which case only Parent shall be liable for damages for such Fraud or Willful Breach), and upon payment of such amount, none of Parent,
Merger Sub or any of their respective former, current or future general or limited partners, shareholders, equityholders, managers, members,
Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions
contemplated by this Agreement, except for the liability of Parent in the case of Fraud or a Willful Breach of any covenant, agreement
or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current
or future general or limited partners, shareholders, equityholders, managers, members, Representatives or Affiliates for any loss suffered
as a result of the failure of the transactions contemplated by this Agreement to be consummated, except in the case of Fraud or a Willful
Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such Fraud or Willful
Breach), and upon payment of such amount, none of the Company and the Company Subsidiaries or any of their respective former, current
or future general or limited partners, shareholders, equityholders, managers, members, Representatives or Affiliates shall have any further
liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, except for the
liability of the Company in the case of Fraud or a Willful Breach of any covenant, agreement or obligation.
Article VIII
MISCELLANEOUS
8.1 Survival.
This Article VIII and the agreements of the Company, Parent and Merger Sub in Section 5.10 (Expenses),
and Section 5.11 (Indemnification; Directors’ and Officers’ Insurance) shall survive the consummation of
the Merger. This Article VIII (other than Section 8.2 (Amendment), Section 8.3 (Waiver)
and Section 8.4 (Assignment)) and the agreements of the Company, Parent and Merger Sub contained in Section 5.10
(Expenses), Section 7.7 (Effect of Termination and Abandonment), Section 7.8 (Remedies) and
the Confidentiality Agreement shall survive the termination of this Agreement. All other representations, warranties, covenants and agreements
in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the consummation of the Merger or
the termination of this Agreement. This Section 8.1 shall not limit any covenant or agreement of the Parties which by its
terms contemplates performance after the Effective Time.
8.2 Amendment.
Subject to the provisions of applicable Law, at any time prior to the Effective Time, this Agreement (including any Exhibit, Annex, Appendix
or Schedule hereto) may be amended, modified or supplemented solely in writing by the Parties.
8.3 Waiver.
(a) Any
provision of this Agreement may be waived prior to the Effective Time if, and only if, such waiver is in writing and signed by the Party
or Parties against whom the waiver is to be effective; provided, however, that (a) after the Company Stockholder Approval
has been obtained, no amendment shall be made which by applicable Law would require further approval of the stockholders of the Company
without the further approval of such stockholders; and (b) after the Parent Stockholder Approval has been obtained, no amendment
shall be made which by applicable Law would require further approval of the stockholders of Parent without the further approval of such
stockholders.
(b) No
failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except
as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by applicable Law.
8.4 Assignment.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or
in part, by operation of law or otherwise by any of the Parties without the prior written consent of the other parties, and any such assignment
without such prior written consent shall be null and void.
8.5 Counterparts;
Effectiveness; Electronic Signature. This Agreement may be executed in any number of counterparts, each such counterpart being deemed
to be an original instrument, and all such counterparts shall together constitute the same agreement, and shall become effective when
one or more counterparts have been signed by each of the Parties and delivered to the other Parties. This Agreement may be executed by.pdf
or Docusign (or similar electronic application) signature and a .pdf or Docusign (or similar electronic application) signature shall constitute
an original for all purposes.
8.6 Governing
Law; Jurisdiction and Venue; WAIVER OF JURY TRIAL.
(a) This
Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the
law of the state of Delaware without regard to the conflict of law principles thereof.
(b) Each
of the Parties hereby irrevocably submits exclusively to the jurisdiction of the Court of Chancery of the State of Delaware (or in the
event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court
of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively
in the federal courts of the United States of America, the United States District Court for the District of Delaware) and hereby waives,
and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof
may not be appropriate or that this Agreement may not be enforced in or by such courts, and each of the Parties hereto irrevocably agrees
that all claims relating to such action, suit or proceeding shall be heard and determined in such a state or federal court. The Parties
hereby consent to and grant any such court jurisdiction over the Person of such Parties and over the subject matter of such dispute and
agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.8
or in such other manner as may be permitted by Law, shall be valid and sufficient service thereof.
(c) EACH
PARTY 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 ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 8.6.
8.7 Specific
Performance. The Parties acknowledge and agree that irreparable damage would occur and that the Parties would not have any adequate
remedy at Law if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached,
and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Parties shall
be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms
and provisions hereof in accordance with Section 8.6, without proof of actual damages (and each Party hereby waives any requirement
for the security or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are
entitled at Law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid,
contrary to applicable Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate
remedy for any such breach or that the Company or Parent otherwise have an adequate remedy at law.
8.8 Notices.
Any notice or other communication required or permitted to be delivered to a Party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received: (a) upon receipt when delivered by hand, (b) one (1) Business Days after
being sent by registered mail or by courier or express delivery service, (c) if sent by email transmission prior to 5:00 p.m. Eastern
Time, upon transmission thereof (provided that no bounceback or similar “undeliverable” message is received by such sender)
or (d) if sent by email transmission after 5:00 p.m. Eastern Time, the Business Day following the date of transmission
(provided that no bounceback or similar “undeliverable” message is received by such sender); provided, that, in each
case, the notice or other communication is sent to the physical address or email address, as applicable, set forth beneath the name of
such Party below:
if to Parent or Merger Sub:
Alumis Inc.
280 East Grand Avenue
South San Francisco, CA 94080
Attention: [***]
Email: [***]
with a copy (which shall not constitute
notice) to:
Cooley LLP
3 Embarcadero Center
20th Floor
San Francisco, CA 94111
Attention: Jamie Leigh; Ben Beerle; Polina
A. Demina
Email: jleigh@cooley.com; bbeerle@cooley.com;
pdemina@cooley.com
if to the Company:
ACELYRIN, Inc.
4149 Liberty Canyon Road
Agoura Hills, CA 91301
Attention: [***]
Email: [***]
with a copy (which shall not constitute
notice) to:
Fenwick & West LLP
902 Broadway
18th Floor
New York, NY 10010
Attention: Stefano Quintini; Ethan A.
Skerry; Jeremy R. Delman
Email: squintini@fenwick.com; eskerry@fenwick.com;
jdelman@fenwick.com
or to such other person, physical address
or email address as such Party shall have specified in a written notice given to the other Party in accordance with the notice provisions
hereof.
8.9 Entire
Agreement. This Agreement (and any Exhibit, Annex, Appendix or Schedule hereto, the Company Disclosure Letter and the Parent Disclosure
Letter) and the Confidentiality Agreement and the other documents and instruments executed pursuant hereto constitute the entire agreement,
and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the Parties, with
respect to the subject matter hereof.
8.10 No
Third Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the Parties any rights
or remedies hereunder, other than as provided in Section 5.11(d) (Indemnification; Directors’ and Officers’
Insurance).
8.11 Obligations
of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action, such requirement shall be
deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action. Whenever this Agreement requires
a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking on the part of the Company
to cause such Subsidiary to take such action and, after the Effective Time, on the part of the Surviving Corporation to cause such Subsidiary
to take such action.
8.12 Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the Parties
shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances
shall not, subject to clause (a), be affected by such invalidity or unenforceability, except as a result of such substitution, nor
shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
8.13 No
Other Representations and Warranties.(a) Except
for the representations and warranties of the Company contained in Article III, Parent and Merger Sub acknowledge that neither
the Company nor any Company Subsidiary is making and has not made, and no other Person is making or has made on behalf of the Company
or Company Subsidiaries, any express or implied representation or warranty in connection with this Agreement or the transactions contemplated
hereby. None of Parent or Merger Sub are relying and none of Parent or Merger Sub have relied on any representations or warranties whatsoever
regarding the subject matter of this Agreement, express or implied, except for the representations and warranties in Article III,
including the Company Disclosure Letter. Such representations and warranties by the Company constitute the sole and exclusive representations
and warranties of the Company and the Company Subsidiaries in connection with the transactions contemplated hereby and each of Parent
and Merger Sub understands, acknowledges and agrees that all other representations and warranties of any kind or nature whether express,
implied or statutory are specifically disclaimed by the Company and the Company Subsidiaries.
(b) Except
for the representations and warranties of Parent and Merger Sub contained in Article IV, the Company acknowledges that none
of Parent or Merger Sub are making or have made, and no other Person is making or has made on behalf of Parent or Merger Sub, any express
or implied representation or warranty in connection with this Agreement or the transactions contemplated hereby. The Company is not relying
and it has not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied,
except for the representations and warranties in Article IV, including the Parent Disclosure Letter. Such representations
and warranties by Parent and Merger Sub constitute the sole and exclusive representations and warranties of Parent and Merger Sub in connection
with the transactions contemplated hereby and the Company understands, acknowledges and agrees that all other representations and warranties
of any kind or nature whether express, implied or statutory are specifically disclaimed by Parent.
8.14 Interpretation;
Construction.
(a) The
following rules of interpretation shall apply to this Agreement:
(i) The
table of contents and the Article, Section and paragraph headings or captions herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.
(ii) Where
a reference in this Agreement is made to a Section, Exhibit, Annex, Appendix or Schedule hereto, such reference shall be to a Section of
or Exhibit, Annex, Appendix or Schedule to this Agreement unless otherwise indicated.
(iii) Whenever
the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.”
(iv) The
words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement.
(v) The
word “or” when used in this Agreement is not exclusive. The word “extent” in the phrase “to the extent”
shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”
(vi) The
words “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words
(including electronic media) in a visible form.
(vii) When
calculating the period of time before which, within which or following which any act is to be done or step taken, the date that is the
reference date in beginning the calculation of such period shall be excluded. If the last day of such period is a non-Business Day, the
period in question shall end on the next succeeding Business Day.
(viii) Any
capitalized term used in any Exhibit, Annex, Appendix or Schedule hereto, including the Company Disclosure Letter and the Parent Disclosure
Letter, or in any certificate or other document made or delivered pursuant hereto but not otherwise defined therein shall have the meaning
set forth in this Agreement.
(ix) The
definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such term.
(x) Any
Law or statute defined or referred to herein or in any certificate or other document made or delivered pursuant hereto shall be deemed
to refer to such Law or statute as amended, modified or supplemented from time to time and to any rules or regulations promulgated
thereunder as of the referenced time.
(xi) References
to any Person include the successors and permitted assigns of that Person.
(xii) References
“from” or “through” any date mean, unless otherwise specified, “from and including” or “through
and including,” respectively.
(xiii) References
to “dollars” and “$” means U.S. dollars.
(xiv) The
term “made available” and words of similar import mean that the relevant documents, instruments or materials were (A) with
respect to Parent, posted and made available to Parent on the Company due diligence data site (including in any “clean room”
or as otherwise provided on an “outside counsel only” basis), or, with respect to the Company, posted or made available to
the Company on the Parent due diligence data site (including in any “clean room” or as otherwise provided on an “outside
counsel only” basis), in each case, on or before 11:59 pm Eastern Time on the calendar day prior to the date hereof or (B) filed
or furnished to the SEC at least one (1) Business Day prior to the date hereof.
(b) The
Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
(c) The
Company Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained
in Article III, and the disclosure in any section of the Company Disclosure Letter shall be deemed to qualify other sections
in Article III to the extent that it is reasonably apparent on the face of such disclosure that such disclosure also qualifies
or applies to such other sections.
(d) The
Parent Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained
in Article IV, and the disclosure in any section of the Parent Disclosure Letter shall be deemed to qualify other sections
in Article IV to the extent that it is reasonably apparent on the face of such disclosure that such disclosure also qualifies
or applies to such other sections.
8.15 Certain
Definitions.
(a) For
all purposes of this Agreement, the following capitalized terms have the following respective meanings:
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such
Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms
“controlled” and “controlling” have meanings correlative thereto.
“Anti-Corruption
and Anti-Bribery Laws” means the FCPA or all other applicable United States or foreign anti-corruption or anti-bribery Laws.
“Antitrust
Laws” means the Sherman Antitrust Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act and all other federal, state and
foreign Laws and Judgments that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization
or restraint of trade or competition.
“Business
Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking and savings and loan institutions
are authorized or required by Law to be closed in San Francisco.
“Clinical
Trial” means any human clinical study of a pharmaceutical product.
“Code”
means the Internal Revenue Code of 1986.
“Commence”
means (a) with respect to any Clinical Trial not ongoing as of the date of this Agreement, the enrollment of the first subject for
participation in such Clinical Trial or (b) with respect to any separate stage of an ongoing Clinical Trial, the first dosing of
the first subject in such separate stage.
“Company
Affiliate” means any Person under common control with the Company within the meaning of Section 414(b), Section 414(c),
Section 414(m) or Section 414(o) of the Code.
“Company
Associate” means any director, officer, employee, independent contractor or consultant of or to the Company or any Company Subsidiary
or any Company Affiliate.
“Company
Audited Balance Sheet” means the audited consolidated balance sheet of the Company and its consolidated Subsidiaries as of December 31,
2023 included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
“Company
ESPP” means the Company’s 2023 Employee Stock Purchase Plan (as amended from time to time).
“Company
IP” means Company Owned IP and Company Licensed IP.
“Company
Licensed IP” means any Intellectual Property Rights that are exclusively licensed or purported
to be exclusively licensed to the Company or any Company Subsidiary, except, in each case, for Excluded IP Rights.
“Company
Material Adverse Effect” means a Material Adverse Effect with respect to the Company.
“Company
Option” means any option to purchase Shares (whether granted under any Company Stock Plan, assumed by the Company in connection
with any merger, acquisition or similar transaction or otherwise issued or granted).
“Company
Owned IP” shall mean all Intellectual Property Rights that are owned or purported to be
owned by the Company or any Company Subsidiary, except, in each case, for Excluded IP Rights.
“Company
Plan” means each (i) employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not
subject to ERISA; (ii) stock option plan, stock purchase plan, equity-related arrangement, retention plan or arrangement, bonus or
incentive award plan, severance pay plan, program or arrangement, deferred compensation arrangement or agreement, employment agreement,
retention arrangement, executive compensation plan, program, agreement or arrangement, change in control plan, program or arrangement,
supplemental income arrangement, retirement arrangement, profit sharing arrangement, vacation plan, paid leave or other paid time off
plan, employee loan and each other employee benefit plan, policy, program, agreement and arrangement (U.S. or non-U.S.) not described
in clause (i) above; and (iii) U.S. and non-U.S. plan or arrangement providing compensation to current and former employees,
directors and/or other service providers of the Company or any Company Subsidiary, in each case, that is maintained, sponsored or contributed
to, or required to be maintained, sponsored or contributed to, by the Company or any of its ERISA Affiliates under which compensation
or benefits are provided to current or former employees, director and/or other service providers of the Company or any Company Subsidiary
(or their spouses, dependents or beneficiaries) or with respect to which the Company or any Company Subsidiary has or may have any liability,
whether subject to U.S. or foreign Law. In the case of a Company Plan funded through a trust described in Section 401(a) of
the Code or an organization described in Section 501(c)(9) of the Code, or any other funding vehicle, each reference to such
Company Plan shall include a reference to such trust, organization or other vehicle.
