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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):
June 5, 2025
Elevation Oncology, Inc.
(Exact name of Registrant as Specified in its
Charter)
| Delaware |
001-40523 |
84-1771427 |
|
(State or Other Jurisdiction
of Incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
| |
|
|
|
101 Federal Street, Suite 1900
Boston, Massachusetts |
|
02110 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
(716) 371-1125
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
| ¨ |
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 Exchange Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
| Common stock, par value $0.0001 per share |
ELEV |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§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. |
Agreement and Plan of Merger
On June 8, 2025, Elevation Oncology, Inc. (the “Company”)
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Concentra Biosciences, LLC, a Delaware limited
liability company (“Concentra”), and Concentra Merger Sub VI, Inc., a Delaware corporation and a wholly owned subsidiary
of Concentra (“Merger Sub”). The Merger Agreement provides for, among other things: (i) the acquisition of all of the
Company’s outstanding shares of common stock, par value $0.0001 per share (the “Common Stock”) by Concentra through
a cash tender offer (the “Offer”) by Merger Sub, for a price per share of the Common Stock of (A) $0.36 in cash (the
“Cash Amount”), subject to applicable tax withholding and without interest; plus (B) one contingent value right (a “CVR”)
(such amount being the “CVR Amount” and the Cash Amount plus the CVR Amount, collectively being the “Offer Price”)
and (ii) the merger of Merger Sub with and into the Company (the “Merger”) with the Company surviving the Merger.
The Company’s Board of Directors (the “Board”), has
unanimously: (i) determined that the Offer, the Merger and the other transactions contemplated by the Merger Agreement and the CVR
Agreement (as defined below) (collectively, the “Transactions”) are fair to, and in the best interest of, the Company and
its stockholders; (ii) approved and declared advisable the Merger and the execution, delivery and performance by the Company of the
Merger Agreement and the consummation of the Transactions; (iii) resolved that the Merger Agreement and the Merger shall be governed
by and effected under Section 251(h) of the Delaware General Corporation Law (the “DGCL”) and that the Merger shall
be consummated as soon as practicable following the Offer Closing Time (as defined in the Merger Agreement); and (iv) recommended
that the Company’s stockholders accept the Offer and tender their shares of Common Stock pursuant to the Offer. Under the Merger
Agreement, Concentra is required to commence the Offer as promptly as practicable, and in any event no later than 10 business days after
the date of the Merger Agreement.
Pursuant to the terms of the Merger Agreement, as of immediately prior
to the effective time of the Merger (the “Effective Time”), by virtue of the Merger and without any action on the part of
the holders of Common Stock: (i) each outstanding share of Common Stock, other than any shares of Common Stock held in the treasury
of the Company, owned by Concentra, Merger Sub or any other subsidiary of Concentra, or by any stockholders of the Company who are entitled
to and who properly exercise appraisal rights under Delaware law, will be converted into the right to receive the Offer Price without
interest, less any applicable withholding taxes; (ii) each option to purchase shares of Common Stock from the Company (“Company
Stock Options,” and each, a “Company Stock Option”) shall be accelerated and (A) each Company Stock Option that
has an exercise price per share that is less than the Cash Amount (each, an “In-the-Money Option”) that is then outstanding
will be cancelled and, in exchange therefor, the holder of such cancelled In-the-Money Option will be entitled to receive in consideration
of the cancellation of such In-the-Money Option (x) an amount in cash without interest, less any applicable tax withholding, equal
to the product obtained by multiplying (1) the excess of the Cash Amount over the exercise price per share of Common Stock underlying
such In-the-Money Option by (2) the number of shares of Common Stock underlying such In-the-Money Option as of immediately prior
to the Effective Time and (y) one CVR for each share of Common Stock underlying such In-the-Money Option, and (B) each Company
Stock Option that has an exercise price per share that is equal to or greater than the Cash Amount that is then outstanding will be cancelled
for no consideration; and (iii) the vesting for each restricted stock unit of the Company (“Company Restricted Stock Units,”
and each, a “Company Restricted Stock Unit”) shall be accelerated and each Company Restricted Stock Unit that is then outstanding
will be cancelled and, in exchange therefor, the holder of such cancelled Company Restricted Stock Unit will be entitled to receive in
consideration of the cancellation of such Company Restricted Stock Unit (A) an amount in cash without interest, less any applicable
tax withholding, equal to the Cash Amount and (B) one CVR. In addition, at the Effective Time, the holders of the Company's outstanding
warrants to purchase 22,050,000 shares of Common Stock issued in connection with those certain Common Stock Purchase Warrant Agreements,
dated as of June 13, 2023, among the Company and the purchasers identified therein, will be entitled to receive an amount in cash
equal to the Black Scholes Value (as defined in such Warrant Agreements).
Merger Sub’s obligation to accept shares of Common Stock tendered
in the Offer is subject to conditions, including: (i) that the number of shares of Common Stock validly tendered (and not properly
withdrawn) prior to the expiration of the Offer (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet
been “received” by the “depository,” as such terms are defined by Section 251(h) of the DGCL) that,
when considered together with all other shares of the Company Common Stock (if any) owned by Merger Sub and its “affiliates”
(as defined in Section 251(h)(6)(a) of the DGCL, including Concentra), equals at least one share more than 50% of all shares
of Common Stock then issued and outstanding as of the expiration of the Offer; (ii) the absence of any Legal Restraint (as defined
in the Merger Agreement) in effect preventing or prohibiting the consummation of the Offer, the Merger or any of the other transactions
contemplated by the Merger Agreement or the CVR Agreement; (iii) the accuracy of the representations and warranties made by the Company
in the Merger Agreement, subject to specified materiality qualifications and exceptions; (iv) compliance by the Company with its
covenants under the Merger Agreement in all material respects; and (v) the Closing Net Cash (as defined in the Merger Agreement)
shall be no less than $26.4 million. The obligations of Concentra and Merger Sub to consummate the Offer and the Merger under the Merger
Agreement are not subject to a financing condition.
Following the completion of the Offer, upon the terms and subject to
the conditions of the Merger Agreement, Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned
subsidiary of Concentra, pursuant to the procedure provided for under Section 251(h) of the DGCL, without any additional Company
stockholder approvals. The Merger will be effected as soon as practicable following the time of purchase by Merger Sub of shares of Common
Stock validly tendered and not withdrawn in the Offer.
The Merger Agreement contains representations and warranties from both
the Company, on the one hand, and Concentra and Merger Sub, on the other hand, customary for a transaction of this nature. The Merger
Agreement also contains customary covenants and agreements, including with respect to the operations of the business of the Company between
the date of the Merger Agreement and the closing of the Merger.
The Merger Agreement contains customary termination rights for both
Concentra and Merger Sub, on the one hand, and the Company, on the other hand, including, among others, for failure to consummate the
Offer on or before September 6, 2025. If the Merger Agreement is terminated under certain circumstances specified in the Merger Agreement,
including in connection with the Company’s entry into an agreement with respect to a superior proposal, the Company will be required
to pay Concentra a termination fee of $1.2 million. If Concentra terminates the Merger Agreement due to the Company having Closing Net
Cash of less than $26.4 million, the Company will be required to reimburse expenses incurred by Concentra up to a maximum amount of $0.5
million.
The foregoing description of the Merger Agreement does not purport
to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto
and is incorporated herein by reference. The Merger Agreement and the foregoing description thereof has been included to provide investors
and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company,
Concentra, Merger Sub or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by
the Company, on the one hand, and Concentra and Merger Sub, on the other hand, made solely for the benefit of the other. The assertions
embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties in
negotiating the terms of the Merger Agreement, including information in confidential disclosure schedules delivered in connection with
the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified
date, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have
been used for the purpose of allocating risk between the Company, on the one hand, and Concentra and Merger Sub, on the other hand, rather
than establishing matters as facts. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by
any persons as characterizations of the actual state of facts about the Company, Concentra, Merger Sub or their respective subsidiaries
or affiliates at the time they were made or otherwise. In addition, 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 the Company’s
public disclosures.
Limited Guaranty
Concurrently with the execution of the Merger Agreement and the CVR
Agreement, and as a condition and inducement to the Company’s willingness to enter into the Merger Agreement, Tang Capital Partners,
LP, a Delaware limited partnership, has delivered to the Company a duly executed limited guaranty, dated as of the date of the Merger
Agreement, in favor of the Company, in respect of certain of Concentra and the Merger Sub’s obligations arising under, or in connection
with, the Merger Agreement and CVR Agreement. Certain obligations under the Limited Guaranty are subject to a cap of $21.4 million, plus
certain enforcement costs, under the Merger Agreement and an amount equivalent to the CVR Proceeds (as defined in the CVR Agreement),
plus certain enforcement costs, under the CVR Agreement.
Contingent Value Rights Agreement
At or prior to the time at which Merger Sub first irrevocably accepts
for purchase the shares of Common Stock tendered in the Offer, Concentra and Merger Sub expect to enter into a Contingent Value Rights
Agreement (the “CVR Agreement”) with a rights agent (“Rights Agent”) and a representative, agent and attorney-in-fact
of the holders of CVRs. Each CVR will represent a contractual right to receive contingent cash payments equal to: (i) 100% of the
amount by which Closing Net Cash (as finally determined pursuant to the Merger Agreement) exceeds $26.4 million, adjusted for any claims
Concentra reasonably determines to be valid that arise prior to 30 days following the Merger Closing Date (as defined in the Merger Agreement)
and that are not accounted for in such Closing Net Cash; and (ii) 80% of the Net Proceeds (as defined in the CVR Agreement), if any,
from any sale, transfer, license or other disposition (each, a “Disposition”) by Concentra or any of its affiliates, including
the Company after the Merger, of all or any part of the Company’s product candidate known as EO-1022, a HER3 antibody-drug conjugate
(ADC) (the “CVR Product”), that occurs within the period beginning on the Merger Closing Date and ending on the first (1st)
anniversary following the Merger Closing Date (the “Disposition Period”), and such Gross Proceeds (as defined in the Merger
Agreement) are received by the fifth (5th) anniversary of the Merger Closing Date. In the event that no CVR Proceeds are achieved
by the fifth (5th) anniversary of the Merger Closing Date, holders of the CVRs will not receive any payment pursuant to the
CVR Agreement. Concentra shall, and shall cause its subsidiaries, including the Company after the Merger, to use Commercially Reasonable
Efforts (as defined in the CVR Agreement) to, among other things, during the Disposition Period: (i) enter into one or more agreements
for a Disposition as soon as practicable following the Effective Time; (ii) continue to seek partnerships or investments for the
CVR Product; and (iii) continue the CMC Activities (as defined in the Merger Agreement).