“Company
PSU” means any restricted stock unit that is subject to vesting restrictions based on continuing service and performance metrics
(whether granted under any Company Stock Plan, assumed by the Company in connection with any merger, acquisition or similar transaction
or otherwise issued or granted).
“Company
RSU” means any restricted stock unit that is subject to vesting restrictions based on continuing service (whether granted under
any Company Stock Plan, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or
granted), excluding any Company PSU.
“Company
Severance Plan” means the Company’s Severance Plan and Summary Plan Description, adopted by the Company Board on April 27,
2023 (as amended from time to time).
“Company
Stock Plans” means the Company’s 2020 Stock Option and Grant Plan (as amended from time to time), the ValenzaBio 2020
Stock Option Plan (as amended from time to time) and the Company’s 2023 Equity Incentive Plan (as amended from time to time).
“Company
Termination Fee” means $10,000,000.
“Confidentiality
Agreement” means the Mutual Non-Disclosure Agreement, dated January 15, 2025, by and between the Company and Parent.
“Consent”
means consent, approval, ratification, permission, authorization, clearance, waiver, Permit or order.
“Contract”
means any written, oral or other form of binding agreement, contract, subcontract, lease, understanding, arrangement, instrument, note,
option, warranty, purchase order, license, sublicense, insurance policy, benefit plan or legally binding commitment or undertaking of
any nature.
“D&O
Insurance” means the Company’s current directors’ and officers’ liability insurance.
“Environmental
Laws” means all applicable Laws concerning or relating to pollution or protection of the environment or natural resources, or
protection of human health and safety as related to exposure to any harmful or deleterious substances.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“Exchange
Act” means the Securities Exchange Act of 1934.
“Excluded
IP Rights” means the Intellectual Property Rights set forth on Section 8.15(a) of the Company Disclosure Letter.
“FCPA”
means the Foreign Corrupt Practices Act of 1977.
“FDA”
means the U.S. Food and Drug Administration or any successor Governmental Entity thereto.
“FDA
Act” means the U.S. Federal Food, Drug, and Cosmetic Act.
“Federal
Healthcare Program” means any federal health program as defined in 42 U.S.C. §1320a-7b(f), including Medicare,
Medicaid, TRICARE, CHAMPVA and state healthcare programs (as defined therein).
“Fraud”
means, with respect to a Party, an actual and intentional misrepresentation, deceit or concealment of fact made by such Party with respect
to the making of the representations and warranties of such Party as expressly set forth in Article III or Article IV,
as applicable, of this Agreement, with the intent to induce the other Party to rely on such misrepresentation, deceit or concealment of
fact and act or fail to act to such other Party’s detriment, on which such other Party justifiably relies and subsequently justifiably
acts or fails to act in a manner that results in actual material losses to such other Party; provided that, for the avoidance of
doubt, actual and intentional misrepresentation, deceit or concealment of fact of a Party excludes any misrepresentation, deceit or concealment
of fact made negligently or recklessly.
“GAAP”
means United States generally accepted accounting principles.
“Governmental
Entity” means any federal, national, transnational, state, provincial or local, whether domestic or foreign, government or any
court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, whether domestic,
foreign or supranational.
“Hazardous
Material” means any substance, material or waste that is listed, defined or otherwise characterized as “hazardous”,
“toxic”, “radioactive” or a “pollutant”, or “contaminant” or terms of similar meaning
or effect under any Environmental Law, including petroleum or its by-products, asbestos and polychlorinated biphenyls.
“Healthcare
Laws” means (a) the FDA Act, (b) the Public Health Service Act (42 U.S.C. §201 et seq.), (c) all federal
and state fraud and abuse Laws, including the Federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the civil False Claims Act
(31 U.S.C. §3729 et seq.), the administrative False Claims Law (42 U.S.C. §1320a-7b(a)), the Anti-Inducement Law (42 U.S.C.
§1320a-7a(a)(5)), the exclusion Laws (42 U.S.C. §1320a-7), the Physician Payment Sunshine Act (42 U.S.C. §1320a-7h),
(d) the Health Insurance Portability and Accountability Act of 1996 as amended (42 U.S.C. §§1320d et seq.) and comparable
state Laws, (e) the Controlled Substances Act (21 U.S.C. §801 et seq.), (f) Titles XVIII (42 U.S.C. §1395 et seq.)
and XIX (42 U.S.C. §1396 et seq.) of the Social Security Act (g) all other applicable healthcare Laws or Judgments.
“Indebtedness”
means, with respect to any Person, without duplication, any and all (i) obligations of such Person for borrowed money, or with respect
to deposits or advances of any kind to such Person, (ii) obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) capitalized lease obligations of such Person or obligations of such Person to pay the deferred and unpaid purchase
price of property and equipment, (iv) obligations of such Person pursuant to securitization or factoring programs or arrangements,
(v) guarantees and arrangements having the economic effect of a guarantee of such Person of any Indebtedness of any other Person
(other than any guarantee by Parent or any wholly owned Parent Subsidiary with respect to Indebtedness of Parent or any wholly owned Parent
Subsidiary, or any guarantee by the Company or any wholly owned Company Subsidiary with respect to Indebtedness of the Company or any
wholly owned Company Subsidiary), (vi) obligations or undertakings of such Person to maintain or cause to be maintained the financial
position or covenants of others or to purchase the obligations or property of others, (vii) net cash payment obligations of such
Person under swaps, options, derivatives and other hedging agreements or arrangements that will be payable upon termination thereof (assuming
they were terminated on the date of determination) or (viii) letters of credit, bank guarantees and other similar contractual obligations
entered into by or on behalf of such Person; it being understood that the amount of any of the foregoing Indebtedness described in clauses
(i) through (viii) shall include any and all accrued interest, prepayment, breakage, and make-whole fees, expenses, premiums
or penalties related thereto, and any other fees and expenses required to be paid by such Person upon repayment thereof, in each case,
including as a result of or in connection with the Closing.
“Intellectual
Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in
the world: (a) rights associated with works of authorship, including exclusive exploitation
rights, copyrights, moral rights, software, databases, and mask works; (b) trademarks, service marks, trade dress, logos, trade names
and other source identifiers, domain names and URLs and similar rights and any goodwill associated therewith; (c) rights associated
with trade secrets, know how, inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other forms
of technology; (d) patents and industrial property rights; (e) other proprietary rights in intellectual property of every kind
and nature; (f) rights of publicity; and (g) all registrations, renewals, extensions, statutory invention registrations, provisionals,
non-provisionals, continuations, continuations-in-part, divisionals, or reissues of, and applications for, any of the rights referred
to in clauses (a) through (f) (whether or not in tangible form and including all tangible embodiments of any of the foregoing,
such as samples, studies and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration,
recordation or other administrative proceeding, and all causes of action and rights to sue or seek other remedies arising from or relating
to the foregoing.
“Judgment”
means any judgment, order, injunction, ruling, writ award or decree of any Governmental Entity.
“Knowledge”
means, in the case of Parent, the actual knowledge after reasonable inquiry of any of the individuals set forth on Section 8.15
of the Parent Disclosure Letter and, in the case of the Company, the actual knowledge after reasonable inquiry of any of the individuals
set forth on Section 8.15(b) of the Company Disclosure Letter.
“Law”
means any federal, state, local, foreign or transnational law, statute, ordinance or common law of any Governmental Entity.
“Leased
Company Property” means the real property leased, subleased or licensed by the Company or any of its Subsidiaries, in each case,
as tenant or subtenant, as applicable, together with, to the extent leased or subleased by the Company or any of its Subsidiaries, all
buildings and other structures, facilities, fixtures or improvements located thereon and all easements, licenses, rights and appurtenances
of the Company or any of its Subsidiaries relating to the foregoing.
“Leased
Parent Property” means the real property leased, subleased or licensed by Parent or any of its Subsidiaries, in each case, as
tenant or subtenant, as applicable, together with, to the extent leased or subleased by Parent or any of its Subsidiaries, all buildings
and other structures, facilities, fixtures or improvements located thereon and all easements, licenses, rights and appurtenances of Parent
or any of its Subsidiaries relating to the foregoing.
“Legal
Proceeding” means any claim, demand, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, formally heard, conducted
or threatened in writing to be commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental
Entity or any arbitrator or arbitration panel.
“Lien”
means, with respect to any share, security, property or asset (as applicable), any mortgage, lien, pledge, charge, security interest,
hypothecation, right of preemption, right of first refusal, negotiation or offer, contract for sale, license, option, easement, right
of way, encroachment, occupancy right, community property interest or restriction of any nature or other encumbrance, whether voluntarily
incurred or arising by operation of applicable Law.
“Material
Adverse Effect” means, with respect to any Person, any fact, circumstance, effect, change, event or development (an “Effect”)
that, individually or in the aggregate with all other Effects, materially adversely affects or would reasonably be expected to materially
adversely affect the business, financial condition or results of operations of such Person and its Subsidiaries, taken as a whole; provided,
however, that none of the following Effects shall be deemed in and of themselves, either alone or in combination with any other
Effects existing at such time, to constitute, or shall be taken into account in determining whether there is, a Material Adverse Effect:
(i) changes
or conditions generally affecting the industries in which such Person and any of its Subsidiaries operate, except to the extent such Effect
has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in such industries
in respect of the business conducted in such industries;
(ii) general
economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States
or any foreign jurisdiction, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its
Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect
of the business conducted in such industries;
(iii) any
failure, in and of itself, by such Person to meet any internal or published projections, forecasts, estimates or predictions in respect
of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving
rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been, or
is reasonably expected to be, a Material Adverse Effect, to the extent otherwise permitted by this definition);
(iv) the
public announcement or pendency of the transactions contemplated hereby, including the impact thereof on the relationships, contractual
or otherwise, of such Person or any of its Subsidiaries with employees, labor unions, customers, suppliers or partners;
(v) any
change, in and of itself, in the market price or trading volume of such Person’s securities or in its credit ratings (it being understood
that the facts or occurrences giving rise to or contributing to such change may be deemed to constitute, or be taken into account in determining
whether there has been, or is reasonably expected to be, a Material Adverse Effect, to the extent otherwise permitted by this definition);
(vi) any
change in applicable Law, regulation or GAAP (or authoritative interpretation thereof), except to the extent such Effect has a materially
disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such
Person and any of its Subsidiaries operate in respect of the business conducted in such industries;
(vii) geopolitical
conditions, the outbreak or escalation of hostilities, any acts of war (whether or not declared), sabotage or terrorism, or any escalation
or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of this Agreement, except to the extent
such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others
in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries;
(viii) any
hurricane, tornado, flood, earthquake or other natural disaster, except to the extent such Effect has a materially disproportionate adverse
effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its
Subsidiaries operate in respect of the business conducted in such industries;
(ix) any
epidemic, pandemic or disease outbreak (including COVID-19) and any action by a Governmental Entity in response thereto, except to the
extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to
others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries;
(x) any
litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the
transactions contemplated hereby,
(xi) any
adverse effects, adverse events or safety observations or reports of new side effects, adverse events or safety observations with respect
to such Person’s product candidates;
(xii) any
regulatory, manufacturing or clinical Effect or other action resulting from any non-clinical (including internal and external research
and discovery) or clinical studies (including compassionate use studies) sponsored by such Person or any competitor of such Person, results
of meetings with the FDA or other Governmental Body (including any communications from any Governmental Body in connection with such meetings),
or any increased incidence or severity of any previously identified side effects, adverse effects, adverse events or safety observations
or reports of new side effects, adverse events or safety observations with respect to such Person’s or any competitor’s product
candidates; or
(xiii) any
taking of any action required pursuant to this Agreement, or not required by this Agreement but taken at the written request or with the
prior written consent of, in the case of Parent, the Company, and in the case of the Company, Parent.
“Nasdaq”
means, with respect to Parent, the Nasdaq Global Select Market and, with respect to the Company, the Nasdaq Stock Market LLC.
“Parent
Affiliate” means any Person under common control with Parent within the meaning of Section 414(b), Section 414(c),
Section 414(m) or Section 414(o) of the Code.
“Parent
Associate” means any director, officer, employee, independent contractor or consultant of or to Parent or any Parent Subsidiary
or any Parent Affiliate.
“Parent
IP” means Parent Owned IP and Parent Licensed IP.
“Parent
Licensed IP” means any Intellectual Property Rights that are exclusively licensed or purported
to be exclusively licensed to Parent or any Parent Subsidiary.
“Parent
Material Adverse Effect” means a Material Adverse Effect with respect to Parent.
“Parent
Owned IP” means any Intellectual Property
Rights that are owned or purported to be owned by Parent or any Parent Subsidiary.
“Parent
Stock Option” means any option to purchase Parent Common Stock (whether granted under any Parent Stock Plan, assumed by Parent
in connection with any merger, acquisition or similar transaction or otherwise issued or granted).
“Parent
Stock Plans” means Parent’s 2021 Stock Plan (as amended from time to time), Parent’s 2024 Equity Incentive Plan
(as amended from time to time) and Parent’s 2024 Performance Option Plan (as amended from time to time).
“Parent
Termination Fee” means $10,000,000.
“Permitted
Lien” means (i) any Lien for Taxes that is not yet due and payable or that is being contested in good faith in appropriate
proceedings and for which adequate reserves have been established in accordance with GAAP, (ii) any carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other similar Lien arising in the ordinary course of business, (iii) any
Lien with respect to zoning, planning and other limitations and restrictions, including all rights of any Governmental Entity (but not
violations thereof), (iv) in the case of any Contract, any Lien that is a restriction against the transfer or assignment thereof
that is included in the terms of such Contract or any non-exclusive license of Intellectual Property Rights granted to service providers
in the ordinary course of business, (v) any Lien created by the execution and delivery of this Agreement, (vi) any Lien that
is disclosed on the most recent consolidated balance sheet of the Company or Parent, as applicable, or notes thereto, which has been previously
provided to Parent or the Company, as applicable, (vii) any Lien for which adequate reserves have been established on the Company’s
or Parent’s, (viii) any imperfection of title or similar Lien that does not, individually or in the aggregate, adversely impair
the ability of the Company or Parent, as applicable, or any of its Subsidiaries to use, the assets to which they relate or (ix) in
the case of Intellectual Property Rights, any Lien that is a non-exclusive license of Intellectual Property Rights in the ordinary course
of business consistent with past practice.
“Person”
means any natural person, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental
Entity or other entity.
“Personal
Information” means information in any form in the relevant Party’s possession, custody or control or that is Processed
by or on behalf of such Party that constitutes “personally identifiable information,” “personal information,”
“personal data,” “nonpublic financial information,” “individually identifiable health information”
or any similar term as defined under applicable Laws.
“Phase
2 Clinical Trial” means a human Clinical Trial of a biopharmaceutical product that would satisfy the requirements of U.S. 21 C.F.R. Part 312.21(b),
regardless of where such Clinical Trial is conducted.
“Privacy
Laws” means each applicable Law and all binding regulatory guidance concerning (i) the privacy, secrecy, security, protection,
sharing, sale, disposal, international transfer or other Processing of Personal Information, and incident reporting and Security Incident
notification requirements; and (ii) direct marketing, e-mails, communication by text messages or initiation, transmission, monitoring,
recording, or receipt of communications (in any format, including voice, video, email, phone, text messaging or otherwise).
“Process”
or “Processing” means any operation or set of operations, with respect to data or information, whether or not by automated
means, such as the use, collection, processing, storage, recording, organization, adaption, alteration, transfer, retrieval, consultation,
disclosure, dissemination, combination, erasure or destruction of such data or any other operation that is otherwise considered “processing”
or similar term under applicable Privacy Laws.
“Registered
IP” means all Intellectual Property Rights that are registered, filed or issued with, by or under the authority of any Governmental
Entity, including all patents, registered copyrights, registered mask works and registered trademarks and all applications for any of
the foregoing.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933.
“Security
Incident” means any (i) accidental, unlawful or unauthorized access, use, loss, exfiltration, disclosure, alteration, destruction,
encryption, compromise or other Processing of Personal Information; or (ii) occurrence that otherwise constitutes a “data breach,”
“security breach,” “personal data breach,” “security incident,” “cybersecurity incident”
or any similar term as defined under applicable Privacy Laws.
“SOX”
means the Sarbanes-Oxley Act of 2002.
“Standard
Contract” means any materials transfer agreement, clinical trial agreement, nondisclosure agreement, services agreement, commercially
available software-as-a-service offerings agreement, off-the-shelf software license agreement, license agreement commonly referred to
as “open source,” “public,” or “freeware” software license or generally available patent license agreement,
in each case, solely to the extent entered into in the ordinary course of business, and excluding any such agreement that includes the
grant of an exclusive option or other exclusive rights to use or practice any Company IP or Parent IP, as applicable.
“Subsidiary”
means, with respect to a Person, (i) a corporation more than 50% of the combined voting power of the outstanding voting stock of
which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or
more other Subsidiaries of such Person; (ii) a partnership of which such Person or one or more other Subsidiaries of such Person
or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the general partner and has the power to direct
the policies, management and affairs of such partnership; (iii) a limited liability company of which such Person or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries of such Person, directly or indirectly, is the managing
member and has the power to direct the policies, management and affairs of such company; and (iv) any other Person (other than a
corporation, partnership or limited liability company) in which such Person or one or more other Subsidiaries of such Person or such Person
and one or more other Subsidiaries of such Person, directly or indirectly, has at least a majority ownership or the power to direct the
policies, management and affairs thereof (including by Contract).
“Tax Return”
means any Tax return, declaration, statement, report, claim for refund, schedule, form and information return, any amended Tax return
and any other document filed or required to be filed with a Governmental Entity relating to Taxes.
“Taxes”
means all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, capital stock, severance, stamp,
payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other
taxes, duties (including customs duties) or assessments, in each case, in the nature of a tax, together with all interest, penalties and
additions imposed with respect to such amounts.
“Transaction
Expenses” means, with respect to each Party, any fees and expenses incurred by such Party at or prior to the Effective Time
in connection with this Agreement and the transactions contemplated hereby, including (a) fees and expenses of legal counsel and
accountants, the maximum amount of fees and expenses payable to financial advisors, investment bankers, brokers, consultants, and other
advisors of such Party; (b) fees paid to the SEC in connection with filing the Form S-4, the Joint Proxy Statement/Prospectus,
and any amendments and supplements thereto, with the SEC; (c) fees and expenses in connection with the printing, mailing and distribution
of the Form S-4, the Joint Proxy Statement/Prospectus and any amendments and supplements thereto; (d) fees associated with listing
the shares of Parent Common Stock in connection with the transactions contemplated hereby on Nasdaq, including the portion of Parent’s
periodic Nasdaq fees that is attributable to the shares of Parent Common Stock to be issued in connection with the transactions contemplated
hereby; and (e) only with respect to the Company, any bonus, severance, change-in-control payments or similar payment obligations
(including payments with “single-trigger” provisions triggered at and as of the consummation of the transactions contemplated
hereby) that become due or payable to any current or former Company Associate or any other Person in connection with the consummation
of the transactions contemplated hereby.
“Treasury
Regulations” means the United States Treasury regulations promulgated under the Code.
(b) The
following capitalized terms have the respective meanings given to them in the respective Sections of this Agreement set forth opposite
each of the capitalized terms below:
|
Term |
Section Reference |
| Agreement |
Preamble |
| Bankruptcy and Equity Exception |
3.4(b) |
| Bylaws |
1.5 |
| Certificate |
2.1(b) |
| Certificate of Incorporation |
1.4 |
| Certificate of Merger |
1.3 |
| Closing |
1.2 |
| Closing Date |
1.2 |
| Company |
Preamble |
| Company Acquisition Proposal |
5.2(d) |
| Company Alternative Acquisition Agreement |
5.2(e) |
| Company Balance Sheet |
3.9(b) |
| Company Board |
Recitals |
| Company Board Recommendation |
Recitals |
| Company Bylaws |
3.1(b) |
| Company Capital Stock |
3.3(a) |
| Company Change in Recommendation |
5.2(e) |
| Company Charter |
3.1(b) |
| Company Disclosure Letter |
Article III |
| Company Employees |
5.18(b) |
| Company Equity Awards |
2.4(d)(i) |
| Company Financial Advisor |
3.22 |
| Company In-bound License |
3.16(d) |
| Company Intervening Event |
5.2(d) |
| Company Leases |
3.20(c) |
| Company Licensed Registered IP |
3.16(a) |
| Company Material Contract |
3.11(b) |
| Company Out-bound License |
3.16(d) |
| Company Owned Registered IP |
3.16(a) |
| Company Permits |
3.18(a) |
| Company Preferred Stock |
3.3(a) |
|
Term |
Section Reference |
| Company Privacy Requirements |
3.17(a) |
| Company Registered IP |
3.16(a) |
| Company SEC Documents |
3.6(a) |
| Company Specified Representatives |
5.2(i) |
| Company Stockholder Approval |
3.4(b) |
| Company Stockholders Meeting |
5.5(a)(i) |
| Company Subsidiaries |
3.1(a) |
| Company Superior Proposal |
5.2(d) |
| Company Voting Agreements |
Recitals |
| Continuation Period |
5.18(b) |
| Converted Option |
2.4(a)(i) |
| Converted Performance RSU |
2.4(c)(i) |
| Converted Performance RSU Vesting Date |
2.4(c)(i) |
| Converted PSU Parent Shares |
2.4(c)(i) |
| Converted RSU |
2.4(b)(i) |
| Converted RSU Parent Shares |
2.4(b)(i) |
| Current Purchase Period |
2.4(e) |
| DGCL |
Recitals |
| Effective Time |
1.3 |
| Equiniti |
2.2(a) |
| ERISA Affiliate |
3.12(f) |
| Exchange Agent |
2.2(a) |
| Exchange Fund |
2.2(a) |
| Exchange Ratio |
2.1(a) |
| Excluded Share |
2.1(a) |
| Filed Company Contract |
3.11(a) |
| Filed Company SEC Documents |
Article III |
| Filed Parent Contract |
4.11(a) |
| Filed Parent SEC Documents |
Article IV |
| Form S-4 |
5.4(a) |
| HSR Act |
4.5(c) |
| Indemnification Period |
5.11(a) |
| Intended Tax Treatment |
Recitals |
| IRS |
3.12(e) |
| Joint Proxy Statement/Prospectus |
5.4(a) |
| Merger |
Recitals |
| Merger Consideration |
2.1(a) |
| Merger Sub |
Preamble |
| New Plans |
5.18(c) |
| Old Plans |
5.18(c) |
| Parent |
Preamble |
| Parent Acquisition Proposal |
5.3(d) |
| Parent Alternative Acquisition Agreement |
5.3(e) |
| Parent Balance Sheet |
4.9(b) |
| Parent Board |
Recitals |
| Parent Board Expansion |
5.16 |
| Parent Board Recommendation |
Recitals |
| Parent Bylaws |
4.1(b) |
| Parent Capital Stock |
4.3(a) |
| Parent Change in Recommendation |
5.3(e) |
|
Term |
Section Reference |
| Parent Charter |
4.1(b) |
| Parent Common Stock |
4.3(a) |
| Parent Disclosure Letter |
Article IV |
| Parent Financial Advisor |
4.23 |
| Parent In-bound License |
4.15(d) |
| Parent Intervening Event |
5.3(d) |
| Parent Leases |
4.20(c) |
| Parent Licensed Registered IP |
4.15(a) |
| Parent Material Contract |
4.11(b) |
| Parent Non-Voting Common Stock |
4.3(a) |
| Parent Out-bound License |
4.15(d) |
| Parent Owned Registered IP |
4.15(a) |
| Parent Permits |
4.17(a) |
| Parent Preferred Stock |
4.3(a) |
| Parent Privacy Requirements |
4.16(a) |
| Parent Registered IP |
4.15(a) |
| Parent SEC Documents |
4.6(a) |
| Parent Share Issuance |
4.4(a) |
| Parent Special Committee |
Recitals |
| Parent Specified Representatives |
5.3(i) |
| Parent Stockholder Approval |
4.4(b) |
| Parent Stockholders Meeting |
4.4(a) |
| Parent Subsidiaries |
4.1(a) |
| Parent Superior Proposal |
5.3(d) |
| Parent Voting Agreements |
Recitals |
| participate |
5.14(b) |
| Party/(ies) |
Preamble |
| Permits |
3.18(a) |
| Pre-Closing Period |
5.1(a) |
| Shares |
Recitals |
| Surviving Corporation |
1.1 |
| Tail Policy |
5.11(c) |
| Termination Date |
7.2(a) |
| Uncertificated Shares |
2.1(b) |
| WARN Act |
3.13(e) |
[The
remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF,
this Agreement has been duly executed and delivered by the duly authorized officers of the Parties hereto as of the date first written
above.
| |
ACELYRIN, INC. |
| |
|
| |
By: |
/s/ Mina Kim |
| |
Name: |
Mina Kim |
| |
Title: |
Chief Executive Officer |
[Signature Page to
Agreement and Plan of Merger]
IN WITNESS WHEREOF,
this Agreement has been duly executed and delivered by the duly authorized officers of the Parties hereto as of the date first written
above.
| |
ALUMIS INC. |
| |
|
| |
By: |
/s/ Martin Babler |
| |
Name: |
Martin Babler |
| |
Title: |
Chief Executive Officer |
| |
ARROW MERGER SUB, INC. |
| |
|
| |
By: |
/s/
Sara Klein |
| |
Name: |
Sara Klein |
| |
Title: |
President |
[Signature Page to Agreement and Plan
of Merger]
Exhibit 99.1
FOR IMMEDIATE RELEASE
Alumis
and ACELYRIN to Merge Creating a Late-Stage Clinical Biopharma Company Dedicated to
Innovating, Developing and Commercializing
Transformative Therapies for Immune-mediated
Diseases
Topline data from Phase 3 ONWARD trials for
Alumis’ ESK-001 in moderate-to-severe plaque psoriasis on track for readout in first half of 2026; Topline data from Phase 2b LUMUS
trial in systemic lupus erythematosus on track for readout in 2026
Evaluation underway of development plan for
ACELYRIN’s lonigutamab to confirm differentiation in a capital efficient manner
Pro forma cash position of approximately $737
million as of December 31, 2024, provides runway into 2027, beyond expected multiple clinical readouts for highly differentiated
late-stage portfolio
Alumis and ACELYRIN stockholders to own ~55%
and ~45%, respectively, of combined company on a fully diluted basis
Combined company will operate under Alumis name
with current Alumis executive team
Conference call to be held today, February 6,
2025, at 5:00 PM ET
SOUTH
SAN FRANCISCO, Calif. and LOS ANGELES, Calif. – February 6, 2025 – Alumis Inc. (Nasdaq: ALMS), a clinical-stage
biopharmaceutical company developing therapies using a precision approach to optimize clinical outcomes and significantly improve the
lives of patients with immune-mediated diseases, and ACELYRIN, INC. (Nasdaq: SLRN), a late-stage clinical biopharma company focused
on accelerating the development and delivery of transformative medicines in immunology, today announced a definitive merger agreement
under which Alumis and ACELYRIN will merge in an all-stock transaction.
Martin Babler, President, Chief Executive
Officer and Chairman of Alumis, said, “Through this combination with ACELYRIN, Alumis will have the financial flexibility and runway
to advance an expanded late-stage pipeline, now including lonigutamab, and build commercial capabilities. Since completing our IPO, Alumis
has operated with speed and rigor, and the multiple development milestones expected in 2025 and 2026, coupled with potential additional
indications for ESK-001, represent exciting breakthroughs for our patients and value-driving opportunities for the combined company’s
stockholders. As we move forward together, we will maintain financial discipline and a flexible capital allocation strategy with the goal
of maximizing the value of our highly differentiated portfolio.”
Bruce Cozadd, Chair of the ACELYRIN Board of Directors and member of
the Board Transaction Committee said, “This merger represents the culmination of a thorough strategic review process by our Board
and management team to determine the best and most value-maximizing path forward for ACELYRIN. We are confident that Alumis is the right
partner to optimize the development of lonigutamab and together deliver long-term stockholder value.”
“We are pleased to join with Alumis and further advance our mission
of developing and delivering transformative medicines in immunology,” said Mina Kim, Chief Executive Officer of ACELYRIN. “This
merger brings together two complementary organizations and pipelines, enabling the company to leverage the benefits of combined development
and commercial expertise, as well as catalyst diversification, to achieve even more together. I am deeply grateful to the entire ACELYRIN
team, whose efforts have made today’s milestone possible, and am excited that Alumis shares our mission of providing patients with
life-changing new treatment options.”
Alumis and ACELYRIN had cash, cash equivalents
and marketable securities of approximately $289 million and approximately $448 million, respectively, on a preliminary basis, as of December 31,
2024. With a pro forma cash position of approximately $737 million as of December 31, 2024, and continued operating discipline, Alumis
expects that this cash position provides runway to advance the combined company’s pipeline through multiple planned key data readouts
across several clinical trials and to fund operating expenses and capital expenditure requirements into 2027.
Combined Pipeline
The combined
company will benefit from a differentiated late-stage portfolio of therapies and increased resources enabling the development of
life-changing medicines. Together, the combined company will leverage its track record of R&D success, along with its proprietary
data and analytics platform, which utilizes key genetic and translational insights to optimize outcomes to patients.
Alumis
| · | Alumis’ most advanced product candidate, ESK-001, is an oral, highly selective, next-generation, allosteric inhibitor of tyrosine
kinase 2 (“TYK2”) that is currently being evaluated in the Phase 3 ONWARD clinical program for the treatment of patients with
moderate-to-severe plaque psoriasis (“PsO”) and the Phase 2b LUMUS clinical trial for systemic lupus erythematosus (“SLE”).