The right to the contingent payments contemplated by the CVR Agreement
is a contractual right only and will not be transferable, except in the limited circumstances specified in the CVR Agreement. The CVRs
will not be evidenced by a certificate or any other instrument and will not be registered with the U.S. Securities and Exchange Commission
(the “SEC”). The CVRs will not have any voting or dividend rights and will not represent any equity or ownership interest
in Concentra, any constituent corporation party to the Merger or any of their respective affiliates.
The foregoing description of the CVR Agreement does not purport to
be complete and is qualified in its entirety by reference to the Form of CVR Agreement, a copy of which is filed as Exhibit 10.1
hereto and is incorporated herein by reference.
The CVR Agreement and the foregoing description thereof has been included
to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information
about the Company, Concentra, Merger Sub or their respective subsidiaries and affiliates. The CVR Agreement contains representations and
warranties by the Company, on the one hand, and Concentra and Merger Sub, on the other hand, made solely for the benefit of the other.
The assertions embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective
parties in negotiating the terms of the CVR Agreement, including information in confidential disclosure schedules delivered in connection
with the signing of the Merger Agreement. Moreover, certain representations and warranties in the CVR Agreement were made as of a specified
date, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have
been used for the purpose of allocating risk between the Company, on the one hand, and Concentra and Merger Sub, on the other hand, rather
than establishing matters as facts. Accordingly, the representations and warranties in the CVR Agreement should not be relied on by any
persons as characterizations of the actual state of facts about the Company, Concentra, Merger Sub or their respective subsidiaries or
affiliates at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and
warranties may change after the date of the CVR Agreement, which subsequent information may or may not be fully reflected in the Company’s
public disclosures.
Support Agreements
In connection with the execution of the Merger Agreement, Concentra
and Merger Sub entered into tender and support agreements (the “Support Agreements”) with the Company’s directors and
officers and certain affiliated stockholders of the Company. The Support Agreements provide that, among other things, those parties irrevocably
tender the shares of Common Stock held by them in the Offer, upon the terms and subject to the conditions of such agreements. The shares
of Common Stock subject to the Support Agreements comprise approximately 5.1 % of the outstanding shares of Common Stock. The Support
Agreements will terminate upon certain circumstances, including upon termination of the Merger Agreement or if the Board votes to approve
a superior proposal.
The form of the Support Agreement is included herein as Exhibit D
to Exhibit 2.1 attached hereto and is incorporated herein by reference. The foregoing description of the Support Agreements is qualified
in its entirety by reference to the full text thereof.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensation Arrangements of Certain Officers. |
CEO Transition
In connection with the Merger, the Company terminated the employment
of Joseph J. Ferra, Jr., as the Company’s President, Chief Executive Officer, effective as of June 30, 2025 (the “Separation
Date”), without cause. In connection with the termination, Mr. Ferra resigned from his position as a member of the Board, effective
as of the Separation Date.
In connection with Mr. Ferra’s departure, the Company entered
into a transition and separation agreement with Mr. Ferra (the “Ferra Separation Agreement”). Pursuant to the Ferra Separation
Agreement, Mr. Ferra will receive the following: (i) an amount equal to 12 months of his base salary as of the Separation Date,
payable in a cash lump-sum; (ii) to the extent Mr. Ferra timely elects to receive continued coverage under our group-healthcare
plans, the Company will continue to pay the full amount of his premium payments for such continued coverage for a period ending on the
earlier of (x) 12 months following the Separation Date and (y) the date that he become eligible for coverage under another employer’s
plans; and (iii) accelerated vesting of his equity awards as if an additional 12 months of vesting had occurred for any outstanding
and unvested awards as of the Separation Date. Further, in the event that a “change of control” of the Company (which includes
the closing of the Merger) occurs within six months of the Separation Date, then, upon the change of control, Mr. Ferra will be entitled
to: (i) an additional 6 months of severance plus 150% of his then-current annual target bonus opportunity, payable in a cash lump-sum;
(ii) a cash lump sum equal to 18 months of premium payments minus the number of premium payments already made between the
Separation Date and the change in control; (iii) a transaction bonus of $400,000; and (iv) 100% vesting acceleration of all
then-unvested and outstanding equity awards. The Ferra Separation Agreement also contains a general release of claims by Mr. Ferra.
The Company expects that Mr. Ferra will continue to assist the
Company as a consultant after the Separation Date in order to support the transition of his responsibilities.
The Ferra Separation Agreement is attached hereto as Exhibit 99.1
and is incorporated herein by reference. The foregoing summary is qualified entirely by reference to the full text of the Ferra Separation
Agreement.
President and Interim CEO Appointment
Effective as of the Separation Date, the Board appointed Tammy Furlong,
age 54, the Company’s Chief Financial Officer and Principal Financial and Accounting Officer, to succeed Mr. Ferra as President
and Interim Chief Executive Officer (“Interim CEO”). Ms. Furlong will also remain as the Company’s Chief Financial
Officer and Principal Financial and Accounting Officer.
Ms. Furlong has served as the Company’s Chief Financial
Officer and Principal Financial and Accounting Officer since July 2023. Ms. Furlong previously served as the Company’s
Vice President of Finance and Accounting from April 2021 to July 2023. Prior to joining the Company, Ms. Furlong served
as a finance consultant from September 2018 to March 2021, where she focused on capital raising, strategic transactions and
finance operations for multiple biotechnology and pharmaceutical companies. Ms. Furlong is a certified public accountant and received
a B.S. in Accounting from Adelphi University and an M.B.A from Bentley University.
There are no arrangements or understandings between Ms. Furlong
and any other persons, pursuant to which she was appointed as President and Interim CEO and principal executive officer, no family relationships
among any of the Company’s directors or executive officers and Ms. Furlong and she has no direct or indirect material interest
in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Ms. Furlong is also party to the Company’s standard form
of indemnification agreement. The form of the indemnification agreement was previously filed by the Company as Exhibit 10.1 to the
Form S-1/A filed by the Company with the SEC on June 21, 2021, and incorporated by reference herein.
Transaction Bonus
On June 8, 2025, the Compensation Committee of the Board approved
a one-time cash bonus payment to Ms. Furlong (the “Furlong Transaction Bonus”), in an amount equal to $600,000, less
withholdings and deductions, provided that Ms. Furlong remain employed by the Company in good standing on the closing of the Merger.
The Furlong Transaction Bonus will be paid in a cash lump sum at the closing of the Merger.
| Item 5.07. |
Submission of Matters to a Vote of Security Holders. |
On June 5, 2025, the Company held its 2025 Annual Meeting of Stockholders
(the “Annual Meeting”). The final voting results for each proposal considered at the Annual Meeting are set forth below. For
more information on the proposals, see the Company’s definitive proxy statement on Schedule 14A filed with the SEC on April 24,
2025.
Proposal
1: By the following vote, the following three persons were elected to serve as Class I directors until the Company’s
2028 annual meeting of stockholders and until such time as their successor has been duly elected and qualified or until their earlier
resignation or removal:
| Nominee | |
Shares For | | |
Shares Withheld | | |
Broker Non-Votes | |
| R. Michael Carruthers | |
| 10,920,550 | | |
| 6,871,238 | | |
| 22,056,143 | |
| Julie M. Cherrington, Ph.D. | |
| 10,638,797 | | |
| 7,152,991 | | |
| 22,056,143 | |
| Joseph J. Ferra, Jr. | |
| 11,407,466 | | |
| 6,384,322 | | |
| 22,056,143 | |
Proposal
2: By the following vote, the stockholders ratified the appointment of CohnReznick LLP as the Company’s independent
registered public accounting firm for the year ending December 31, 2025:
| Shares For | | |
Shares Against | | |
Shares Abstaining | | |
Broker Non-Votes | |
| 38,802,057 | | |
437,860 | | |
| 608,014 | | |
| 0 | |
Proposal
3: By the following vote, the stockholders approved for the Board to implement, at the Board's discretion, an amendment
to the Company’s Restated Certificate of Incorporation, as amended, to effect a reverse stock split of its outstanding shares of
common stock at a ratio of any whole number between 1-for-10 and 1-for-50, with the exact ratio to be determined by the Board, prior to
December 31, 2025, subject to the Board’s authority to abandon such amendment (without further action by the Company’s
stockholders):
| Shares For | | |
Shares Against | | |
Shares Abstaining | | |
Broker Non-Votes | |
| 30,753,362 | | |
8,952,458 | | |
| 142,111 | | |
| 0 | |
Proposal
4: By the following vote, the stockholders approved an adjournment of the Annual Meeting, if necessary, to solicit
additional proxies if there were not sufficient votes in favor of Proposal 3:
| Shares For | | |
Shares Against | | |
Shares Abstaining | | |
Broker Non-Votes | |
| 31,556,308 | | |
8,255,833 | | |
| 35,790 | | |
| 0 | |
| Item 7.01 |
Regulation FD Disclosure. |
On June 9, 2025, the Company issued a press release announcing
the signing of the Merger Agreement, a copy of which is attached hereto as Exhibit 99.2 and incorporated by reference herein.
The information contained in this Item 7.01, including Exhibit 99.2
attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed
incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth
by specific reference in such filing.
Important Additional Information and Where to Find It
The Offer described in this communication has not yet commenced, and
this communication is neither a recommendation, nor an offer to purchase nor a solicitation of an offer to sell any shares of the common
stock of the Company or any other securities, nor is it a substitute for the tender offer materials that Concentra and Merger Sub will
file with the SEC on commencement of the Offer. On the commencement date of the Offer, Concentra and Merger Sub will file with the SEC
a tender offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, and the Company
will file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9. The Offer to purchase the outstanding shares of Common
Stock will only be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule
TO.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE TENDER OFFER
MATERIALS (INCLUDING THE OFFER TO PURCHASE, A LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT
ON SCHEDULE 14D-9 REGARDING THE OFFER, AS THEY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION THAT INVESTORS AND SECURITY HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING
THEIR SHARES, INCLUDING THE TERMS AND CONDITIONS OF THE OFFER.