ESK-001 is a potentially best-in-class molecule with broad potential to expand into additional indications and treat a diverse group of
immune-mediated diseases. In a Phase 2 clinical trial, ESK-001 has demonstrated a favorable safety profile and maximal TYK2 inhibition
leading to high clinical responses in patients with PsO. Alumis expects a Phase 2 OLE 52-week data update in PsO in 2025, Phase 3 topline
data for PsO in the first half of 2026 and Phase 2b topline data for SLE in 2026. |
| · | Alumis is also developing A-005, a potential first-in-class central nervous system (“CNS”) penetrant allosteric TYK2 inhibitor
being developed for the treatment of neuroinflammatory and neurodegenerative diseases such as multiple sclerosis (“MS”) and
Parkinson’s Disease. A Phase 1 clinical trial in healthy volunteers was completed demonstrating that A-005 was well tolerated and
demonstrated its ability to cross the blood-brain barrier. Maximal TYK2 inhibition was achieved with a favorable pharmacokinetic profile
in the CNS and in the periphery. Alumis expects initiation of its Phase 2 clinical trial in MS in the second half of 2025 with Phase 2
topline data expected in 2026. |
ACELYRIN
| · | ACELYRIN is advancing lonigutamab, a subcutaneously delivered anti-IGF-1R with best-in-class potential in thyroid eye disease (TED)
currently being investigated in a Phase 2 clinical trial. Lonigutamab is the first subcutaneous anti-IGF-1R to have demonstrated robust
efficacy in TED patients, comparable to the IV-administered standard of care, and shown a favorable safety profile. ACELYRIN plans to
re-evaluate the development program for lonigutamab to confirm its differentiation in a capital efficient manner. Following closing of
the transaction, Alumis will continue this work and the development of lonigutamab in the context of the broader combined portfolio to
drive long-term value for stockholders. |
Transaction Terms
Under the terms of the agreement, ACELYRIN stockholders
will receive 0.4274 shares of Alumis common stock for each share of ACELYRIN common stock owned. Upon the close of
the transaction, Alumis stockholders will own approximately 55% of the combined company and ACELYRIN stockholders will
own approximately 45% of the combined company, on a fully diluted basis.
The transaction was unanimously recommended
and approved by the disinterested directors of each company’s Board.
Headquarters and Leadership
Following close, the combined company will
be led by the current Alumis executive team and will comprise a deep bench of talented professionals and medical experts that have successfully
advanced multiple programs through clinicals trials to commercialization. This will include key members of ACELYRIN’s team who will
ensure continuity and optimization of the lonigutamab development plan. The combined company’s Board will expand to nine directors,
including two additional directors from ACELYRIN’s Board.
The combined company will operate under the Alumis name with its corporate
headquarters remaining in South San Francisco.
Timing and Approvals
The transaction is expected to close in the
second quarter of 2025, subject to approval by the stockholders of both companies and satisfaction of other customary closing conditions.
Stockholders representing approximately 62%
of Alumis voting common stock and approximately 24% of ACELYRIN common
stock have entered into voting agreements in support of the transaction.
Conference Call and Webcast
Alumis and
ACELYRIN will host a joint conference call and webcast today at 5:00 p.m. E.T. to discuss the transaction. The webcast will be available
live via the link here. For participants who would like to ask a question during the
Q&A portion of the call, register for the conference call here to obtain a dial-in number and passcode.
The webcast link and associated presentation materials will be available
on the investor relations section of each company’s website.
Advisors
Morgan Stanley & Co. LLC is serving
as financial advisor to Alumis, and Cooley LLP is serving as its legal counsel. Guggenheim Securities, LLC is serving as financial
advisor to ACELYRIN and Fenwick & West LLP is serving as its legal counsel.
About Alumis
Alumis is a clinical-stage biopharmaceutical
company developing oral therapies using a precision approach to optimize clinical outcomes and significantly improve the lives of patients
with immune-mediated diseases. Leveraging its proprietary precision data analytics platform, Alumis is building a pipeline of molecules
with the potential to address a broad range of immune-mediated diseases as monotherapy or combination therapies. Alumis’ most advanced
product candidate, ESK-001, is an oral, highly selective, small molecule, allosteric inhibitor of tyrosine kinase 2 that is currently
being evaluated for the treatment of patients with moderate-to-severe plaque psoriasis and systemic lupus erythematosus. Alumis is also
developing A-005, a CNS-penetrant, allosteric TYK2 inhibitor for the treatment of neuroinflammatory and neurodegenerative diseases. Beyond
TYK2, Alumis’ proprietary precision data analytics platform and drug discovery expertise have led to the identification of additional
preclinical programs that exemplify its precision approach. Incubated by Foresite Labs and led by a team of industry veterans experienced
in small-molecule compound drug development for immune-mediated diseases, Alumis is pioneering a precision approach to drug development
to potentially produce the next generation of treatment to address immune dysfunction.
About ACELYRIN
ACELYRIN, INC. (Nasdaq: SLRN) is focused on providing patients
life-changing new treatment options by identifying, acquiring, and accelerating the development and commercialization of transformative
medicines. ACELYRIN’s lead program, lonigutamab, is a subcutaneously delivered monoclonal antibody targeting IGF-1R being investigated
for the treatment of thyroid eye disease.
Financial Disclaimer
Alumis’ and ACELYRIN’s audited
consolidated financial statements for the year ended December 31, 2024 are not yet available. Accordingly, the information presented
herein regarding cash, cash equivalents and marketable securities as of December 31, 2024, reflects each of Alumis’ and ACELYRIN’s
preliminary financial data, subject to the completion of Alumis’ and ACELYRIN’s financial closing procedures and any adjustments
that may result from the completion of the review and audit of Alumis’ and ACELYRIN’s consolidated financial statements for
the year ended December 31, 2024, respectively. Actual financial results that will be reflected in each of Alumis’ and ACELYRIN’s
Annual Reports on Form 10-K for the year ended December 31, 2024, when they are completed and publicly disclosed may differ
from the preliminary results presented here.
Forward-Looking Statements
This communication contains forward-looking statements within the
meaning of federal securities laws, including the “safe harbor” provisions of the Private Securities Litigation Reform
Act of 1995. Such statements are based upon current plans, estimates and expectations of management of Alumis Inc.
(“Alumis”) and ACELYRIN, Inc. (“ACELYRIN”) in light of historical results and trends, current
conditions and potential future developments, and are subject to various risks and uncertainties that could cause actual results to
differ materially from such statements. The inclusion of forward-looking statements should not be regarded as a representation that
such plans, estimates and expectations will be achieved. Words such as “anticipate,” “expect,”
“project,” “intend,” “believe,” “may,” “will,” “should,”
“plan,” “could,” “continue,” “target,” “contemplate,”
“estimate,” “forecast,” “guidance,” “predict,” “possible,”
“potential,” “pursue,” “likely,” and words and terms of similar substance used in connection
with any discussion of future plans, actions or events identify forward-looking statements. All statements, other than statements of
historical facts, including express or implied statements regarding the proposed transaction; the conversion of equity interests
contemplated by the agreement and plan of merger, dated as of February 6, 2025, by and among the parties (the “merger
agreement”); the issuance of common stock of Alumis contemplated by the merger agreement; the expected filing by Alumis with
the Securities and Exchange Commission (the “SEC”) of a registration statement on Form S-4 (the “registration
statement”) and a joint proxy statement/prospectus of Alumis and ACELYRIN to be included therein (the “joint proxy
statement/prospectus”); the expected timing of the closing of the proposed transaction; the ability of the parties to complete
the proposed transaction considering the various closing conditions; the expected benefits of the proposed transaction; the
sufficiency of the combined company’s capital resources; the combined company’s cash runway; the competitive ability and
position of the combined company; the clinical pipeline of the combined company; and any assumptions underlying any of the
foregoing, are forward-looking statements.
Risks and uncertainties include, among other things, (i) the risk
that the proposed transaction may not be completed in a timely basis or at all, which may adversely affect Alumis’ and ACELYRIN’s
businesses and the price of their respective securities; (ii) the potential failure to receive, on a timely basis or otherwise, the
required approvals of the proposed transaction, including stockholder approvals by both Alumis’ stockholders and ACELYRIN’S
stockholders, and the potential failure to satisfy the other conditions to the consummation of the transaction; (iii) the effect
of the announcement, pendency or completion of the proposed transaction on each of Alumis’ or ACELYRIN’s ability to attract,
motivate, retain and hire key personnel and maintain relationships with partners, suppliers and others with whom Alumis or ACELYRIN does
business, or on Alumis’ or ACELYRIN’s operating results and business generally; (iv) that the proposed transaction may
divert management’s attention from each of Alumis’ and ACELYRIN’s ongoing business operations; (v) the risk of
any legal proceedings related to the proposed transaction or otherwise, or the impact of the proposed transaction thereupon, including
resulting expense or delay; (vi) that Alumis or ACELYRIN may be adversely affected by other economic, business and/or competitive
factors; (vii) the occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement
, including in circumstances which would require Alumis or ACELYRIN to pay a termination fee; (viii) the risk that restrictions during
the pendency of the proposed transaction may impact Alumis’ or ACELYRIN’s ability to pursue certain business opportunities
or strategic transactions; (ix) the risk that the anticipated benefits and synergies of the proposed transaction may not be fully
realized or may take longer to realize than expected; (x) the impact of legislative, regulatory, economic, competitive and technological
changes; (xi) risks relating to the value of Alumis securities to be issued in the proposed transaction; (xii) the risk that
integration of the proposed transaction post-closing may not occur as anticipated or the combined company may not be able to achieve the
growth prospects expected from the transaction; (xiii) the effect of the announcement, pendency or completion of the proposed transaction
on the market price of the common stock of each of Alumis and ACELYRIN; (xiv) the implementation of each of Alumis’ and ACELYRIN’s
business model and strategic plans for product candidates and pipeline, and challenges inherent in developing, commercializing, manufacturing,
launching, marketing and selling potential existing and new products and product candidates; (xv) the scope, progress, results and
costs of developing Alumis’ and ACELYRIN’s product candidates and any future product candidates, including conducting preclinical
studies and clinical trials, and otherwise related to the research and development of Alumis’ and ACELYRIN’s pipeline; (xvi) the
timing and costs involved in obtaining and maintaining regulatory approval for Alumis’ and ACELYRIN’s current or future product
candidates, and any related restrictions, limitations and/or warnings in the label of any approved product; (xvii) the market for,
adoption (including rate and degree of market acceptance) and pricing and reimbursement of Alumis’ and ACELYRIN’s product
candidates, if approved, and their respective abilities to compete with therapies and procedures that are rapidly growing and evolving;
(xviii) uncertainties in contractual relationships, including collaborations, partnerships, licensing or other arrangements and the
performance of third-party suppliers and manufacturers; (xix) the ability of each of Alumis and ACELYRIN to establish and maintain
intellectual property protection for products or avoid or defend claims of infringement; (xx) Alumis’ ability to successfully
integrate ACELYRIN’s operations and personnel; and (xxi) potential delays in initiating, enrolling or completing preclinical
studies and clinical trials.
These risks, as well as other risks related to the proposed transaction,
will be described in the registration statement and the joint proxy statement/prospectus that will be filed with the SEC in connection
with the proposed transaction. While the list of factors presented here and the list of factors to be presented in the registration statement
are considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties.
For additional information about other factors that could cause actual results to differ materially from those described in the forward-looking
statements, please refer to Alumis’ and ACELYRIN’s respective periodic reports and other filings with the SEC, including the
risk factors identified in Alumis’ and ACELYRIN’s most recent Quarterly Reports on Form 10-Q and/or Annual Reports on
Form 10-K. The risks and uncertainties described above and in the SEC filings cited above are not exclusive and further information
concerning Alumis and ACELYRIN and their respective businesses, including factors that potentially could materially affect their respective
businesses, financial conditions or operating results, may emerge from time to time. Readers are urged to consider these factors carefully
in evaluating these forward-looking statements, and not to place undue reliance on any forward-looking statements, which speak only as
of the date hereof. Readers should also carefully review the risk factors described in other documents Alumis and ACELYRIN file from time
to time with the SEC.
The forward-looking statements included in this communication are made
only as of the date hereof. Alumis assumes no obligation and does not intend to update these forward-looking statements, even if new information
becomes available in the future, except as required by law.
Additional Information and Where to Find It
In connection
with the proposed merger, Alumis intends to file with the SEC the registration statement, which will include the joint proxy statement/prospectus.
After the registration statement has been declared effective by the SEC, the joint proxy statement/prospectus will be delivered to stockholders
of Alumis and ACELYRIN. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SECURITY HOLDERS OF ALUMIS AND ACELYRIN ARE URGED TO READ THE
JOINT PROXY STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE MERGER THAT WILL
BE FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Investors
and security holders will be able to obtain copies of the joint proxy statement/prospectus (when available) and other documents filed
by Alumis and ACELYRIN with the SEC, without charge, through the website maintained by the SEC at www.sec.gov.
Copies of the documents filed with the SEC by Alumis will be available free of charge under the SEC Filings heading of the Investor
Relations section of Alumis’ website at https://investors.alumis.com/. Copies of the documents
filed with the SEC by ACELYRIN will be available free of charge under the Financials & Filings heading of the Investor Relations
section of ACELYRIN’s website at https://investors.acelyrin.com/.
Participants in the Solicitation
Alumis and ACELYRIN and their respective directors and executive officers
may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information about Alumis’
directors and executive officers is set forth in Alumis’ registration statement on Form S-1/A (File No. 333-280068), which
was filed with the SEC on June 24, 2024. Information about ACELYRIN’s directors and executive officers is set forth in the
proxy statement for ACELYRIN’s 2024 Annual Meeting of Stockholders, which was filed with the SEC on April 22, 2024, and ACELYRIN’s
Current Reports on Form 8-K filed with the SEC on May 28, 2024, August 13, 2024 and December 10, 2024. Stockholders
may obtain additional information regarding the interests of such participants by reading the registration statement and the joint proxy
statement/prospectus and other relevant materials to be filed with the SEC regarding the proposed merger when they become available. Investors
should read the joint proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions.
No Offer or Solicitation
This communication shall not constitute an offer to sell or the solicitation
of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the
Securities Act of 1933, as amended.
Alumis Contacts
Investor Relations
Teri Dahlman
Red House Communications
teri@redhousecomms.com
Media
Jim
Golden / Jack Kelleher / Tali Epstein
Collected Strategies
Alumis-CS@collectedstrategies.com
ACELYRIN, INC Contacts
Investor Relations and Media
Tyler Marciniak
Vice President of Investor Relations and
Corporate Operations
tyler.marciniak@acelyrin.com
Exhibit 99.2
Transform Therapies. Reimagine Lives. February 6, 2025 Alumis and ACELYRIN Merger Investor Presentation |
Disclaimer Forward - Looking Statements This communication contains forward - looking statements within the meaning of federal securities laws, including the “safe harbor” provisions of th e Private Securities Litigation Reform Act of 1995. Such statements are based upon current plans, estimates and expectations of management of Alumis Inc. (“Alumis”) and ACELYRIN, Inc. (“ACELYRIN”) in light of historical results and trends, current conditions and potential future de velopments, and are subject to various risks and uncertainties that could cause actual results to differ materially from such st atements. The inclusion of forward - looking statements should not be regarded as a representation that such plans, estimates and expectations will be achieved. Words such as “anticipate,” “e xpect,” “project,” “intend,” “believe,” “may,” “will,” “should,” “plan,” “could,” “continue,” “target,” “contemplate,” “estim ate ,” “forecast,” “guidance,” “predict,” “possible,” “potential,” “pursue,” “likely,” and words and terms of similar substance used in connection with any discussion of future pl ans , actions or events identify forward - looking statements. All statements, other than statements of historical facts, including ex press or implied statements regarding the proposed transaction; the conversion of equity interests contemplated by the agreement and plan of merger, dated as of February 6, 2025, by and among the parties (the “merger agreement”); the issuance of common stock of Alumis contemplated by the merger ag ree ment; the expected filing by Alumis with the Securities and Exchange Commission (the “SEC”) of a registration statement on Form S - 4 (the “registration statement”) and a join t proxy statement/prospectus of Alumis and ACELYRIN to be included therein (the “joint proxy statement/prospectus”); the expe cte d timing of the closing of the proposed transaction; the ability of the parties to complete the proposed transaction considering the various closing conditions; the expected bene fit s of the proposed transaction; the sufficiency of the combined company’s capital resources; the combined company’s cash runwa y; the competitive ability and position of the combined company;the clinical pipeline of the combined company; and any assumptions underlying any of the foregoing, are forward - looking statements. Risks and uncertainties include, among other things, (i) the risk that the proposed transaction may not be completed in a tim ely basis or at all, which may adversely affect Alumis's and ACELYRIN's businesses and the price of their respective securities; (ii) the potential failure to receive, on a timely ba si s or otherwise, the required approvals of the proposed transaction, including stockholder approvals by both Alumis's stockholders and ACELYRIN's stockholders, and the potential failure to satisfy the other conditions to the consummation of th e transaction; (iii) the effect of the announcement, pendency or completion of the proposed transaction on each of Alumis's or ACELYRIN's ability to attract, motivate, retain and hire key personnel and maintain relationships with partners, suppliers a nd others with whom Alumis or ACELYRIN does business, or on Alumis's or ACELYRIN's operating results and business generally; (iv) that the proposed transaction may divert management’s attention from each of Alumis's and ACELYRIN's ongoing business operations; (v) the risk of any legal proceedings related to the proposed transaction or othe rw ise, or the impact of the proposed transaction thereupon, including resulting expense or delay; (vi) that Alumis or ACELYRIN may be adversely affected by other economic, business and/or competitive factors; (vii) t he occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement, includ ing in circumstances which would require Alumis or ACELYRIN to pay a termination fee; (viii) the risk that restrictions during the pendency of the proposed transaction may impa ct Alumis's or ACELYRIN's ability to pursue certain business opportunities or strategic transactions; (ix) the risk that the anticipated be nefits and synergies of the proposed transaction may not be fully realized or may take longer to realize than expected; (x) the impact of legislative, regulatory, economic, compe tit ive and technological changes; (xi) risks relating to the value of Alumis securities to be issued in the proposed transaction ; ( xii) the risk that integration of the proposed transaction post closing may not occur as anticipated or the combined company may not be able to achieve the growth prospects expected from th e t ransaction; (xiii) the effect of the announcement, pendency or completion of the proposed transaction on the market price of the common stock of each of Alumis and ACELYRIN; (xiv) the implementation of each of Alumis's and ACELYRIN's business model and strategic plans for product candidates and pipeline, and challenges inherent in developing, c ommercializing, manufacturing, launching, marketing and selling potential existing and new products and product candidates; ( xv) the scope, progress, results and costs of developing Alumis's and ACELYRIN's product candidates and any future product candidates, including conducting preclinical studies and clinical tr ia ls, and otherwise related to the research and development of Alumis's and ACELYRIN's pipeline; (xvi) the timing and costs involved in obtaining and maintaining regulatory approval for Alumis's and ACELYRIN's current or future product candidates, and any related restrictions, limitations and/or warnings in the label o f any approved product; (xvii) the market for, adoption (including rate and degree of market acceptance) and pricing and reimbursement of Alumis's and ACELYRIN's product candidates, if approved, and their respective abilities to compete with therapies and procedures that ar e rapidly growing and evolving; (xviii) uncertainties in contractual relationships, including collaborations, partnerships, l ice nsing or other arrangements and the performance of third party suppliers and manufacturers; (xix) the ability of each of Alumis and ACELYRIN to establish an d maintain intellectual property protection for products or avoid or defend claims of infringement; (xx) Alumis’s ability to successfully integrate ACELYRIN’s operations and personnel and; (xxi) potential delays in initiating, enrolling or completing preclinical studies and clinical trials. These risks, as well as other risks related to the proposed transaction, will be described in the registration statement and the joint proxy statement/prospectus that will be filed with the SEC in connection with the proposed transaction. While the list of factors presented here and the list of factors to be presented in the registration statement are considered representative, no such list should be considered to be a complete sta tem ent of all potential risks and uncertainties. For additional information about other factors that could cause actual results to differ materially from those described in the forward looking statements, please refer to Alumis’s and ACELYRIN’s respective periodic reports and other filings with the SEC, including the risk factors identified in Alumis’s and ACELYRIN’s most recent Quarterly Reports on Form 10 - Q and/or Annual Reports on Form 10 - K. The risks and uncertainties descr ibed above and in the SEC filings cited above are not exclusive and further information concerning Alumis and ACELYRIN and their respect ive businesses, including factors that potentially could materially affect their respective businesses, financial conditions or o pe rating results, may emerge from time to time. Readers are urged to consider these factors carefully in evaluating these forward looking statements, and not to place undue reliance on any forward - looking statements, which speak only as of the date hereof. Readers should also carefully review the risk factors descr ibed in other documents Alumis and ACELYRIN file from time to time with the SEC. The forward - looking statements included in this communication are made only as of the date hereof. Alumis assumes no obligation and does not intend to update these forward - looking statements, even if new information becomes available in the future, except as required by law. Additional Information and Where to Find It In connection with the proposed merger, Alumis intends to file with the SEC the registration statement, which will include th e j oint proxy statement/prospectus. After the registration statement has been declared effective by the SEC, the joint proxy sta tem ent/prospectus will be delivered to stockholders of Alumis and ACELYRIN. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, SECURITY HOLDERS OF Alumis AND ACELYRIN ARE URGED TO RE AD THE JOINT PROXY STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE M ERG ER THAT WILL BE FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED ME RGER. Investors and security holders will be able to obtain copies of the joint proxy statement/prospectus (when available) a nd other documents filed by Alumis and ACELYRIN with the SEC, without charge, through the website maintained by the SEC at www.sec.gov. Copies of the doc ume nts filed with the SEC by Alumis will be available free of charge under the SEC Filings heading of the Investor Relations section of Alumis’s website at investors.alumis.com. Copies of the documents filed with the SEC by ACELYRIN will be available free of charge under the Financials & Filings heading of th e I nvestor Relations section of ACELYRIN’s website investors.ACELYRIN.com. Participants in the Solicitation Alumis and ACELYRIN and their respective directors and executive officers may be deemed to be participants in the solicitation of pr ox ies in respect of the proposed transaction. Information about Alumis’s directors and executive officers is set forth in Alumis’s registration statement on Form S - 1/A (File No. 333 - 280068), which was filed with the SEC on June 24, 2024. Information about ACELYRIN’s directors and executive officers is set for th in the proxy statement for ACELYRIN’s 2024 Annual Meeting of Stockholders, which was filed with the SEC on April 22, 2024, an d ACELYRIN’s Current Reports on Form 8 - K filed with the SEC on May 28, 2024, August 13, 2024 and December 10, 2024. Stockholders may obtain additional information regarding the int erests of such participants by reading the registration statement and the joint proxy statement/prospectus and other relevant ma terials to be filed with the SEC regarding the proposed merger when they become available. Investors should read the joint proxy statement/prospectus carefully when it beco mes available before making any voting or investment decisions. No Offer or Solicitation This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or ap proval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unla wfu l prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the re quirements of Section 10 of the Securities Act of 1933, as amended. 2 © Alumis
3 © Alumis Creating Well Capitalized Company with Multiple Upcoming Expected Development Milestones and Extended Runway into 2027 〉 Creates a late - stage clinical biopharma company dedicated to innovating, developing and commercializing transformative therapies for immune - mediated diseases 〉 Differentiated pipeline with multiple upcoming milestones expected, including: 〉 Topline data from Phase 3 ONWARD trials for Alumis’ ESK - 001 in moderate - to - severe plaque psoriasis on track for readout in 1H 2026 〉 Topline data from Phase 2b LUMUS trial in systemic lupus erythematosus on track for readout in 2026 〉 Phase 2 clinical trial initiation for Alumis ’ A - 005 in MS 〉 Advancing lonigutamab , a subcutaneously delivered anti - IGF - 1R currently being investigated in a Phase 2 clinical trial in thyroid eye disease 〉 Pro forma cash of ~$737 million as of December 31, 2024, provides runway into 2027 beyond multiple expected clinical readouts 〉 Combined company to benefit from world - class leadership team with proven record of operating discipline and capital efficiency
4 © Alumis 〉 All stock merger 〉 ACELYRIN stockholders to receive 0.4274 shares of Alumis common stock for each share of ACELYRIN common stock owned Consideration 〉 Alumis stockholders to own ~ 55% of the combined company 〉 ACELYRIN stockholders to own ~ 45% of the combined company Pro Forma Ownership 1 〉 ~$737M pro forma cash at the end of Q4 2024 〉 Expect pro forma financial plans to extend runway into 2027 Cash Position 〉 Combined company to operate under the Alumis name 〉 The combined company will be led by current Alumis executive team 〉 Alumis Board will expand to nine directors, including two additional directors from ACELYRIN’s Board Leadership 〉 Expected in the second quarter of 2025 〉 Subject to approval of Alumis and ACELYRIN stockholders and satisfaction of other customary closing conditions Transaction Closing and Conditions 1. On a fully diluted basis Transaction Highlights
Late - Stage Pipeline With Multiple Near - Term Catalysts 5 © Alumis 〉 Post transaction close, the company will consider development plan for lonigutamab in the context of the broader combined portfolio to drive long - term value for stockholders ANTICIPATED MILESTONES DEVELOPMENT PHASE 3 PHASE 2 PHASE 1 PRECLINICAL TARGET 1H 2026 : Phase 3 topline data Moderate - to - Severe Plaque Psoriasis ( PsO ) ESK - 001 (TYK2) 2026: Phase 2b topline data Systemic Lupus Erythematosus (SLE) Other suitable development opportunities for ESK - 001 include expanded Psoriasis indication, and/or other immunological indications outside the CNS Add’l indications TBD PsA, IBD, etc. To be determined Thyroid Eye Disease (TED) Lonigutamab (anti - IGF - 1R) 2025: Initiate Phase 2 in MS 2026: Phase 2 topline data Multiple Sclerosis (MS) A - 005 (TYK2) Expanded opportunities for A - 005 include other neuroinflammatory or neurodegenerative indications Add’l indications TBD PAR, AD, etc . YE25: New clinical candidate Undisclosed IRF5, Additional Targets
6 © Alumis Ongoing Phase 2b trial of ESK - 001 in systemic lupus erythematosus Phase 2 trial of A - 005 in multiple sclerosis A - 005 Ongoing Phase 3 trials of ESK - 001 in m oderate - to - severe plaque psoriasis Topline data readout expected in 1H 2026 Topline data readout expected in 2026 Initiation expected in 2025 To pline data expected in 2026 Alumis Pipeline: Development Plan is on Track
ACELYRIN’s Lonigutamab A Next - Generation Subcutaneous Anti - IGF - 1R Therapy With Best - in - Class Potential in TED 7 Evaluating Lonigutamab Development Plan 〉 Lonigutamab is a unique asset given its mechanism of action and has best - in - class potential 〉 ACELYRIN plans to re - evaluate the development program for lonigutamab to confirm its differentiation in a capital efficient manner 〉 Following closing of the transaction, Alumis will continue this work and development of lonigutamab in the context of the broader combined portfolio to drive long - term value for stockholders Best - In - Class Potential 〉 Uniquely differentiated MOA: non - competitively binding IGF - 1R antagonist in TED 〉 Robust and compelling Phase 1/2 clinical data that may enable selection of dose that optimizes efficacy and safety 〉 Potential for commercially attractive product profile with IV - like efficacy and reduced safety barriers for adoption © Alumis
8 © Alumis F lexibility and Runway to Advance L ate - stage T herapies 〉 Standalone: Alumis and ACELYRIN had cash, cash equivalents and marketable securities of ~$289 million and ~$448 million, respectively, on a preliminary basis, as of December 31, 2024 〉 Combined Company: Pro forma cash of ~$737 million as of December 31, 2024 〉 Strong Financial Position: Provides runway into 2027 to advance expanded pipeline through multiple planned key data readouts across several clinical trials
x x Recent Achievements and Anticipated Multiple Near - Term Milestones 2024 2025 2026 MAR24 APR24 JUL24 3Q24 YE24 ESK - 001 – Present Phase 2 STRIDE and OLE Data at AAD A - 005 – Phase 1 Initiation ESK - 001 – Initiate Phase 3 in PsO ESK - 001 – PsO OLE Data Update A - 005 – Phase 1 Data 1H26 2026 2026 ESK - 001 – PsO Phase 3 Topline Data ESK - 001 – SLE Phase 2b Topline Data A - 005 – MS Phase 2 Topline Data ESK - 001 – PsO Phase 2 OLE Data Update Transaction close A - 005 – MS Phase 2 Initiation IND Filing for 3rd Clinical Candidate Finalize plan for lonigutamab Once - daily formulation established for ESK - 001 1Q25 2 Q25 2H25 2H25 2025 2025 x 9 x x © Alumis
Alumis /ACELYRIN Combination © Alumis 10 Late - Stage Clinical Biopharma Company Dedicated to Innovating, Developing and Commercializing Transformative Therapies for Immune - mediated Diseases Strong Portfolio, Large Opportunity 〉 Three potential best - in - class molecules: two advanced clinical TYK2 inhibitors and an IGF - 1R inhibitor provide strategic opportunities across a broad range of immune - mediated diseases 〉 ESK - 001: Near term pivotal data with two major value inflection points expected in large indications, high efficacy oral molecul es provide significant market maker potential 〉 A - 005: Potentially first - in - class fully CNS - penetrant TYK2 inhibitor expands breadth of addressable indications, including those within the CNS 〉 Lonigutamab : Potentially differentiated profile with favorable efficacy and safety data in TED Well capitalized and proven leadership to execute 〉 Pro forma combined cash of ~$737 million as of December 31, 2024 provides runway into 2027 beyond multiple expected clinical readouts 〉 Experienced team with strong track record of operating discipline, capital efficiency and value creation
Thank You!