Investors and security holders may obtain a free copy of these statements
(when available) and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests
to the information agent for the Offer, which will be named in the tender offer statement. Investors and security holders may also obtain,
at no charge, the documents filed or furnished to the SEC by the Company under the “SEC Filings” subsection of the Company’s
website at https://investors.elevationoncology.com. The information contained in, or that can be accessed through, the Company’s
website is not a part of, or incorporated by reference herein. In addition to the Offer to Purchase, the related Letter of Transmittal
and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, the Company files annual, quarterly, and
current reports, proxy statements and other information with the SEC. You may read any reports, statements or other information filed
by the Company with the SEC for free on the SEC’s website at www.sec.gov.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains “forward-looking
statements” within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not limited to, statements
regarding the Company’s beliefs and expectations and statements about the Offer, the Merger and the other Transactions, the ability
to complete the transactions contemplated by the Merger Agreement, including the ability to satisfy the conditions to the consummation
of the Offer contemplated thereby and the other conditions set forth in the Merger Agreement, the timing of the Transactions, the potential
effects of the proposed Transactions on the Company and the potential payment of proceeds to the Company’s stockholders, if any,
pursuant to the CVR Agreement. These statements may be identified by their use of forward-looking terminology including, but not limited
to, “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,”
“goal,” “intend,” “may,” “might,” “plan,” “potential,” “predict,”
“project,” “should,” “target,” “will,” and “would,” and similar words expressions
are intended to identify forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future
performance and involve risks and uncertainties that could cause actual results to differ materially from those projected, expressed or
implied by such forward-looking statements. These risks and uncertainties include, but are not limited to: the possibility that various
closing conditions set forth in the Merger Agreement may not be satisfied or waived, including uncertainties as to the percentage of the
Company’s stockholders tendering their shares in the Offer; the possibility that competing offers will be made; the risk that the
Transactions may not be completed in a timely manner, or at all, which may adversely affect the Company’s business and the price
of its common stock; significant costs associated with the proposed Transactions; the risk that any stockholder litigation in connection
with the Transactions may result in significant costs of defense, indemnification and liability; the risk that activities related to the
CVR Agreement may not result in any value to the Company’s stockholders; and other risks and uncertainties discussed in the Company’s
most recent Annual Report on Form 10-K filed with the SEC on March 6, 2025 as well as in the Company’s subsequent filings
with the SEC. As a result of such risks and uncertainties, the Company’s actual results may differ materially from any future results,
performance or achievements discussed in or implied by the forward-looking statements contained herein. There can be no assurance that
the proposed Transactions will in fact be consummated. The Company cautions investors not to unduly rely on any forward-looking statements.
The forward-looking statements contained in this Current Report on
Form 8-K are made as of the date hereof, and the Company undertakes no obligation to update any forward-looking statements, whether
as a result of future events, new information or otherwise, except as expressly required by law. All forward-looking statements in this
document are qualified in their entirety by this cautionary statement.
| Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
| No. |
|
Description
of Exhibit |
| 2.1+ |
|
Agreement and Plan of Merger, dated June 8,
2025, by and among Concentra Biosciences, LLC, Concentra Merger Sub VI, Inc. and Elevation Oncology, Inc. |
| 10.1 |
|
Form of Contingent Value Rights Agreement by and
between Concentra Biosciences, LLC, Concentra Merger Sub VI, Inc., and a wholly owned Subsidiary of Concentra Biosciences, LLC |
| 99.1 |
|
Ferra Separation Agreement |
| 99.2 |
|
Press Release of Elevation Oncology, Inc. dated
June 9, 2025. |
| 104 |
|
Cover Page Interactive Data File (embedded within
the Inline XBRL document). |
| + |
Certain schedules and annexes have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules and annexes upon request by the SEC; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any annexes or schedules so furnished. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
Elevation Oncology, Inc. |
| |
|
|
| Date: June 9, 2025 |
By: |
/s/ Tammy Furlong |
| |
|
Tammy Furlong |
| |
|
Chief Financial Officer |
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
DATED
AS OF JUNE 8, 2025
AMONG
CONCENTRA BIOSCIENCES, LLC,
CONCENTRA MERGER SUB VI, INC.
AND
ELEVATION ONCOLOGY, INC.
Table
of Contents
Page
| Article I DEFINITIONS |
1 |
| Section 1.01 |
Definitions |
1 |
| Section 1.02 |
Interpretation and Rules of Construction |
12 |
| Article II THE OFFER |
13 |
| Section 2.01 |
The Offer |
13 |
| Section 2.02 |
Company Actions |
17 |
| Article III THE MERGER |
18 |
| Section 3.01 |
The Merger |
18 |
| Section 3.02 |
Merger Closing |
18 |
| Section 3.03 |
Effective Time |
18 |
| Section 3.04 |
Merger Without Meeting of Stockholders |
19 |
| Section 3.05 |
Effects of Merger |
19 |
| Section 3.06 |
Certificate of Incorporation and Bylaws |
19 |
| Section 3.07 |
Directors and Officers |
19 |
| Section 3.08 |
Effect on Capital Stock |
19 |
| Section 3.09 |
Payment of Merger Consideration |
20 |
| Section 3.10 |
Equity Awards; Company Warrants |
23 |
| Section 3.11 |
Contingent Value Right |
23 |
| Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
24 |
| Section 4.01 |
Organization, Standing and Power |
24 |
| Section 4.02 |
Capital Structure |
24 |
| Section 4.03 |
Subsidiaries; Equity Interests |
26 |
| Section 4.04 |
Authority; Execution and Delivery; Enforceability |
26 |
| Section 4.05 |
No Conflicts; Consents |
27 |
| Section 4.06 |
SEC Documents; Undisclosed Liabilities |
27 |
| Section 4.07 |
Information Supplied |
29 |
| Section 4.08 |
Absence of Certain Changes or Events |
29 |
| Section 4.09 |
Taxes |
31 |
| Section 4.10 |
Contracts |
32 |
| Section 4.11 |
Litigation |
34 |
| Section 4.12 |
Property |
34 |
| Section 4.13 |
Compliance with Laws |
34 |
| Section 4.14 |
Regulatory Matters |
34 |
| Section 4.15 |
Environmental Matters |
36 |
Table
of Contents
(continued)
Page
| Section 4.16 |
Labor Relations |
36 |
| Section 4.17 |
Employee Benefits |
37 |
| Section 4.18 |
Intellectual Property |
38 |
| Section 4.19 |
Privacy and Data Security |
38 |
| Section 4.20 |
Brokers and Other Advisors |
39 |
| Section 4.21 |
No Rights Agreement; Anti-Takeover Provisions |
39 |
| Section 4.22 |
Opinion of Financial Advisor |
39 |
| Section 4.23 |
No Vote Required |
39 |
| Article V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
39 |
| Section 5.01 |
Organization, Standing and Power |
39 |
| Section 5.02 |
Merger Sub |
40 |
| Section 5.03 |
Authority; Execution and Delivery; Enforceability |
40 |
| Section 5.04 |
No Conflicts; Consents |
40 |
| Section 5.05 |
Information Supplied |
41 |
| Section 5.06 |
Brokers |
41 |
| Section 5.07 |
Litigation |
41 |
| Section 5.08 |
Ownership of the Company Common Stock |
41 |
| Section 5.09 |
Guaranty |
41 |
| Section 5.10 |
Sufficient Funds |
41 |
| Section 5.11 |
Competing Businesses |
42 |
| Section 5.12 |
No Foreign Person |
42 |
| Article VI COVENANTS RELATING TO CONDUCT OF BUSINESS |
42 |
| Section 6.01 |
Conduct of Business of the Company |
42 |
| Section 6.02 |
No Solicitation |
44 |
| Article VII ADDITIONAL AGREEMENTS |
47 |
| Section 7.01 |
Access to Information; Confidentiality |
47 |
| Section 7.02 |
Reasonable Best Efforts; Notification; Regulatory Filings |
48 |
| Section 7.03 |
Employee Matters |
48 |
| Section 7.04 |
Indemnification |
50 |
| Section 7.05 |
Fees and Expenses |
50 |
| Section 7.06 |
Public Announcements |
51 |
| Section 7.07 |
Transfer Taxes |
51 |
| Section 7.08 |
Stockholder Litigation |
51 |
Table
of Contents
(continued)
Page
| Section 7.09 |
Rule 14d-10 Matters |
51 |
| Section 7.10 |
Rule 16b-3 Matters |
51 |
| Section 7.11 |
Merger Sub and Surviving Corporation Compliance |
51 |
| Section 7.12 |
Stock Exchange De-listing |
51 |
| Section 7.13 |
No Control of Other Party’s Business |
52 |
| Section 7.14 |
Anti-Takeover Provisions |
52 |
| Section 7.15 |
FIRPTA Certificate |
52 |
| Section 7.16 |
Efforts; Regulatory Filings |
52 |
| Section 7.17 |
Information Agent |
52 |
| Article VIII CONDITIONS PRECEDENT TO THE MERGER |
52 |
| Section 8.01 |
Conditions to Each Party’s Obligation |
52 |
| Section 8.02 |
Frustration of Closing Conditions |
52 |
| Article IX TERMINATION, AMENDMENT AND WAIVER |
53 |
| Section 9.01 |
Termination |
53 |
| Section 9.02 |
Effect of Termination |
54 |
| Section 9.03 |
Termination Fees |
54 |
| Section 9.04 |
Amendment; Extension; Waiver |
56 |
| Section 9.05 |
Procedure for Termination, Amendment, Extension or Waiver |
56 |
| Article X GENERAL PROVISIONS |
56 |
| Section 10.01 |
Nonsurvival of Representations and Warranties |
56 |
| Section 10.02 |
Notices |
56 |
| Section 10.03 |
Severability |
57 |
| Section 10.04 |
Counterparts |
57 |
| Section 10.05 |
Entire Agreement; Third-Party Beneficiaries; No Other Representations or Warranties |
57 |
| Section 10.06 |
Governing Law |
58 |
| Section 10.07 |
Assignment |
59 |
| Section 10.08 |
Specific Enforcement; Jurisdiction |
59 |
| Section 10.09 |
WAIVER OF JURY TRIAL |
60 |
| Section 10.10 |
Remedies |
60 |
| Section 10.11 |
Cooperation |
60 |
| Section 10.12 |
Parent Guarantee |
60 |
Table
of Contents
(continued)
Page
Exhibits
| EXHIBIT A |
Offer Conditions |
| |
|
| EXHIBIT B |
Certificate of Incorporation of the Surviving Corporation |
| |
|
| EXHIBIT C |
Bylaws of the Surviving Corporation |
| |
|
| EXHIBIT D |
Form of Contingent Value Rights Agreement |
| |
|
| EXHIBIT E |
Form of Tender and Support Agreement |
Schedules
Company Disclosure Letter
Parent Disclosure Letter+
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of
June 8, 2025 (this “Agreement” and, such date, the “Agreement Date”), by and
among Concentra Biosciences, LLC, a Delaware limited liability company (“Parent”), Concentra Merger Sub VI, Inc.,
a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Elevation Oncology, Inc.,
a Delaware corporation (the “Company”).