Appendix
13 Alumis: A Well Characterized Late - Stage Portfolio with Significant Opportunity Genomic, proteomic and clinical insights validate and drive our Research and Development strategy and increase the probability of technical success (PTS) of our programs Experienced team with strong track record of operating discipline, capital efficiency and value creation Proven Leadership High efficacy oral molecules provide significant market maker potential High PTS Near Term Pivotal Data Large Opportunity Two highly differentiated advanced clinical TYK2 inhibitors provide strategic opportunities across a broad range of immune mediated diseases ESK - 001: Two major value inflection points in large indications A - 005: First - in - class fully CNS - penetrant TYK2 inhibitor expands breadth of addressable indications, including those within the CNS First - in - class Market Maker © Alumis
〉 TYK2 pathway drives immune mediated diseases in the periphery and CNS via IL23, IL17 and IFN 〉 TYK2 inhibition interrupts the self - fueling inflammatory cycle by stopping the release of inflammatory mediators 〉 Oral therapy enables greater tissue penetration, convenience and potential for combinations TYK2 Is One Of The Most Attractive Targets In I&I 14 … TYK2 STAT NUCLEUS IL - 23, IL - 12, IFN Psoriasis Psoriatic Arthritis IBD SLE Multiple Sclerosis Other I&I Diseases © Alumis
15 ESK - 001 and A - 005: A Highly Differentiated TYK2i Portfolio Phase 3 dose fully inhibits TYK2 by every measure in skin and blood* 〉 Maximal Target Inhibition Long term PASI and sPGA response rates competitive with high efficacy biologics 〉 High Response Oral No major safety signals to date with up to two years of active therapy 〉 Long Term Safety Significant and prolonged cerebral spinal fluid (CSF) exposure 〉 Full CNS Penetration High peripheral and CSF exposure achieves maximal target inhibition 〉 Maximal Target Inhibition Chronic tox ongoing, CMC and clinical pharmacology support Phase 2 〉 Phase 2 Ready ESK - 001: next - generation TY2 inhibitor for immune - mediated diseases A - 005: first - in - class CNS - penetrant TYK2 inhibitor for neuroinflammatory diseases © Alumis *in vitro HWB, ex vivo Ph1 PD assays in HV, and RNAseq of Ph2 PsO patients
© Alumis 16 Maximal Target Inhibition Led to 15 - 20% Increase in Clinical Response (PASI) Maximal Target Inhibition Maintained Across 24 - hour Dosing Period ( Phase 1 multidose trough PK) Clinical Outcomes at 28 Weeks (OLE Phase 2, PASI as observed) 1 10 100 1000 0 2 4 6 8 10 12 14 ESK - 001 Mean Trough Concentration (ng/mL) Time (days) IC90 IC50 10 mg QD 20 mg QD 20 mg BID 30 mg BID 40 mg BID 60 mg QD Patients with Response (%) 72.9 47.1 20 93 71.8 35.2 0 20 40 60 80 100 PASI 75 PASI 90 PASI 100 40 mg QD 40 mg BID
TYK2 Class has Extensive Validation with Substantial Market Potential Across Immune - Mediated Diseases Ongoing trials: includes Alumis and other company clinical trials; Publicly disclosed indications for TYK2, Market size estimates for 2030 worldwide Biologic Rationale Genetic Evidence Ongoing Trial Clinical POC Market Size 1 Indication >$25B Plaque Psoriasis >$9B Psoriatic Arthritis >$4B Systemic Lupus >$9B Ulcerative Colitis >$13B Crohn’s Disease >$2B Cutaneous Lupus >$6B Ankylosing Spondylitis >$30B Multiple Sclerosis >$33B Rheumatoid Arthritis >$8B Juvenile RA >$20B Others >$150B Market Size Total 1. GlobalData , market research reports 17 © Alumis
© Alumis 18 Lonigutamab – A Unique Mechanism for TED Patients 〉 Robust subcutaneous efficacy in TED Patients comparable to SoC and investigational anti - IGF - 1R IV agents 〉 First clinical subcutaneous data in TED patients informs clinical development 〉 Optimized safety profile : potential for lower risks of hearing impairment, menstrual disorders and hyperglycemia 〉 Ability to be used chronically and flexibly to tailor to patient treatment goals 〉 Smallest, lowest volume autoinjector for an anti - IGF - 1R agent
Exhibit 99.3
VOTING
AND Support AGREEMENT
This VOTING AND SUPPORT
AGREEMENT (this “Agreement”) is made and entered into as of February 6, 2025, by and among ACELYRIN, Inc.,
a Delaware corporation (the “Company”), and the stockholder(s) of Alumis Inc., a Delaware corporation (“Parent”),
listed on Schedule A hereto (each, a “Securityholder”). Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS,
each Securityholder is the record or beneficial owner of the securities of Parent (including options and convertible securities) as set
forth opposite such Securityholder’s name on Schedule A hereto (such securities, together with any other securities
of Parent acquired by such Securityholder after the date hereof and during the term of this Agreement, collectively referred to herein
as the “Subject Securities”);
WHEREAS,
concurrently with the execution of this Agreement, Parent, Arrow Merger Sub, Inc., a Delaware corporation and a direct wholly owned
Subsidiary of Parent (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger (as amended,
restated or supplemented from time to time, the “Merger Agreement”), pursuant to which, upon the terms and subject
to the conditions thereof and in accordance with the applicable provisions of the DGCL, Merger Sub will be merged with and into the Company,
with the Company to be the surviving corporation of such merger (the “Merger”); and
WHEREAS,
in order to induce the Company to enter into the Merger Agreement and in consideration of the execution thereof by the Company and to
enhance the likelihood that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the “Transactions”)
will be consummated, each Securityholder, solely in such Securityholder’s capacity as holder of such Securityholder’s Subject
Securities, has entered into this Agreement and agrees to be bound hereby.
NOW
THEREFORE, in consideration of the promises, and of the representations, warranties, covenants and agreements contained herein,
and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
| 1. | No Transfer of Subject Securities.
From the date hereof until the Expiration Date, no Securityholder shall cause or permit any
Transfer (as defined below) of any of such Securityholder’s Subject Securities or enter
into any Contract, option or arrangement with respect to a Transfer of any of such Securityholder’s
Subject Securities. Following the date hereof and except as required by this Agreement, no
Securityholder shall deposit (or permit the deposit of) any of such Securityholder’s
Subject Securities in a voting trust or grant any proxy or enter into any voting agreement
or similar agreement with respect to any of such Securityholder’s Subject Securities
or in any way grant any other Person any right whatsoever with respect to the voting or disposition
of any of such Securityholder’s Subject Securities. For purposes hereof, a Person shall
be deemed to have effected a “Transfer” of Subject Securities if such
Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with
respect to, transfers, assigns, or otherwise disposes of any Subject Securities, or any interest
in such Subject Securities; or (b) enters into an agreement or commitment providing
for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer
of or disposition of such Subject Securities or any interest therein. Notwithstanding the
foregoing, each Securityholder may make (i) solely with respect to a Securityholder
who is an individual, transfers by will or by operation of law or other transfers for estate-planning
purposes or charitable purposes (provided that, in each such case, the applicable
transferee has signed a voting agreement in substantially the form hereof), (ii) with
respect to such Securityholder’s Parent Stock Options (if any) which expire on or prior
to the termination of this Agreement, transfers, sale, or other disposition of such Securityholder’s
Subject Securities to Parent as payment for or to fund the payment of the (A) exercise
price of such Securityholder’s Parent Stock Options and (B) Taxes applicable to
the exercise of such Securityholder’s Parent Stock Options, (iii) if such Securityholder
is a partnership or limited liability company, a transfer to one or more partners or members
of such Securityholder or to an Affiliated corporation, trust or other entity under common
control with such Securityholder, or if such Securityholder is a trust, a transfer to a beneficiary
(provided that, in each such case, the applicable transferee has signed a voting agreement
in substantially the form hereof), (iv) transfers to a transferee that has signed a
voting agreement in substantially the form hereof or (v) pursuant to a Rule 10b5-1
trading plan of Parent that is in effect as of the date hereof. If any voluntary or involuntary
transfer of any Subject Securities covered hereby shall occur (including a transfer or disposition
permitted by clauses (i) through (v) hereof, sale by a Securityholder’s
trustee in bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the
transferee (which term, as used herein, shall include any and all transferees and subsequent
transferees of the initial transferee) shall take and hold such Subject Securities subject
to all of the restrictions, liabilities and rights under this Agreement, which shall continue
in full force and effect, notwithstanding that such transferee is not a Securityholder and
has not executed a counterpart hereof or joinder hereto. |
| 2. | Agreement to Vote Shares; Irrevocable
Proxy. |
(a) At
any meeting of stockholders of Parent or at any adjournment, postponement or recess thereof, in any action by written consent or in any
other circumstances upon which Securityholder’s vote, consent or other approval is sought with respect to the Parent Share Issuance,
each Securityholder shall (i) appear (in person or by proxy) at each such meeting or otherwise cause all of such Securityholder’s
Subject Securities that such Securityholder is entitled to vote to be counted as present thereat for purposes of calculating a quorum
and (ii) vote (or cause to be voted, in person or by proxy), as applicable, all of such Securityholder’s Subject Securities
that are then entitled to be voted (A) in favor of: (1) the Parent Share Issuance, (2) any other proposals presented by
Parent to its stockholders to effect or facilitate the Transactions in accordance with the Merger Agreement and (3) any proposal
to adjourn or postpone such meeting of stockholders of Parent to a later date if there are not sufficient votes to approve the Parent
Share Issuance or there are not sufficient shares of Parent Common Stock represented to constitute a quorum necessary to conduct the
business of the Parent Stockholders Meeting; and (B) against (1) any Parent Acquisition Proposal or any of the transactions
contemplated thereby, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach
of any covenant, representation or warranty, or any other obligation or agreement of Parent under the Merger Agreement or of such Securityholder
under this Agreement and (3) any action, proposal, transaction, or agreement that could reasonably be expected to impede, interfere
with, delay, discourage, adversely affect, or inhibit the timely consummation of the Transactions or the fulfillment of Parent’s
conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of Parent (including any amendments
to the Parent Charter or the Parent Bylaws), in each case, except as required by the Merger Agreement.
(b) Each
Securityholder agrees that such Securityholder’s Subject Securities that are entitled to be voted shall be voted (or caused to
be voted) as set forth in this Section 2 whether or not such Securityholder’s vote, consent or other approval is sought
on only one or on any combination of the matters set forth in this Section 2 and at any time or at multiple times during
the term of this Agreement.
| 3. | No Solicitation. Subject to Section 7,
each Securityholder, solely in its capacity as such, shall not, and shall cause its Subsidiaries
and its and its Subsidiaries’ directors and officers to not, and shall use its reasonable
best efforts to cause its Affiliates and Representatives not to, directly or indirectly:
(a) solicit, initiate, knowingly induce, knowingly encourage or knowingly facilitate
(including by way of granting a waiver under Section 203 of the DGCL), any inquiries
or the making of any proposal or offer that constitutes, or could reasonably be expected
to lead to, a Parent Acquisition Proposal; (b) participate in any discussions or negotiations
or cooperate in any way with any Person regarding any proposal or offer the consummation
of which would constitute a Parent Acquisition Proposal; (c) provide any information
or data concerning Parent or any of its Subsidiaries to any Person in connection with any
proposal the consummation of which would constitute a Parent Acquisition Proposal or for
the purpose of soliciting, initiating, inducing, encouraging or facilitating a Parent Acquisition
Proposal; (d) enter into any binding or nonbinding letter of intent, term sheet, memorandum
of understanding, merger agreement, acquisition agreement, agreement in principle, option
agreement, joint venture agreement, partnership agreement, lease agreement or other similar
agreement with respect to a Parent Acquisition Proposal or any proposal or offer that could
reasonably be expected to lead to a Parent Acquisition Proposal; (e) adopt, approve
or recommend or make any public statement approving or recommending any inquiry, proposal
or offer that constitutes, or could reasonably be expected to lead to, a Parent Acquisition
Proposal (including by approving any transaction, or approving any Person becoming an “interested
stockholder,” for purposes of Section 203 of the DGCL); (f) take any action
to exempt any Person (other than the Company and its Subsidiaries) from the restriction on
“business combinations” or any similar provision contained in applicable takeover
laws or the Parent Charter or the Parent Bylaws; or (g) resolve, publicly propose or
agree to do any of the foregoing. |
| 4. | Confidentiality; Public Disclosure;
Further Assurances. |
(a) From
the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with Section 6,
each Securityholder shall not, and shall cause its Affiliates to not, make any public announcements regarding this Agreement, the Merger
Agreement or the Transactions or the transactions contemplated hereby; provided, however, that nothing herein shall be
deemed to prohibit such public announcement (i) that the Company and Parent mutually agree upon in writing or (ii) that is
required by obligations pursuant to any listing agreement with any national securities exchange or stock market or applicable Law.
(b) Each
Securityholder hereby severally as to itself only, but not jointly with any other Securityholder, authorizes Parent and the Company to
publish and disclose in any public filing made in connection with the Merger Agreement and the Transactions and in any other announcement
or disclosure required or requested by applicable Law, such Securityholder’s identity and ownership of the Subject Securities and
the nature of such Securityholder’s obligations under this Agreement and authorizes the Company and Parent to include this Agreement
as an exhibit to any filing required to be made by the Company or Parent with the SEC in connection with the Merger Agreement and the
Transactions.
(c) From
time to time and without additional consideration, each Securityholder shall execute and deliver, or cause to be executed and delivered,
such additional instruments, and shall take such further actions, as the Company or Parent may reasonably request for the purpose of
carrying out the intent of this Agreement and the Merger Agreement.
| 5. | Representations
and Warranties of Securityholder(s). Each Securityholder hereby severally as to
itself only, but not jointly with any other Securityholder represents and warrants as follows: |
(a) Such
Securityholder (i) is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the Subject Securities
set forth opposite its name on Schedule A, free and clear of any Liens, adverse claims, charges or other encumbrances of
any nature whatsoever (other than pursuant to (A) restrictions on transfer under applicable securities Laws or (B) this Agreement),
and (ii) does not beneficially own any securities of Parent (including options or convertible securities) other than the Subject
Securities set forth opposite its name on Schedule A.
(b) Except
with respect to obligations under the Parent Charter and the Parent Bylaws, as applicable, such Securityholder has the sole right to
Transfer, to vote (or cause to vote) and to direct (or cause to direct) the voting of such Securityholder’s Subject Securities,
and none of such Securityholder’s Subject Securities are subject to any voting trust or other Contract, arrangement or restriction
with respect to the Transfer or the voting of such Securityholder’s Subject Securities (other than restrictions on transfer under
applicable securities Laws), except as set forth in this Agreement.
(c) Such
Securityholder (i) if not a natural person, is duly organized, validly existing and in good standing under the Laws of its jurisdiction
of organization and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by such
Securityholder of this Agreement, the consummation by such Securityholder of the transactions contemplated hereby and the compliance
by such Securityholder with the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other
action on the part of such Securityholder, and no other corporate, company, partnership or other proceedings on the part of such Securityholder
are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by such Securityholder, constitutes a valid and binding obligation of such Securityholder
and, assuming due authorization, execution and delivery by the other parties hereto, is enforceable against such Securityholder in accordance
with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e) With
respect to such Securityholder, as of the date hereof, there is no Legal Proceeding pending against such Securityholder or, to the knowledge
of such Securityholder, threatened against such Securityholder or any of its Subsidiaries or Affiliates, or any Judgement to which such
Securityholder or any of its Subsidiaries or Affiliates (if such Securityholder is not a natural person) is subject that would reasonably
be expected to question the beneficial or record ownership of such Securityholder’s Subject Securities, the validity of this Agreement
or the performance by such Securityholder of its obligations under this Agreement.
(f) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of such Securityholder, if applicable, (ii) any violation
or breach of, or default (with or without notice or lapse of time, or both) under any applicable Law or Judgment, in each case, applicable
to such Securityholder or its properties or assets, or (iii) any violation or breach of, or default (with or without notice or lapse
of time, or both) under any Contract, obligation or restriction of any kind to which such Securityholder is a party or by which such
Securityholder or such Securityholder’s assets are bound.
(g) Except
for this Agreement, such Securityholder (i) has not entered into any voting agreement, voting trust or similar agreement or understanding
with respect to any of such Securityholder’s Subject Securities, and shall not enter into any other voting agreement, voting trust
or similar agreement or understanding with respect to any of such Securityholder’s Subject Securities, (ii) has not granted,
and shall not grant at any time prior to the Expiration Date, a proxy, consent or power of attorney with respect to any of such Securityholder’s
Subject Securities (other than pursuant to Section 2), (iii) has not given, and shall not give, prior to the Expiration
Date, any voting instructions or authorities in any manner inconsistent with Section 1 or Section 2, with respect
to any of such Securityholder’s Subject Securities and (iv) has not taken and shall not take any action that would reasonably
be expected to constitute a breach hereof or make any representation or warranty of such Securityholder contained herein untrue or incorrect
or have the effect of preventing such Securityholder from performing any of its obligations under this Agreement.
| 6. | Termination. This Agreement shall
terminate upon the earliest to occur of: (a) the Effective Time, (b) such date
and time as the Merger Agreement shall be validly terminated in accordance with its terms,
(c) as to a Securityholder, such date and time as any amendment or change to the Merger
Agreement is effected without such Securityholder’s prior written consent that increases
the amount of, changes the form of, or otherwise materially and adversely affects, the consideration
payable by Parent under the Merger Agreement; provided, that, with respect to this
clause (c), such Securityholder shall provide written notice to the Company of such
termination, including the reasonable basis for such termination, and this Agreement shall
remain in full force and effect as to any other Securityholder that is a party to this Agreement
and has not delivered such a notice pursuant to this clause (c), and (d) by written
agreement of the Company and each Securityholder party hereto (the first to occur of clauses (a) through
(d), the “Expiration Date”). In the event of the termination of this Agreement,
this Agreement shall forthwith become null and void, there shall be no liability on the part
of any of the parties, and all rights and obligations of each party hereto shall cease; provided,
however, that no such termination of this Agreement shall relieve any party hereto
from any liability for such party’s fraud or willful breach of any provision of this
Agreement prior to such termination and the provisions of this Section 6 shall
survive any termination of this Agreement. |
| 7. | No Agreement as Director, Officer
or Employee. No Securityholder makes any agreement or understanding in this Agreement
in such Securityholder’s capacity as a director, officer or employee of Parent or any
of its Subsidiaries (if such Securityholder holds such office), and nothing in this Agreement:
(a) will limit or affect any actions or omissions taken by such Securityholder in such
Securityholder’s capacity as such a director, officer or employee of Parent, including
in exercising rights under the Merger Agreement, and no such actions or omissions shall be
deemed a breach of this Agreement; or (b) will be construed to prohibit, limit, or restrict
such Securityholder from exercising its fiduciary duties, or any other duty (including duties
as an employee), as a director or officer of Parent or any of its Subsidiaries to Parent
or its stockholders. |
| 8. | Opportunity to Review. Each Securityholder
acknowledges receipt of the Merger Agreement and represents that he, she, or it has had (a) the
opportunity to review, and has read, reviewed and understands, the terms and conditions of
the Merger Agreement and this Agreement, and (b) the opportunity to review and discuss
the Merger Agreement, this Agreement, the Transactions and the transactions contemplated
hereby with his, her or its own advisors and legal counsel. |
| 9. | No Securityholder Litigation.
Each Securityholder agrees not to commence or participate in, and to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise,
that may be brought against the Company, Parent, Merger Sub or any of their respective successors
and assigns relating to the negotiation, execution or delivery of this Agreement, the Merger
Agreement or the consummation of the Transactions or the transactions contemplated hereby;
provided that this Section 9 shall not be deemed a waiver of any rights
of such Securityholder or its Affiliates for any breach of this Agreement or the Merger Agreement
by Parent, the Company or any of their respective Affiliates. |
(a) Notices.
Any notice or other communication required or permitted to be delivered to a party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received: (i) upon receipt when delivered by hand, (ii) one (1) Business Day after
being sent by registered mail or by courier or express delivery service, (iii) if sent by email transmission prior to 5:00 p.m. Eastern
Time, upon transmission thereof (provided that no bounceback or similar “undeliverable” message is received by such sender)
or (iv) if sent by email transmission after 5:00 p.m. Eastern Time, the Business Day following the date of transmission
(provided that no bounceback or similar “undeliverable” message is received by such sender); provided, that, in each
case, the notice or other communication is sent to the physical address or email address, as applicable, set forth beneath the name of
such party below (or to such other person, physical address or email address as such party shall have specified in a written notice given
to the other Party in accordance with the notice provisions hereof):
if to the Company:
ACELYRIN, Inc.
4149 Liberty Canyon
Road
Agoura Hills, CA
91301
Attention: [***]
Email: [***]
with a copy (which
shall not constitute notice) to:
Fenwick & West LLP
902 Broadway
18th Floor
New York, NY 10010
Attention: Stefano Quintini; Ethan
A. Skerry; Jeremy R. Delman
Email: squintini@fenwick.com; eskerry@fenwick.com;
jdelman@fenwick.com
If to any Securityholder,
to the address or email address set forth opposite the name of such Securityholder on Schedule A hereto.
(b) Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, each Securityholder agrees that this Agreement
and the obligations hereunder shall attach to the Subject Securities from the date hereof through the Expiration Date and shall, to the
extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of such Securityholder’s
Subject Securities shall pass, whether by operation of law or otherwise, including such Securityholder’s heirs, guardians, administrators
or successors, and such Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
(c) Incorporation.
Sections 8.2 (Amendment), 8.5 (Counterparts; Effectiveness; Electronic Signature), 8.6 (Governing Law; Jurisdiction
and Venue; WAIVER OF JURY TRIAL), 8.12 (Severability) and 8.14 (Interpretation; Construction) of the Merger Agreement
shall apply to this Agreement, mutatis mutandis, as if such provisions had been fully set forth herein.
(d) Specific
Performance. Each Securityholder acknowledges and agrees that irreparable damage would occur and that the Company would not have
any adequate remedy at law if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise
breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Company
shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of
the terms and provisions hereof in accordance with Section 8.6 of the Merger Agreement, without proof of actual damages (and each
Securityholder hereby waives any requirement for the security or posting of any bond in connection with such remedy), this being in addition
to any other remedy to which they are entitled at law or in equity. Each Securityholder further agrees not to assert that a remedy of
specific enforcement is unenforceable, invalid, contrary to applicable Law or inequitable for any reason, and not to assert that a remedy
of monetary damages would provide an adequate remedy for any such breach or that the Company otherwise has an adequate remedy at law.
(e) Entire
Agreement. This Agreement (including the provisions of the Merger Agreement referenced herein) and the other documents and instruments
executed pursuant hereto constitute the entire agreement, and supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject matter hereof.
(f) No
Agreement Until Merger Agreement Effective. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a Contract or understanding between the parties hereto unless and until
(a) Parent Board has approved, for purposes of any applicable anti-takeover Laws and any applicable provision of the Parent Charter,
the Merger Agreement and the Transactions; (b) the Merger Agreement is executed and delivered by all parties thereto; and (c) this
Agreement is executed and delivered by all parties hereto.
[The
remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of the date first above written.
| |
[SECURITYHOLDER] |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[Signature Page to Voting and Support
Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of the date first above written.
| |
ACELYRIN, INC. |
| |
|
| |
By: |
|
| |
Name: |
Mina Kim |
| |
Title: |
Chief Executive Officer |
[Signature Page to Voting and Support
Agreement]
SCHEDULE A
Name, Address and Electronic
Mail Address of
Securityholder |
|
Number and
Class of Subject Securities |
Schedule A
Exhibit 99.4
VOTING
AND Support AGREEMENT
This VOTING AND SUPPORT
AGREEMENT (this “Agreement”) is made and entered into as of February 6, 2025, by and among Alumis Inc., a
Delaware corporation (“Parent”), Arrow Merger Sub, Inc., a Delaware corporation and a direct wholly owned Subsidiary
of Parent (“Merger Sub”) and the stockholder(s) of ACELYRIN, Inc., a Delaware corporation (the “Company”)
listed on Schedule A hereto (each, a “Securityholder”). Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, each Securityholder
is the record or beneficial owner of the securities of the Company (including options and convertible securities) as set forth opposite
such Securityholder’s name on Schedule A hereto (such securities, together with any other securities of the Company
acquired by such Securityholder after the date hereof and during the term of this Agreement, collectively referred to herein as the “Subject
Securities”);
WHEREAS, concurrently
with the execution of this Agreement, Parent, Merger Sub and the Company are entering into an Agreement and Plan of Merger (as amended,
restated or supplemented from time to time, the “Merger Agreement”), pursuant to which, upon the terms and subject
to the conditions thereof and in accordance with the applicable provisions of the DGCL, Merger Sub will be merged with and into the Company,
with the Company to be the surviving corporation of such merger (the “Merger”); and
WHEREAS, in order
to induce Parent and Merger Sub to enter into the Merger Agreement and in consideration of the execution thereof by Parent and Merger
Sub and to enhance the likelihood that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the
“Transactions”) will be consummated, each Securityholder, solely in such Securityholder’s capacity as holder
of such Securityholder’s Subject Securities, has entered into this Agreement and agrees to be bound hereby.
NOW THEREFORE, in
consideration of the promises, and of the representations, warranties, covenants and agreements contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
| 1. | No Transfer of Subject Securities.
From the date hereof until the Expiration Date, no Securityholder shall cause or permit any
Transfer (as defined below) of any of such Securityholder’s Subject Securities or enter
into any Contract, option or arrangement with respect to a Transfer of any of such Securityholder’s
Subject Securities. Following the date hereof and except as required by this Agreement or
Section 2.2(b) of the Merger Agreement, no Securityholder shall deposit (or permit
the deposit of) any of such Securityholder’s Subject Securities in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement with respect to any
of such Securityholder’s Subject Securities or in any way grant any other Person any
right whatsoever with respect to the voting or disposition of any of such Securityholder’s
Subject Securities. For purposes hereof, a Person shall be deemed to have effected a “Transfer”
of Subject Securities if such Person directly or indirectly: (a) sells, pledges, encumbers,
grants an option with respect to, transfers, assigns, or otherwise disposes of any Subject
Securities, or any interest in such Subject Securities; or (b) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such Subject Securities or any interest therein.
Notwithstanding the foregoing, each Securityholder may make (i) solely with respect
to a Securityholder who is an individual, transfers by will or by operation of law or other
transfers for estate-planning purposes or charitable purposes (provided that, in each
such case, the applicable transferee has signed a voting agreement in substantially the form
hereof), (ii) with respect to such Securityholder’s Company Options (if any) which
expire on or prior to the termination of this Agreement, transfers, sale, or other disposition
of such Securityholder’s Subject Securities to the Company as payment for or to fund
the payment of the (A) exercise price of such Securityholder’s Company Options
and (B) Taxes applicable to the exercise of such Securityholder’s Company Options,
(iii) with respect to such Securityholder’s Company RSUs or Company PSUs, as applicable,
(if any) (A) transfers for the net settlement of such Securityholder’s Company
RSUs or Company PSUs settled in Subject Securities (to pay any Tax withholding obligations)
or (B) transfers for receipt upon settlement of such Securityholder’s Company
RSUs or Company PSUs, and the sale of a sufficient number of such Subject Securities acquired
upon settlement of such securities as would generate sales proceeds sufficient to pay the
aggregate Taxes payable by such Securityholder as a result of such settlement, (iv) if
such Securityholder is a partnership or limited liability company, a transfer to one or more
partners or members of such Securityholder or to an Affiliated corporation, trust or other
entity under common control with such Securityholder, or if such Securityholder is a trust,
a transfer to a beneficiary (provided that, in each such case, the applicable transferee
has signed a voting agreement in substantially the form hereof), (v) transfers to a
transferee that has signed a voting agreement in substantially the form hereof or (vi) pursuant
to a Rule 10b5-1 trading plan of the Company that is in effect as of the date hereof.
If any voluntary or involuntary transfer of any Subject Securities covered hereby shall occur
(including a transfer or disposition permitted by clauses (i) through (vi) hereof,
sale by a Securityholder’s trustee in bankruptcy, or a sale to a purchaser at any creditor’s
or court sale), the transferee (which term, as used herein, shall include any and all transferees
and subsequent transferees of the initial transferee) shall take and hold such Subject Securities
subject to all of the restrictions, liabilities and rights under this Agreement, which shall
continue in full force and effect, notwithstanding that such transferee is not a Securityholder
and has not executed a counterpart hereof or joinder hereto. |
| 2. | Agreement to Vote Shares; Irrevocable
Proxy. |
(a) At
any meeting of stockholders of the Company or at any adjournment, postponement or recess thereof, in any action by written consent or
in any other circumstances upon which Securityholder’s vote, consent or other approval is sought with respect to the Transactions
(including the Company Stockholder Approval), each Securityholder shall (i) appear (in person or by proxy) at each such meeting
or otherwise cause all of such Securityholder’s Subject Securities that such Securityholder is entitled to vote to be counted as
present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted, in person or by proxy), as applicable,
all of such Securityholder’s Subject Securities that are then entitled to be voted (A) in favor of: (1) the adoption
of the Merger Agreement and approval of the Transactions, (2) any other proposals presented by the Company to its stockholders to
effect or facilitate the Transactions in accordance with the Merger Agreement and (3) any proposal to adjourn or postpone such meeting
of stockholders of the Company to a later date if there are not sufficient votes to adopt the Merger Agreement and approve the Transactions
or there are not sufficient Shares represented to constitute a quorum necessary to conduct the business of the Company Stockholders Meeting;
and (B) against (1) any Company Acquisition Proposal or any of the transactions contemplated thereby, (2) any action,
proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty,
or any other obligation or agreement of the Company under the Merger Agreement or of such Securityholder under this Agreement and (3) any
action, proposal, transaction, or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely
affect, or inhibit the timely consummation of the Transactions or the fulfillment of the Company’s conditions under the Merger
Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Company Charter
or the Company Bylaws), in each case, except as required by the Merger Agreement.