WHEREAS,
on the terms and subject to the conditions of this Agreement, Parent has agreed to cause Merger Sub to commence a cash tender offer (as
it may be amended from time to time in accordance with the terms of this Agreement, the “Offer”) to purchase
all the outstanding shares of common stock, par value $0.0001 per share, of the Company (the “Company Common Stock”)
for a price per share of the Company Common Stock of: (i) $0.36 in cash (the “Cash Amount”), payable
subject to any applicable tax withholding and without interest; plus (ii) one contingent value right (a “CVR”)
(such amount, or any different amount per share paid pursuant to the Offer to the extent permitted under this Agreement, being the “CVR
Amount”), issuable subject to any applicable tax withholding and without interest, which shall represent the right to receive
potential payments, in cash, subject to any applicable tax withholding and without interest, set forth in, and subject to and in accordance
with the terms and conditions of, the CVR Agreement (the Cash Amount plus the CVR Amount, collectively being the “Offer Price”).
WHEREAS, on the terms and subject to the conditions
set forth in this Agreement and in accordance with Section 251(h) of the Delaware General Corporation Law (the “DGCL”),
Merger Sub shall be merged with and into the Company (the “Merger”), with the Company continuing as the surviving
corporation, and pursuant to the Merger, each share of the Company Common Stock (other than the Excluded Shares) that is not validly tendered
and irrevocably accepted for purchase pursuant to the Offer, except as provided in this Agreement, shall be converted in the Merger into
the right to receive an amount equal to the Merger Consideration, net to the seller in cash and without interest;
WHEREAS, Parent, Merger Sub and the Company acknowledge
and agree that the Merger shall be governed by and effected under Section 251(h) of the DGCL and, subject to the terms of this
Agreement, effected as soon as practicable following the consummation (as defined in Section 251(h)(6) of the DGCL) of the Offer;
WHEREAS, concurrently with the execution of this
Agreement, and as a condition and inducement to the Company’s willingness to enter into this Agreement, Tang Capital Partners, LP,
a Delaware limited partnership (“Guarantor”) has duly executed and delivered to the Company a limited guaranty,
dated as of the date of this Agreement, in favor of the Company (the “Guaranty”);
WHEREAS, upon the terms and subject to the conditions
set forth in this Agreement, at or prior to the Offer Closing Time, the Company, the Representative thereunder and the Rights Agent will
enter into a CVR agreement, substantially in the form attached hereto as Exhibit D (the “CVR Agreement”);
WHEREAS, concurrently with the execution of this
Agreement, and as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, certain of the
Company’s stockholders are entering into tender and support agreements with Parent and Merger Sub, substantially in the form attached
hereto as Exhibit E (each, a “Support Agreement”) pursuant to which, among other things, such stockholders
have agreed to tender their shares of Company Common Stock to Merger Sub in the Offer;
WHEREAS, the Company Board at a duly called meeting,
has unanimously: (i) determined that the Offer, the Merger and the other transactions contemplated by this Agreement and the CVR
Agreement (collectively, the “Transactions”) are fair to, and in the best interests of, the Company and the
Company Stockholders; (ii) duly authorized and approved the execution, delivery and performance by the Company of this Agreement
and the consummation by the Company of the Transactions; (iii) declared this Agreement and the Transactions advisable; and (iv) recommended
that the Company Stockholders accept the Offer and tender their shares of the Company Common Stock in the Offer;
WHEREAS, the board of directors of each of Parent
and Merger Sub has duly authorized and approved the execution, delivery and performance by each of Parent and Merger Sub of this Agreement
and the consummation by Parent and Merger Sub of the Transactions, and the Board of Directors of Merger Sub has declared this Agreement
and the Transactions advisable and recommended that Parent, as sole stockholder of Merger Sub, adopt this Agreement; and
WHEREAS, Parent, Merger Sub and the Company desire
to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and to prescribe various
conditions to the Offer and the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.01 Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Acceptable Confidentiality Agreement”
means a customary confidentiality agreement that contains confidentiality provisions that are no less favorable in the aggregate to the
Company than those contained in the Confidentiality Agreement; provided that such confidentiality agreement may omit to contain
a “standstill” or similar obligation to the extent that Parent has been, or is, concurrently with the entry by the Company
into such confidentiality agreement, released from any “standstill” or other similar obligation in the Confidentiality Agreement.
“Acquisition
Inquiry” means: (a) an expression of an intent to make a Company Takeover Proposal; or (b) a request for
information or for a discussion for the apparent purpose of evaluating the making of a Company Takeover Proposal (other than an expression
of intent or request for information or for a discussion made or submitted by Parent or any of its subsidiaries).
“Affiliate” means, with
respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or
is under common control with such first Person. The term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities
or other interests, by contract or otherwise.
“Authorizations” means
any approvals, authorizations, certificates, registrations, licenses, exemptions, permits and consents of Governmental Entities.
“Black-Scholes Warrants”
means those certain warrants to purchase Company Common Stock sold pursuant to the Common Stock Purchase Warrant Agreements, dated as
of June 13, 2023, among the Company and the purchasers identified therein.
“Book-Entry Shares”
means shares of the Company Common Stock not represented by certificates and held in the Direct Registration System.
“Business Day” means
any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the case of determining a date
when any payment is due, any day on which banks are not required or authorized by Law to close in New York, New York or Boston, Massachusetts.
“Closing
Net Cash” means, without duplication, (i) the Company’s cash, cash equivalents and marketable securities as of
the Cash Determination Time, determined in accordance with GAAP, applied on a basis consistent with the Company’s application thereof
in the Company’s consolidated financial statements, minus (ii) Indebtedness of the Company and its subsidiaries
as of the Cash Determination Time, minus (iii) the Transaction Expenses, minus (iv) the Estimated
Costs Post-Merger Closing, minus (v) $400,000 for the CVR Expense Cap under the CVR Agreement, minus
(vi) $4,851,000 for the contractual payout of outstanding Black-Scholes Warrants, (the “Black-Scholes Warrant
Payout”) and for the avoidance of doubt, the Black-Scholes Warrant Payout shall not be considered in the determination of
the amount of either Transaction Expenses or Indebtedness.
“Change in Control and Severance Agreement”
means each Change in Control and Severance Agreement entered into by and between the Company and each employee party thereto.
“Change in Control Plan”
means the Company’s Change in Control Plan, as adopted on August 8, 2021.
“CMC Activities” means
any activity related to the manufacturing, management or disposition of the inventory related to raw materials, starting materials, intermediate
materials, drug substance or drug product related to the Company Products, including maintenance and/or closeout of stability studies
and storage.
“Code” means the U.S.
Internal Revenue Code of 1986, as amended.
“Company Benefit Plan”
means (i) an employee benefit plan within the meaning of Section 3(3) of ERISA whether or not subject to ERISA; (ii) stock
option plans, stock purchase plans, bonus or incentive plans, severance pay plans, programs or arrangements, deferred compensation arrangements
or agreements, employment agreements, compensation plans, programs, agreements or arrangements, change in control plans, programs or arrangements,
supplemental income arrangements, vacation plans, and all other employee benefit plans, agreements and arrangements not described in (i) above;
and (iii) plans or arrangements providing compensation to employee and non-employee directors, in each case in which the Company
or any subsidiary sponsors, contributes to, or provides benefits under or through such plan, or has any obligation to contribute to or
provide benefits under or through such plan, or if such plan provides benefits to or otherwise covers any current or former employee,
officer or director of the Company or any subsidiary (or their spouses, dependents or beneficiaries).
“Company Material Adverse Effect”
means any change, event, condition, development, circumstance, state of facts, effect or occurrence that has a material adverse effect
on: (i) the business, financial condition, assets, properties or results of operations of the Company; or (ii) the ability of
the Company to consummate the Transactions; provided that, for purposes of clause (i), none of the following shall be taken into
account in determining whether there has been a Company Material Adverse Effect: any change, event, condition, development, circumstance,
state of facts, effect or occurrence to the extent resulting from or arising out of (A) general conditions (or changes therein) in
the industries in which the Company operates, (B) general economic or regulatory, legislative or political conditions (or changes
therein), including any actual or potential stoppage, shutdown, default or similar event or occurrence affecting a national or federal
government, or securities, credit, banking, financial or other capital markets conditions (including changes generally in prevailing interest
rates, currency exchange rates, credit markets or equity price levels or trading volumes), in each case, in the U.S., the European Union
or elsewhere in the world, (C) any change in applicable Law or GAAP after the date hereof, (D) geopolitical conditions, the
outbreak or escalation of hostilities, any acts or threats of war (whether or not declared), sabotage or terrorism, or any escalation
or worsening of any of the foregoing, (E) any epidemic, pandemic, disease outbreak or other public health-related event (or escalation
or worsening of any such events or occurrences, including, in each case, the response of Governmental Officials (or any actions or omissions
which are taken in compliance with applicable Law or any directive, guideline or recommendation of any Governmental Officials, in each
case in connection with any of the foregoing)), hurricane, tornado, flood, fire, volcano, earthquake or other natural or man-made disaster
or any other national or international calamity, crisis or disaster, (F) the failure, in and of itself, of the Company to meet any
internal or external forward-looking projections, forecasts, estimates or predictions in respect of any financial or operating metrics
before, on or after the Agreement Date, or changes in the market price or trading volume of the Company Common Stock or the credit rating
of the Company (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into
account in determining whether there has been a Company Material Adverse Effect if such facts are not otherwise excluded under this definition),
(G) the announcement, pendency or performance of any of the Transactions, including the identity of, or any facts or circumstances
relating to, Parent, Merger Sub or their respective Affiliates, any stockholder Proceeding (direct or derivative) in respect of this Agreement
or any of the Transactions and any loss of or change in relationship, contractual or otherwise, with any Governmental Entity, supplier,
vendor, service provider, collaboration partner, licensor, licensee, landlord or any other party having business dealings with the Company
(including the exercise, or prospective exercise, by any party of any rights that arise upon a change of control), or departure of any
employees or officers, of the Company (provided that this clause (G) shall not apply to the representations and warranties
set forth in Section 4.05 or the condition set forth in clause (ii) of Exhibit A to the extent relating to
such representations and warranties), (H) the Company’s compliance with the covenants contained in this Agreement, or (I) any
action taken by the Company at Parent’s express written request or with Parent’s express written consent, except in the case
of clause (A), (B), (C), (D) or (E), to the extent that the Company is disproportionately affected thereby as compared with other
participants in the industries in which the Company operates (in which case the incremental disproportionate impact or impacts may be
taken into account in determining whether there has been a Company Material Adverse Effect).
“Company Warrants” means:
(a) the Black-Scholes Warrants; and (b) the K2 Warrants.
“Company Products” means:
(i) the Company’s product candidate known as EO-3021 (also known as SYSA1801 or CPO102), a Claudin 18.2 antibody-drug conjugate
(ADC); and (ii) the Company’s product candidate known as EO-1022, a HER3 ADC.
“Company
Restricted Stock Units” means restricted stock units granted pursuant to a
Company Stock Plan or otherwise, with each such unit representing a contingent right to receive one share of Company Common Stock upon
vesting.
“Company Stock Option”
means any option to purchase the Company Common Stock granted under a Company Stock Plan or otherwise.
“Company Stock Plans”
means the Company’s 2019 Equity Incentive Plan, the Company’s 2021 Equity Incentive Plan and all non-plan inducement awards.
“Company Stockholders”
means the holders of shares of outstanding Company Common Stock.
“Company Takeover Proposal”
means any inquiry, proposal or offer from any Person or group (other than Parent and its subsidiaries) relating to: (i) any direct
or indirect acquisition or purchase, in a single transaction or a series of related transactions, of (A) 20% or more (based on the
fair market value thereof, as determined by the Company Board of the assets of the Company or (B) 20% or more of the aggregate voting
power of the capital stock of the Company; (ii) any tender offer, exchange offer, merger, consolidation, business combination, recapitalization,
liquidation, dissolution, binding share exchange or similar transaction involving the Company in each case that, if consummated, would
result in any Person or group (or the stockholders of any Person) beneficially owning, directly or indirectly, 20% or more of the aggregate
voting power of the capital stock of the Company or of the surviving entity or the resulting direct or indirect parent of the Company
or such surviving entity, other than, in each case, the Transactions; or (iii) any combination of the foregoing.
“Consent” means any
consent, approval, license, permit, order or authorization.
“Contract” means, with
respect to any Person, any legally binding contract, lease, license, indenture, note, bond, agreement, concession, franchise or other
instrument to which such Person or its subsidiaries is a party or by which any of their respective properties or assets is bound.
“Data Privacy and Security Requirements”
means, Privacy Laws, and to the extent regarding privacy, data protection and/or the security of Personal Information processed by the
Company: (i) the Company’s published, public-facing policies (including privacy policies); (ii) generally accepted standards
that are applicable to the processing of Personal Information by the Company and binding on the Company; and (iii) the Company’s
obligations under any Contracts to which it is a party.
“Direct Registration System”
means the service that provides for electronic direct registration of securities in a record holder’s name on the Company’s
transfer books and allows shares to be transferred between record holders electronically.
“Environmental Law”
means any Law, Judgment, consent, approval, order or Authorization, permit or other legal requirement of any Governmental Entity, including
controlling common law, relating to: (i) the protection, investigation, remediation or restoration of the environment, human health
and safety, or natural resources; or (ii) the handling, use, storage, treatment, transport, disposal, release or threatened release
of any Hazardous Substance.
“ERISA” means the Employee
Retirement Income Security Act of 1974.
“ERISA Affiliate” means,
with respect to the Company, any trade or business, whether or not incorporated, that together with the Company would be deemed a “single
employer” within the meaning of Section 414 of the Code or Section 4001(b)(1) of ERISA or that is a member of the
same “controlled group” as the Company pursuant to Section 4001(a)(14) of ERISA.
“Estimated Costs Post-Merger Closing”
means all costs that the Surviving Corporation would incur post-Merger Closing, including costs associated with: (i) CMC Activities;
(ii) clinical activities; (iii) remaining lease-related obligations (including rent, common area maintenance, property taxes
and insurance); and (iv) the amount set forth in Schedule I for any legal Proceedings and settlements.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
“Excluded Shares” means
the Company Common Stock to be cancelled pursuant to Section 3.08(b)(i) and Section 3.08(b)(ii).
“FDA” means the U.S.
Food and Drug Administration.
“FDCA” means the Federal
Food, Drug, and Cosmetic Act, as amended, and all regulations promulgated thereunder.
“GAAP” means generally
accepted accounting principles in the U.S.
“Governmental Entity”
means any supranational, national, federal, state, municipal, provincial, local or other government, domestic or foreign, or any court,
administrative agency or commission or other governmental authority or instrumentality exercising legislative, judicial, regulatory or
administrative functions of or pertaining to supranational, national, federal, state, municipal, provincial or local government, including
any department, commission, board, agency, bureau, subdivision, instrumentality or other regulatory, administrative, judicial or arbitral
authority, whether domestic or foreign, and in each case, of competent jurisdiction.
“Governmental Official”
means any official or employee of any government, or any department, agency, or instrumentality thereof, any political party or official
thereof, any candidate for political office, any official or employee of any public international organization, or any person acting in
an official capacity for or on behalf of any such government, department, agency, instrumentality, party, or public international organization.
“Hazardous Substance”
means any pollutant, contaminant, hazardous substance, hazardous material, hazardous waste or petroleum products, and any other chemical
waste, substance or material listed in or regulated or identified in or giving rise to liability or standards of conduct pursuant to any
Environmental Law.
“Health Laws” means
any Law applicable to the Company regulating the research, development, manufacturing or distribution of medicines or pharmaceutical products,
provided that Health Laws will not include Privacy Laws.
“HIPAA” means the applicable
provisions of the Health Information Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic
and Clinical Health Act of 2009.
“Indebtedness” means,
with respect to the Company or its subsidiaries, and without duplication (including without duplication of any amounts included in Transaction
Expenses): (i) all obligations for borrowed money, or with respect to unearned advances of any kind to the Company or its subsidiaries;
(ii) all obligations evidenced by bonds, debentures, notes or similar instruments; (iii) all obligations under any short-term
or long-term Contracts to which the Company or any of its subsidiaries is a party, including any installment sale contracts, and all liabilities
accrued or incurred by or on behalf of the Company or any of its subsidiaries; (iv) all guarantees and arrangements having the economic
effect of a guarantee of the Company or its subsidiaries of any Indebtedness of any other Person; (v) any deferred purchase price
obligations for assets, property, securities, business or services, including seller notes, holdback or similar payments (whether contingent
or otherwise) calculated as the maximum amount payable under or pursuant to such obligation; (vi) all obligations under any interest
rate swap, forward contract, currency or other hedging arrangement, derivative or similar transaction; (vii) any accrued but unpaid
federal, state or franchise Taxes; (viii) any unfunded benefit liability with respect to any retirement or deferred compensation
plan, program, agreement or arrangement; and (ix) any accrued and unused vacation, paid time off or similar leave, and any accrued
and unpaid severance obligations, or bonuses or commissions and any other bonuses or commissions that relate to the period prior to the
Offer Closing Time, irrespective of whether accrued, and in each case, the employer portion of any Taxes related thereto.
“Intellectual Property”
means all rights, title and interest in intellectual property, whether protected, created or arising under the Laws of the U.S. or any
other jurisdiction, including: (i) all patents, patent applications, provisional patent applications and similar instruments (including
any and all substitutions, divisions, continuations, continuations-in-part, reissues, renewals and extensions, and any foreign equivalents
of the foregoing (including certificates of invention and any applications therefor)) (collectively, “Patents”);
(ii) all domestic and foreign copyrights, copyright registrations, copyright applications, original works of authorship fixed in
any tangible medium of expression to the extent protectable by applicable copyright Law, including literary works, all forms and types
of computer software, pictorial and graphic works that are so protectable (collectively, “Copyrights”); (iii) all
trademarks, service marks, trade names, business marks, service names, brand names, trade dress rights, logos, corporate names, trade
styles and other source or business identifiers and other general intangibles of a like nature to the extent protectable by applicable
trademark law, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and
extensions thereof (collectively, “Trademarks”); (iv) all Internet domain names; (v) all trade secrets,
technology, discoveries and improvements, know-how, proprietary rights, formulae, confidential and proprietary information, technical
information, techniques, inventions (including conceptions and/or reductions to practice), designs, drawings, procedures, processes, models,
formulations, manuals and systems, whether or not patentable or copyrightable, including all biological, chemical, biochemical, toxicological,
pharmacological and metabolic material and information and data relating thereto and formulation, clinical, analytical and stability information
and data, in each case, which are not available in the public domain and have actual or potential commercial value that is derived, in
whole or in part, from such non-availability (collectively, “Trade Secrets”); and (vi) all other intellectual
property rights throughout the world.
“Intervening Event”
means an event, change, effect, development, condition or occurrence material to the Company that was not known or reasonably foreseeable
by the Company Board as of the Agreement Date (or if known or reasonably foreseeable, the consequences of which were not known or reasonably
foreseeable); provided that in no event shall any of the following constitute or contribute to an Intervening Event: (i) changes
in the financial or securities markets or general economic or political conditions in the U.S.; (ii) changes (including changes in
applicable Law) or conditions generally affecting the industry in which the Company operates; (iii) the announcement or pendency
of this Agreement or the Transactions; (iv) changes in the market price or trading volume of the Company Common Stock (it being understood
that the underlying facts giving rise or contributing to such change may be taken into account in determining whether there has been an
Intervening Event); (v) the Company’s meeting or exceeding any internal or published budgets, projections, forecasts or predictions
of financial performance for any period (it being understood that the underlying facts giving rise or contributing to such change may
be taken into account in determining whether there has been an Intervening Event); (vi) any facts relating to Parent or its Affiliates;
or (vii) the receipt, existence or terms of any Company Takeover Proposal or any inquiry, offer, request or proposal that would reasonably
be expected to lead to a Company Takeover Proposal, or the consequences of any of the foregoing.
“In-the-Money Option”
means each Company Stock Option that has a per share exercise price that is less than the Cash Amount.
“IRS” means the U.S.
Internal Revenue Service.
“Judgment” means a judgment,
order, injunction or decree of any Governmental Entity.
“K2 Warrants” means
those certain warrants to purchase Company Common Stock issued on July 27, 2022 and March 1, 2024 to K2 HealthVentures Equity
Trust LLC.