(b) Each
Securityholder agrees that such Securityholder’s Subject Securities that are entitled to be voted shall be voted (or caused to
be voted) as set forth in this Section 2 whether or not such Securityholder’s vote, consent or other approval is sought
on only one or on any combination of the matters set forth in this Section 2 and at any time or at multiple times during
the term of this Agreement.
| 3. | No Solicitation. Subject to Section 7,
each Securityholder, solely in its capacity as such, shall not, and shall cause its Subsidiaries
and its and its Subsidiaries’ directors and officers to not, and shall use its reasonable
best efforts to cause its Affiliates and Representatives not to, directly or indirectly:
(a) solicit, initiate, knowingly induce, knowingly encourage or knowingly facilitate
(including by way of granting a waiver under Section 203 of the DGCL), any inquiries
or the making of any proposal or offer that constitutes, or could reasonably be expected
to lead to, a Company Acquisition Proposal; (b) participate in any discussions or negotiations
or cooperate in any way with any Person regarding any proposal or offer the consummation
of which would constitute a Company Acquisition Proposal; (c) provide any information
or data concerning the Company or any of its Subsidiaries to any Person in connection with
any proposal the consummation of which would constitute a Company Acquisition Proposal or
for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company
Acquisition Proposal; (d) enter into any binding or nonbinding letter of intent, term
sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in
principle, option agreement, joint venture agreement, partnership agreement, lease agreement
or other similar agreement with respect to a Company Acquisition Proposal or any proposal
or offer that could reasonably be expected to lead to a Company Acquisition Proposal; (e) adopt,
approve or recommend or make any public statement approving or recommending any inquiry,
proposal or offer that constitutes, or could reasonably be expected to lead to, a Company
Acquisition Proposal (including by approving any transaction, or approving any Person becoming
an “interested stockholder,” for purposes of Section 203 of the DGCL); (f) take
any action to exempt any Person (other than Parent and its Subsidiaries) from the restriction
on “business combinations” or any similar provision contained in applicable takeover
laws or the Company Charter or the Company Bylaws; or (g) resolve, publicly propose
or agree to do any of the foregoing. |
| 4. | Confidentiality; Public Disclosure;
Further Assurances. |
(a) From
the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with Section 6,
each Securityholder shall not, and shall cause its Affiliates to not, make any public announcements regarding this Agreement, the Merger
Agreement or the Transactions or the transactions contemplated hereby; provided, however, that nothing herein shall be
deemed to prohibit such public announcement (i) that the Company and Parent mutually agree upon in writing or (ii) that is
required by obligations pursuant to any listing agreement with any national securities exchange or stock market or applicable Law.
(b) Each
Securityholder hereby severally as to itself only, but not jointly with any other Securityholder, authorizes Parent and the Company to
publish and disclose in any public filing made in connection with the Merger Agreement and the Transactions and in any other announcement
or disclosure required or requested by applicable Law, such Securityholder’s identity and ownership of the Subject Securities and
the nature of such Securityholder’s obligations under this Agreement and authorizes the Company and Parent to include this Agreement
as an exhibit to any filing required to be made by the Company with the SEC in connection with the Merger Agreement and the Transactions.
(c) From
time to time and without additional consideration, each Securityholder shall execute and deliver, or cause to be executed and delivered,
such additional instruments, and shall take such further actions, as the Company or Parent may reasonably request for the purpose of
carrying out the intent of this Agreement and the Merger Agreement.
| 5. | Representations and Warranties of
Securityholder(s). Each Securityholder hereby severally as to itself only, but not jointly
with any other Securityholder represents and warrants as follows: |
(a) Such
Securityholder (i) is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the Subject Securities
set forth opposite its name on Schedule A, free and clear of any Liens, adverse claims, charges or other encumbrances of
any nature whatsoever (other than pursuant to (A) restrictions on transfer under applicable securities Laws or (B) this Agreement),
and (ii) does not beneficially own any securities of the Company (including options or convertible securities) other than the Subject
Securities set forth opposite its name on Schedule A.
(b) Except
with respect to obligations under the Company Charter and the Company Bylaws, as applicable, such Securityholder has the sole right to
Transfer, to vote (or cause to vote) and to direct (or cause to direct) the voting of such Securityholder’s Subject Securities,
and none of such Securityholder’s Subject Securities are subject to any voting trust or other Contract, arrangement or restriction
with respect to the Transfer or the voting of such Securityholder’s Subject Securities (other than restrictions on transfer under
applicable securities Laws), except as set forth in this Agreement.
(c) Such
Securityholder (i) if not a natural person, is duly organized, validly existing and in good standing under the Laws of its jurisdiction
of organization and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by such
Securityholder of this Agreement, the consummation by such Securityholder of the transactions contemplated hereby and the compliance
by such Securityholder with the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other
action on the part of such Securityholder, and no other corporate, company, partnership or other proceedings on the part of such Securityholder
are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by such Securityholder, constitutes a valid and binding obligation of such Securityholder
and, assuming due authorization, execution and delivery by the other parties hereto, is enforceable against such Securityholder in accordance
with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e) With
respect to such Securityholder, as of the date hereof, there is no Legal Proceeding pending against such Securityholder or, to the knowledge
of such Securityholder, threatened against such Securityholder or any of its Subsidiaries or Affiliates, or any Judgement to which such
Securityholder or any of its Subsidiaries or Affiliates (if such Securityholder is not a natural person) is subject that would reasonably
be expected to question the beneficial or record ownership of such Securityholder’s Subject Securities, the validity of this Agreement
or the performance by such Securityholder of its obligations under this Agreement.
(f) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of such Securityholder, if applicable, (ii) any violation
or breach of, or default (with or without notice or lapse of time, or both) under any applicable Law or Judgment, in each case, applicable
to such Securityholder or its properties or assets, or (iii) any violation or breach of, or default (with or without notice or lapse
of time, or both) under any Contract, obligation or restriction of any kind to which such Securityholder is a party or by which such
Securityholder or such Securityholder’s assets are bound.
(g) Except
for this Agreement, such Securityholder (i) has not entered into any voting agreement, voting trust or similar agreement or understanding
with respect to any of such Securityholder’s Subject Securities, and shall not enter into any other voting agreement, voting trust
or similar agreement or understanding with respect to any of such Securityholder’s Subject Securities, (ii) has not granted,
and shall not grant at any time prior to the Expiration Date, a proxy, consent or power of attorney with respect to any of such Securityholder’s
Subject Securities (other than pursuant to Section 2), (iii) has not given, and shall not give, prior to the Expiration
Date, any voting instructions or authorities in any manner inconsistent with Section 1 or Section 2, with respect
to any of such Securityholder’s Subject Securities and (iv) has not taken and shall not take any action that would reasonably
be expected to constitute a breach hereof or make any representation or warranty of such Securityholder contained herein untrue or incorrect
or have the effect of preventing such Securityholder from performing any of its obligations under this Agreement.
| 6. | Termination. This Agreement shall
terminate upon the earliest to occur of: (a) the Effective Time, (b) such date
and time as the Merger Agreement shall be validly terminated in accordance with its terms,
(c) as to a Securityholder, such date and time as any amendment or change to the Merger
Agreement is effected without such Securityholder’s prior written consent that decreases
the amount, changes the form of, or otherwise materially and adversely affects, the consideration
payable in respect of such Securityholder’s Subject Securities under the Merger Agreement;
provided, that, with respect to this clause (c), such Securityholder shall provide
written notice to Parent of such termination, including the reasonable basis for such termination,
and this Agreement shall remain in full force and effect as to any other Securityholder that
is a party to this Agreement and has not delivered such a notice pursuant to this clause (c),
and (d) by written agreement of Parent and each Securityholder party hereto (the first
to occur of clauses (a) through (d), the “Expiration Date”).
In the event of the termination of this Agreement, this Agreement shall forthwith become
null and void, there shall be no liability on the part of any of the parties, and all rights
and obligations of each party hereto shall cease; provided, however, that no
such termination of this Agreement shall relieve any party hereto from any liability for
such party’s fraud or willful breach of any provision of this Agreement prior to such
termination and the provisions of this Section 6 shall survive any termination
of this Agreement. |
| 7. | No Agreement as Director, Officer
or Employee. No Securityholder makes any agreement or understanding in this Agreement
in such Securityholder’s capacity as a director, officer or employee of the Company
or any of its Subsidiaries (if such Securityholder holds such office), and nothing in this
Agreement: (a) will limit or affect any actions or omissions taken by such Securityholder
in such Securityholder’s capacity as such a director, officer or employee of the Company,
including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement; or (b) will be construed to prohibit, limit,
or restrict such Securityholder from exercising its fiduciary duties, or any other duty (including
duties as an employee), as a director or officer of the Company or any of its Subsidiaries
to the Company or its stockholders. |
| 8. | Opportunity to Review. Each Securityholder
acknowledges receipt of the Merger Agreement and represents that he, she, or it has had (a) the
opportunity to review, and has read, reviewed and understands, the terms and conditions of
the Merger Agreement and this Agreement, and (b) the opportunity to review and discuss
the Merger Agreement, this Agreement, the Transactions and the transactions contemplated
hereby with his, her or its own advisors and legal counsel. |
| 9. | No Securityholder Litigation.
Each Securityholder agrees not to commence or participate in, and to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise,
that may be brought against the Company, Parent, Merger Sub or any of their respective successors
and assigns relating to the negotiation, execution or delivery of this Agreement, the Merger
Agreement or the consummation of the Transactions or the transactions contemplated hereby;
provided that this Section 9 shall not be deemed a waiver of any rights
of such Securityholder or its Affiliates for any breach of this Agreement or the Merger Agreement
by Parent, the Company or any of their respective Affiliates. |
(a) Notices.
Any notice or other communication required or permitted to be delivered to a party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received: (i) upon receipt when delivered by hand, (ii) one (1) Business Day after
being sent by registered mail or by courier or express delivery service, (iii) if sent by email transmission prior to 5:00 p.m. Eastern
Time, upon transmission thereof (provided that no bounceback or similar “undeliverable” message is received by such sender)
or (iv) if sent by email transmission after 5:00 p.m. Eastern Time, the Business Day following the date of transmission
(provided that no bounceback or similar “undeliverable” message is received by such sender); provided, that, in each
case, the notice or other communication is sent to the physical address or email address, as applicable, set forth beneath the name of
such party below (or to such other person, physical address or email address as such party shall have specified in a written notice given
to the other Party in accordance with the notice provisions hereof):
if to Parent or
Merger Sub:
Alumis Inc.
280 East Grand Avenue
South San Francisco, CA 94080
Email: [***]
[***]
with a copy (which
shall not constitute notice) to:
Cooley LLP
3 Embarcadero Center
20th Floor
San Francisco, CA
94111-4004
Attention: Jamie
Leigh; Ben Beerle; Polina A. Demina
Email: jleigh@cooley.com;
bbeerle@cooley.com; pdemina@cooley.com
If to any Securityholder,
to the address or email address set forth opposite the name of such Securityholder on Schedule A hereto.
(b) Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, each Securityholder agrees that this Agreement
and the obligations hereunder shall attach to the Subject Securities from the date hereof through the Expiration Date and shall, to the
extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of such Securityholder’s
Subject Securities shall pass, whether by operation of law or otherwise, including such Securityholder’s heirs, guardians, administrators
or successors, and such Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
(c) Incorporation.
Sections 8.2 (Amendment), 8.5 (Counterparts; Effectiveness; Electronic Signature), 8.6 (Governing Law; Jurisdiction
and Venue; WAIVER OF JURY TRIAL), 8.12 (Severability) and 8.14 (Interpretation; Construction) of the Merger Agreement
shall apply to this Agreement, mutatis mutandis, as if such provisions had been fully set forth herein.
(d) Specific
Performance. Each Securityholder acknowledges and agrees that irreparable damage would occur and that Parent would not have any adequate
remedy at law if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached,
and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that Parent shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms
and provisions hereof in accordance with Section 8.6 of the Merger Agreement, without proof of actual damages (and each Securityholder
hereby waives any requirement for the security or posting of any bond in connection with such remedy), this being in addition to any
other remedy to which they are entitled at law or in equity. Each Securityholder further agrees not to assert that a remedy of specific
enforcement is unenforceable, invalid, contrary to applicable Law or inequitable for any reason, and not to assert that a remedy of monetary
damages would provide an adequate remedy for any such breach or that Parent otherwise has an adequate remedy at law.
(e) Entire
Agreement. This Agreement (including the provisions of the Merger Agreement referenced herein) and the other documents and instruments
executed pursuant hereto constitute the entire agreement, and supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject matter hereof.
(f) No
Agreement Until Merger Agreement Effective. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a Contract or understanding between the parties hereto unless and until
(a) the Company Board has approved, for purposes of any applicable anti-takeover Laws and any applicable provision of the Company
Charter, the Merger Agreement and the Transactions; (b) the Merger Agreement is executed and delivered by all parties thereto; and
(c) this Agreement is executed and delivered by all parties hereto.
[The remainder of this page is intentionally
left blank.]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of the date first above written.
| |
[SECURITYHOLDER] |
| |
|
| |
By: |
|
| |
Name: |
| |
Title: |
[Signature Page to Voting and Support
Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of the date first above written.
| |
Alumis Inc. |
| |
|
| |
By: |
|
| |
Name: |
Martin Babler |
| |
Title: |
Chief Executive Officer |
| |
Arrow Merger Sub, Inc. |
| |
|
| |
By: |
|
| |
Name: |
Sara Klein |
| |
Title: |
President |
[Signature Page to
Voting and Support Agreement]
SCHEDULE A
Name, Address
and Electronic Mail Address of
Securityholder |
|
Number
and Class of Subject Securities |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
Alumis (NASDAQ:ALMS)
Historical Stock Chart
From Jan 2025 to Feb 2025
Alumis (NASDAQ:ALMS)
Historical Stock Chart
From Feb 2024 to Feb 2025