“knowledge” means: (a) in
the case of the Company, the actual knowledge, as of the Agreement Date, of the individuals listed in Section 1.01(a) of
the Company Disclosure Letter; and (b) in the case of Parent and Merger Sub, the actual knowledge, as of the Agreement Date, of the
individuals listed in Section 1.01(a) of the Parent Disclosure Letter, in each case, following reasonable inquiry of
such individual’s direct reports who are current employees as of the Agreement Date.
“Law” means any statute,
law, ordinance, regulation, rule, act, code, order, constitution, treaty, common law, judgment, decree, award, writ, ruling, injunction,
other requirement or rule of law of any Governmental Entity.
“Liens” means pledges,
licenses, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever.
“made available” means
(unless otherwise specified), with respect to a particular document, item or other piece of information, inclusion and availability in
the virtual data room hosted on ShareVault by the Company or, solely with respect to the EO-3021 information, Microsoft Teams, in connection
with the Transactions on or prior to 5:00 p.m. Pacific Time, on the day prior to the Agreement Date and continuously through the
Agreement Date.
“Nasdaq” means The Nasdaq
Capital Market.
“Out-of-the-Money Option”
means each Company Stock Option that has a per share exercise price that is equal to or greater than the Cash Amount.
“Parent Material Adverse Effect”
means any change, effect, event or occurrence that prevents Parent or Merger Sub from consummating the Offer, the Merger and the other
Transactions on or before the Outside Date.
“Permitted Lien” means:
(i) a defect or irregularity in title; (ii) an easement or right-of-way; (iii) a Lien for Taxes not yet due and payable
or being contested in good faith through appropriate Proceedings and for which adequate reserves have been maintained in accordance with
GAAP; (iv) non-exclusive licenses to Intellectual Property granted in the ordinary course of business; and/or (v) other similar
matters that would not reasonably be expected to, individually or in the aggregate, materially impair the continued use and operation
of the assets to which they relate in the business of the Company.
“Person” means any individual,
firm, corporation, partnership, company, limited liability company, estate, trust, joint venture, association, organization, Governmental
Entity or other entity of any kind or nature.
“Personal Information”
means any information concerning an identified or identifiable individual, including any such information that constitutes “protected
health information” under HIPAA.
“Privacy Laws” means
all Laws governing privacy, security or data protection that are applicable to the processing of Personal Information by or for the Company,
including as applicable, HIPAA.
“Proceeding” means any
private, governmental, or administrative claim, counterclaim, proceeding, suit, arbitration, hearing, litigation, action, charge, complaint
or audit, in each case whether civil, criminal, administrative, judicial or investigative, or any appeal therefrom.
“Regulatory Authority”
means any national or supranational Governmental Entity, including the FDA, with responsibility for granting any licenses, clearances,
authorizations, certifications, permits, registrations or approvals with respect to the Company Products.
“Regulatory Authorizations”
means any approvals, clearances, authorizations, registrations, certifications, licenses and permits granted by any Regulatory Authority.
“Representative” of
any Person means such Person’s officers, directors, employees, investment bankers, attorneys, other advisors or other representatives
acting in the scope of his, her or its service to such Person.
“SEC” means the U.S.
Securities and Exchange Commission.
“subsidiary” of any
Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient
to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is owned directly or indirectly by such first Person.
“Superior Company Proposal”
means any written bona fide Company Takeover Proposal received after the Agreement Date and that if consummated would result in
a Person or group (or the stockholders of any Person) owning, directly or indirectly: (i) 50% or more of the aggregate voting power
of the capital stock of the Company or of the surviving entity or the resulting direct or indirect parent of the Company or such surviving
entity; or (ii) 50% or more (based on the fair market value thereof, as determined in good faith by the Company Board of the consolidated
assets of the Company on terms and conditions which the Company Board determines, in good faith, after consultation with outside counsel
and its independent financial advisor, (A) would reasonably be expected to be more favorable from a financial point of view to the
Company Stockholders than the Transactions, taking into account all the terms and conditions (including all financial, regulatory, financing,
conditionality, legal and other terms and conditions) of such proposal and this Agreement (including any changes to the terms of this
Agreement proposed by Parent pursuant to Section 6.02(b)); and (B) is reasonably likely to be completed.
“Tax Authority” means
any Governmental Entity responsible for the imposition, collection or administration of any Tax.
“Tax Return” means all
Tax returns, declarations, statements, reports, claims for refund, disclosures, elections, estimates, schedules, forms and information
returns relating to Taxes, and any attachment thereto or amendment thereof, filed or required to be filed with any Tax Authority.
“Taxes” means any and
all federal, state, provincial, local, foreign and other taxes, customs, tariffs, imposts, levies, duties, imposts, fees or other like
assessments or charges imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such
amounts, including, without limitation: (i) taxes imposed on, or measured by, income, franchise, profits or gross receipts; and (ii) ad
valorem, value added, capital gains, sales, goods and services, use, real or personal property, capital stock, license, branch, payroll,
estimated withholding, employment, social security (or similar), unemployment, compensation, utility, severance, production, excise, stamp,
occupation, premium, windfall profits, escheat, transfer and gains taxes, and customs duties.
“Transaction Expenses”
means, without duplication, all fees and expenses incurred or payable by the Company and the Company’s subsidiaries and up to an
aggregate of $300,000 in reasonable and documented fees and expenses incurred or payable by Parent or Merger Sub (including any such fees
or expenses that the respective party is legally obligated to pay or reimburse) at or prior to the Effective Time in connection with the
transactions contemplated by this Agreement and the CVR Agreement, including: (i) any fees and expenses of legal counsel, accountants,
financial advisors, investment bankers, brokers, consultants, paying agents, depository agents and other advisors; (ii) fees paid
to the SEC in connection with filing the Offer Documents and the Schedule 14D-9, and any amendments and supplements thereto, with the
SEC; (iii) any fees and expenses in connection with the printing, mailing and distribution of the Offer Documents the Schedule 14D-9
and any amendments and supplements thereto; (iv) any fees, expenses and premiums incurred in connection with the D&O Tail Policies;
and (v)any “single-trigger” (or “double trigger,” to the extent payable pursuant to Company Benefit Plans as in
effect on the Agreement Date), bonus, severance, change-in-control payments or similar payment obligations that become due or payable
to any director, officer, employee or consultant of the Company upon, and solely as a result of, the consummation of the transactions
contemplated by this Agreement and the CVR Agreement, including the employer portion of any payroll Taxes associated therewith (provided,
that Transaction Expenses shall not include any amounts (A) payable as a result of any arrangements implemented or actions taken
(other than pursuant to any Company Benefit Plan as in effect on the Agreement Date) by the Parent or the Surviving Corporation after
the Effective Time, (B) discharged by the Company prior to the Merger Closing), (C) payable with respect to any In-the-Money
Option or Company Restricted Stock Unit, or (D) payable as excise tax under Section 4501 of the Code.
“Treasury Regulations”
means the Treasury regulations promulgated under the Code.
“Willful Breach” means
a material breach, or a material failure to perform, any covenant, representation, warranty, or agreement set forth in this Agreement,
in each case, that is the consequence of an intentional or willful act or omission by a party hereto with the knowledge that the taking
of such act or failure to take such act would result in, constitute or cause a material breach or material failure to perform this Agreement.
Each of the following terms is defined in the
Section set forth opposite such term:
| Accounting Firm |
Section 2.01(d)(vi) |
| Adverse Recommendation Change |
Section 6.02(b) |
| Agreement |
Preamble |
| Agreement Date |
Preamble |
| Appraisal Shares |
Section 3.08(d) |
| Bankruptcy, Equity and Indemnity Exception |
Section 4.04(a) |
| Cash Amount |
Recitals |
| Cash Determination Time |
Section 2.01(d)(ii) |
| Certificate of Merger |
Section 3.03 |
| Certificates |
Section 3.09(b) |
| Closing Net Cash Calculation |
Section 2.01(d)(ii) |
| Closing Net Cash Schedule |
Section 2.01(d)(ii) |
| Company |
Preamble |
| Company Balance Sheet |
Section 4.06(d) |
| Company Board |
Recitals |
| Company Board Recommendation |
Section 4.04(b) |
| Company Bylaws |
Section 4.01 |
| Company Charter |
Section 4.01 |
| Company Common Stock |
Recitals |
| Company Disclosure Letter |
Article IV |
| Company ESPP |
Section 3.10(c) |
| Company Notice |
Section 6.02(b) |
| Company Preferred Stock |
Recitals |
| Company SEC Documents |
Section 4.06(a) |
| Company Stock Option Cash Consideration |
Section 3.10(a) |
| Company Restricted Stock Unit Cash Consideration |
Section 3.10(b) |
| Company Takeover Proposal |
Section 9.03(a) |
| Company Termination Fee |
Section 9.03(a) |
| Confidentiality Agreement |
Section 7.01 |
| CVR |
Recitals |
| CVR Agreement |
Recitals |
| CVR Amount |
Recitals |
| D&O Tail Policies |
Section 7.03(c) |
| DGCL |
Recitals |
| Dispute Notice |
Section 2.01(d)(iii) |
| Effective Time |
Section 3.03 |
| Enforcement Costs |
Section 9.02 |
| Existing D&O Policies |
Section 7.03(c) |
| Expense Reimbursement Payment |
Section 9.03(b) |
| Expiration Date |
Section 2.01(a) |
| Filed Company SEC Documents |
Article IV |
| Guarantor |
Recitals |
| Guaranty |
Recitals |
| Health Care Submissions |
Section 4.14(a) |
| Indemnified Party |
Section 7.03(a) |
| Initial Expiration Date |
Section 2.01(a) |
| Intervening Event Adverse Recommendation Change |
Section 6.02(b) |
| Legal Restraints |
Section 8.01(a) |
| Material Contract |
Section 4.10(a) |
| Maximum Amount |
Section 7.03(c) |
| Measurement Date |
Section 4.02(a) |
| Merger |
Recitals |
| Merger Closing |
Section 3.02 |
| Merger Closing Date |
Section 3.02 |
| Merger Consideration |
Section 3.08(c) |
| Merger Sub |
Preamble |
| Minimum Tender Condition |
Exhibit A |
| Offer |
Recitals |
| Offer Closing Time |
Section 2.01(a) |
| Offer Conditions |
Section 2.01(a) |
| Offer Documents |
Section 2.01(b) |
| Offer Price |
Recitals |
| Outside Date |
Section 9.01(b)(i) |
| Parent |
Preamble |
| Parent Disclosure Letter |
Article V |
| Paying Agent |
Section 3.09(a) |
| Payment Fund |
Section 3.09(a) |
| Pre-Closing Period |
Section 6.01 |
| Qualifying Company Takeover Proposal |
Section 6.02(a) |
| Response Time |
Section 2.01(d)(iii) |
| Restricted Stock Unit Cash Consideration |
Section 3.10(b) |
| Rights Agent |
Section 3.11 |
| Schedule 14D-9 |
Section 2.02(a) |
| Section 262 |
Section 3.08(d) |
| Securities Act |
Section 4.06(b) |
| Stockholder List Date |
Section 2.02(b) |
| Support Agreement |
Recitals |
| Surviving Corporation |
Section 3.01 |
| Takeover Law |
Section 4.21 |
| Termination Condition |
Exhibit A |
| Transactions |
Recitals |
| Transfer Taxes |
Section 7.06 |
| Voting Company Debt |
Section 4.02(c) |
Section 1.02 Interpretation
and Rules of Construction. The headings contained in this Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. References to “this Agreement”
shall include the Company Disclosure Letter and the Parent Disclosure Letter. All Exhibits annexed to this Agreement or referred to in
this Agreement are hereby incorporated in and made a part of this Agreement as if set forth in full in this Agreement. Any terms used
in the Company Disclosure Letter, the Parent Disclosure Letter, any Exhibit or any certificate or other document made or delivered
pursuant to this Agreement but not otherwise defined therein shall have the meaning as defined in this Agreement. The definitions of
terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The word “will” shall be construed to have
the same meaning as the word “shall.” The words “include,” “includes” and “including”
shall be deemed, in each case, to be followed by the phrase “without limitation.” 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.”
All references to “dollars” or “$” shall refer to the lawful currency of the U.S. Unless the context requires
otherwise: (i) any definition of or reference to any Contract, instrument or other document or any Law in this Agreement shall be
construed as referring to such Contract, instrument or other document or Law as from time to time amended, supplemented or otherwise
modified, including comparable successor law and references to all attachments thereto and instruments incorporated therein, but only
to the extent, in the case of any amendment, supplement or other modification to any Contract, instrument or other document listed in
the Company Disclosure Letter or the Parent Disclosure Letter, that such amendment, supplement or other modification has been made available
to the other party and is also listed on the appropriate section of the Company Disclosure Letter or the Parent Disclosure Letter, as
applicable; (ii) any reference in this Agreement to any Person shall be construed to include such Person’s successors and
permitted assigns; (iii) the words “herein,” “hereof” and “hereunder,” and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (iv) all references
in this Agreement to Articles, Sections and Exhibits shall be construed to refer to Articles and Sections of, and Exhibits to, this Agreement,
unless otherwise indicated; (v) references to clauses without a cross-reference to a Section or subsection are references to
clauses within the same Section or, if more specific, subsection; and (vi) references from or through any date shall mean,
unless otherwise specified, from and including or through and including, respectively. This Agreement shall be construed without regard
to any presumption or rule requiring construction or interpretation against the party hereto drafting or causing any instrument
to be drafted. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption
or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.
Unless indicated otherwise, (A) any action required to be taken by or on a day or business day may be taken until 11:59 p.m. Eastern
Time on such day or business day, (B) all references to “days” shall be to calendar days unless otherwise indicated
as a “Business Day” and (C) all days, business days, times and time periods contemplated by this Agreement will be determined
by reference to Eastern Time. Unless indicated otherwise, all mathematical calculations contemplated by this Agreement shall be rounded
to the fourth decimal place, except in respect of payments, which shall be rounded down to the nearest whole U.S. cent.
Article II
THE OFFER
Section 2.01 The
Offer.
(a) Commencement
and Term of the Offer. Provided that this Agreement shall not have been terminated in accordance with Section 9.01, subject
to the terms and conditions of this Agreement, as promptly as practicable (but in no event later than ten (10) Business Days after
the Agreement Date), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and
regulations of the SEC) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably
accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction
or waiver of the conditions set forth on Exhibit A (the “Offer Conditions”). The initial expiration
date of the Offer shall be at the time that is one minute following 11:59 p.m. Eastern Time, on the date that is twenty (20) Business
Days (determined using Rule 14d-1(g)(3) of the Exchange Act) after the date the Offer is first commenced (within the meaning
of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”, and such date, or such
subsequent date to which the Initial Expiration Date of the Offer is extended in accordance with the terms of this Agreement, the “Expiration
Date”). Merger Sub expressly reserves the right to waive, in its sole discretion, in whole or in part, any Offer Condition
or modify the terms of the Offer in any manner not inconsistent with this Agreement, except that the Minimum Tender Condition shall not
be waived, and, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce
the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive, amend or modify
the Termination Condition or the Minimum Tender Condition, (iv) add to the Offer Conditions or impose any other conditions on the
Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of the Company Common Stock, or that would,
individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially
delay or materially impair the ability of Parent or Merger Sub to consummate the Offer of the Merger, (v) except as otherwise provided
in this Section 2.01, terminate the Offer, or extend or otherwise amend or modify the Expiration Date, (vi) change the
form or terms of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer in
any manner adverse to the holders of the Company Common Stock or (viii) provide any “subsequent offering period” in accordance
with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing or anything to the contrary in this Agreement, unless this Agreement
has been validly terminated in accordance with Section 9.01, (A) Merger Sub may elect to (and if so requested by the
Company, Merger Sub shall, and Parent shall cause Merger Sub to), extend the Offer for one or more consecutive increments of such duration
as requested by the Company (or if not so requested by the Company, as determined by Parent), but not more than 10 Business Days each
(or for such longer period as may be agreed to by Parent and the Company), if (I) at the scheduled Expiration Date, any of the Offer
Conditions (including the Minimum Tender Condition) shall not have been satisfied or waived (if permitted hereunder), until such time
as such conditions shall have been satisfied or waived (if permitted hereunder), or (II) at the scheduled Expiration Date, Section 2.01(d)(v) applies
as to the determination of the Closing Net Cash and the resolution of the matters described in Section 2.01(d)(vi) has
not been finalized, and (B) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required
by any rule, regulation or interpretation or position of the SEC or the staff thereof or Nasdaq, in each case that are applicable to the
Offer; provided that Merger Sub shall not, and shall not be required to, extend the Offer beyond the Outside Date and, in the case
of the Minimum Tender Condition being the only condition not satisfied under clause (I) of the foregoing (other than conditions that
by their nature are only satisfied as of the Offer Closing Time), Parent shall not be required to cause Merger Sub to extend the Offer
to a date later than the Outside Date.
On the terms and subject only to the conditions
of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to: (i) irrevocably accept for payment all shares
of the Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase
pursuant to the Offer as promptly as practicable after the Expiration Date and, in any event, prior to 9:30 a.m. Eastern Time on
the Business Day following the Expiration Date; and (ii) deposit, or cause to be deposited, with the Paying Agent the aggregate Offer
Price as soon as practicable after the Expiration Date. The time at which Merger Sub first irrevocably accepts for purchase the shares
of the Company Common Stock tendered in the Offer is referred to as the “Offer Closing Time.” The Offer may
not be terminated or withdrawn prior to the Expiration Date (as such Expiration Date may be extended and re-extended in accordance with
this Section 2.01(a)), unless this Agreement is validly terminated in accordance with Section 9.01. If this Agreement
is validly terminated in accordance with Section 9.01, Merger Sub shall promptly and irrevocably terminate the Offer and return,
and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of the Company Common Stock to the registered
holders thereof. Nothing contained in this Section 2.01(a) shall affect any termination rights set forth in Section 9.01.
Parent shall use commercially reasonable efforts,
upon the reasonable request of the Company, to advise the Company on a daily basis on each of the last seven (7) Business Days prior
to the then-scheduled Expiration Date as to the number of shares of the Company Common Stock that have been validly tendered and not properly
withdrawn in accordance with the terms of the Offer.
(b) Schedule
TO; Offer Documents. As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall:
(i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include an offer to purchase
and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A
(such Schedule TO, as amended from time to time, and the documents included therein pursuant to which the Offer will be made, together
with any supplements or amendments thereto, the “Offer Documents”); and (ii) disseminate the Offer Documents
to the holders of the Company Common Stock as and to the extent required by applicable Law. The Company shall furnish to Parent and Merger
Sub all information concerning the Company required by applicable Law to be set forth in the Offer Documents. Each of Parent, Merger Sub
and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information
shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and
Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents, as so amended or
supplemented, to be filed with the SEC and disseminated to the holders of the Company Common Stock, in each case, as and to the extent
required by applicable Law. Parent and Merger Sub shall promptly provide the Company and its counsel with copies of any written comments,
and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or
its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation
Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof
to the holders of the Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents,
Parent and Merger Sub shall (A) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer
Documents or response (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)
and (B) give reasonable and good faith consideration to any comments made by the Company or its counsel. Parent and Merger Sub shall
respond promptly to any comments of the SEC or its staff with respect to the Offer Documents. In addition, Parent and Merger Sub shall
cause the Offer Documents (i) to comply in all material respects with the Exchange Act and other applicable laws and (ii) to
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant
is made by Parent or Merger Sub with respect to information supplied by or on behalf of the Company for inclusion or incorporation by
reference in the Offer Documents.
(c) Funding
the Offer. Subject to Section 5.10, Parent shall be entitled to use or cause to be used some or all of the Closing Net
Cash in order to pay the Cash Amount with respect to each and any shares of the Company Common Stock that Merger Sub becomes obligated
to purchase pursuant to the Offer. Parent will notify the Company five (5) Business Days before the Merger Closing how much of the
Closing Net Cash (if any) will be used to pay the Cash Amount.
(d) Adjustments;
Determination of Closing Net Cash.
(i) If,
between the Agreement Date and the Offer Closing Time, the outstanding shares of the Company Common Stock are changed into a different
number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation
of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately adjusted and such
adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated
by this Agreement prior to such action.
(ii) Except
as otherwise contemplated in this Section 2.01(d), on the eighth (8th) Business Day before each then-scheduled
expiration of the Offer (including as extended pursuant to Section 2.01(a)), the Company shall deliver to Parent a schedule
(the “Closing Net Cash Schedule”) setting forth, in reasonable detail and in a manner consistent with Schedule
I hereto (attached for illustrative purposes only), the Company’s good faith, estimated calculation of Closing Net Cash (the
“Closing Net Cash Calculation”) as of immediately prior to the Offer Closing Time (the “Cash Determination
Time”) based on such scheduled expiration of the Offer. The Company shall make available to Parent, as reasonably requested
by Parent, the work papers (subject to execution of customary work paper access letters if requested by the auditor of the Company) and
back-up materials used or any other relevant information useful in preparing the Closing Net Cash Schedule, including any close-out memos
or other forms of written affirmation received from vendors that either no more money is due or an amount of money is due that is reflected
on the Closing Net Cash Schedule. If reasonably requested by Parent, access to the Company’s accountants and counsel at reasonable
times and upon reasonable notice will be provided by Company in order to permit Parent to review the Closing Net Cash Calculation.
(iii) Parent
shall have the right to dispute any part of the Closing Net Cash Calculation by delivering a written notice (for which email will suffice)
(a “Dispute Notice”) to that effect to the Company on or prior to 11:59 p.m. Eastern Time, on the fourth
(4th) Business Day following Parent’s receipt of the Closing Net Cash Schedule (the “Response Time”),
which Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the proposed Closing Net
Cash Calculation and shall be accompanied by a reasonably detailed explanation for the basis for such revisions.
(iv) If,
on or prior to the Response Time, Parent notifies the Company in writing that it has no objections to the Closing Net Cash Calculation
or if Parent fails to deliver a Dispute Notice as provided in Section 2.01(d)(iii) prior to the Response Time, then the
Closing Net Cash Calculation as set forth in the Closing Net Cash Schedule shall be deemed to have been finally determined for purposes
of this Agreement and shall represent the Closing Net Cash at the Cash Determination Time for purposes of this Agreement.
(v) If
Parent delivers a Dispute Notice on or prior to the Response Time, then Representatives of the Company and Parent shall promptly (and
in no event later than one (1) Business Day thereafter) meet and attempt in good faith to resolve the disputed item(s) and negotiate
an agreed-upon determination of the Closing Net Cash, which agreed upon Closing Net Cash amount shall be deemed to have been finally determined
for purposes of this Agreement and shall represent the Closing Net Cash at the Cash Determination Time for purposes of this Agreement.
(vi) If
Representatives of the Company and Parent are unable to negotiate an agreed-upon determination of Closing Net Cash as of the Cash Determination
Time pursuant to Section 2.01(d)(v) within two (2) Business Days after delivery of the Dispute Notice (or such other
period as the Company and Parent may mutually agree upon), then any remaining disagreements as to the calculation of Closing Net Cash
shall be referred to for resolution to an impartial nationally or regionally recognized firm of independent certified public accountants
other than the Company’s accountants or Parent’s accountants (the “Accounting Firm”). The Company
and Parent shall promptly deliver to the Accounting Firm the work papers (subject to execution of customary work paper access letters
if requested by the auditor of the Company) and back-up materials used in preparing the Closing Net Cash Schedule and the Dispute Notice,
and the Company and Parent shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within three
(3) Business Days of accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting
Firm any materials related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided that no such
presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. The determination of
the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Closing
Net Cash made by the Accounting Firm shall be made in writing delivered to each of the Company and Parent, shall be final and binding
on the Company and Parent and shall (absent manifest error) be deemed to have been finally determined for purposes of this Agreement and
to represent the Closing Net Cash at the Cash Determination Time for purposes of this Agreement. Parent shall cause Merger Sub to extend
the Expiration Date until the resolution of the matters described in this Section 2.01(d)(vi); provided, that Merger Sub shall
not, and shall not be required to, extend the Offer beyond the Outside Date. The fees and expenses of the Accounting Firm shall be allocated
between the Company and Parent in the same proportion that the disputed amount of the Closing Net Cash that was unsuccessfully disputed
by such party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Closing Net Cash amount and such
fees and expenses shall be included in the calculation of Transaction Expenses, subject to the cap set forth therein with respect to such
fees and expenses allocated to Parent. If this Section 2.01(d)(vi) applies as to the determination of the Closing Net Cash at
the Cash Determination Time with respect to a scheduled expiration of the Offer, upon resolution of the matter in accordance with this
Section 2.01(d)(vi), the parties shall not be required to determine Closing Net Cash again (solely with respect to such applicable
scheduled expiration of the Offer) even though such applicable expiration of the Offer may occur later.
Section 2.02 Company
Actions.
(a) Schedule
14D-9. On the date the Offer Documents are filed with the SEC, or as promptly thereafter as practicable (but in no event later than
the first (1st) Business Day following the date on which the Offer Documents are filed), the Company shall file with the SEC
a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer, (such Schedule 14D-9, as amended from time to time,
together with any exhibits, amendments or supplements thereto, the “Schedule 14D-9”), including a description
of the Company Board Recommendation (subject to Section 6.02) and shall disseminate the Schedule 14D-9 to the holders of the
Company Common Stock, as and to the extent required by applicable U.S. federal securities Law. The Schedule 14D-9 shall also contain and
constitute the notice of appraisal rights required to be delivered by the Company under Section 262(d)(2) of the DGCL at the
time the Company first files the Schedule 14D-9 with the SEC and the fairness opinion delivered by Redwood Valuation Partners. The Company
shall set the record date for the holders of Company Common Stock to receive such notice of appraisal rights as the same date as the Stockholder
List Date and shall disseminate the Schedule 14D-9 including such notice of appraisal rights to such holders to the extent required by
section 262(d) of the DGCL. Parent and Merger Sub shall furnish to the Company all information concerning Parent and Merger Sub required
by applicable Law to be set forth in the Schedule 14D-9. Each of the Company, Parent and Merger Sub shall promptly correct any information
provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material
respect, and to correct any material omissions therefrom, and the Company shall take all steps necessary to amend or supplement the Schedule
14D-9 and to cause the Schedule 14D-9, as so amended or supplemented, to be filed with the SEC and disseminated to the holders of the
Company Common Stock, in each case, as and to the extent required by applicable Law. Except from and after an Adverse Recommendation Change
or in connection with any disclosures made in compliance with Section 6.02, Company shall provide Parent and its counsel with
copies of any written comments, and shall inform Parent and its counsel of any oral comments, that the Company or its counsel may receive
from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. Except from and after an Adverse
Recommendation Change or in connection with any disclosures made in compliance with Section 6.02, prior to the filing of the
Schedule 14D-9 (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of the Company
Common Stock, or responding to any comments of the SEC or its staff with respect to the Schedule 14D-9, the Company shall: (x) provide
Parent and its counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response (it being understood that Parent
and its counsel shall provide any comments thereon as soon as reasonably practicable); and (y) give reasonable and good faith consideration
to any comments made by Parent or its counsel. The Company shall respond promptly to any comments of the SEC or its staff with respect
to the Schedule 14D-9. The Company hereby approves of and consents to the Offer, the Merger and the Transactions and the inclusion in
the Offer Documents of a description of the Company Board Recommendation (except to the extent that the Company Board shall have withdrawn
or modified the Company Board Recommendation, respectively, in accordance with Section 6.02(b)). In addition, the Company
shall cause the Schedule 14D-9: (i) to comply in all material respects with the Exchange Act and other applicable laws; and (ii) to
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant
is made by the Company with respect to information supplied by or on behalf of Parent or Merger Sub for inclusion or incorporation by
reference in the Schedule 14D-9.
(b) Stockholder
Information. In connection with the Offer, the Company shall cause its transfer agent to promptly furnish Parent or Merger Sub with
mailing labels containing the names and addresses of the record holders of shares of the Company Common Stock as of the most recent practicable
date preceding the date on which the Offer is commenced and of those Persons becoming record holders subsequent to such date, together
with copies of all lists of stockholders, security position listings, computer files and all other information in the Company’s
possession or control regarding the beneficial owners of shares of the Company Common Stock, and shall furnish to Parent or Merger Sub
such information and reasonable assistance (including updated lists of stockholders, security position listings and computer files) as
Parent or Merger Sub may reasonably request in communicating the Offer and disseminating the Offer Documents to the Company Stockholders.
The date of the list of stockholders used to determine the persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated
is referred to as the “Stockholder List Date.” Subject to the requirements of applicable Law, and except for
such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent
and Merger Sub shall hold in confidence, in accordance with the Confidentiality Agreement, the information contained in any such labels,
listings and files, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated,
shall, upon request, deliver to the Company or destroy (and shall direct their agents to deliver to the Company or destroy) all copies
of such information (and certify in writing to the Company such destruction, if applicable).
(c) Share
Registry. The Company shall register (and shall instruct its transfer agent to register) the transfer of shares of the Company Common
Stock irrevocably accepted for payment by Merger Sub effective immediately after the Offer Closing Time.
Article III
THE MERGER
Section 3.01 The
Merger. On the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL (including Section 251(h) of
the DGCL), Merger Sub shall be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate
existence of Merger Sub shall cease and the Company shall continue as the surviving corporation (the “Surviving Corporation”).
Section 3.02 Merger
Closing. The closing of the Merger (the “Merger Closing”) shall take place remotely via the electronic
exchange of documents and signature pages at a date and time to be specified by Parent and the Company, which date shall be within
one (1) Business Day of the Offer Closing Time, subject to the satisfaction or (to the extent permitted by Law) waiver by the party
or parties hereto entitled to the benefits thereof of the conditions set forth in Article VIII, other than those conditions
that by their nature are to be satisfied at the Merger Closing, unless another date, time or place is mutually agreed to in writing by
Parent and the Company. The date on which the Merger Closing occurs is referred to in this Agreement as the “Merger Closing
Date.”
Section 3.03 Effective
Time. Prior to the Merger Closing, Parent and the Company shall prepare, and on the Merger Closing Date, the Company shall file with
the Secretary of State of the State of Delaware, a certificate of merger or other appropriate documents (in any such case, the “Certificate
of Merger”) executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings
required under the DGCL to effectuate the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly
filed with the Secretary of State of the State of Delaware or at such other time as Parent and the Company shall agree and specify in
the Certificate of Merger. The time at which the Merger becomes effective is referred to in this Agreement as the “Effective
Time.”
Section 3.04 Merger
Without Meeting of Stockholders. The Merger shall be governed by and effected under Section 251(h) of the DGCL, without
a vote on the adoption of this Agreement by the holders of shares of the Company Common Stock. The parties hereto agree to take all necessary
and appropriate action to cause the Merger to become, and that the Merger shall become, effective as soon as practicable following the
consummation (within the meaning of Section 251(h) of the DGCL) of the Offer, without a vote of stockholders of the Company
in accordance with Section 251(h) of the DGCL.
Section 3.05 Effects
of Merger. The Merger shall have the effects provided in this Agreement and as set forth in the DGCL.
Section 3.06 Certificate
of Incorporation and Bylaws.
(a) Immediately
following the Effective Time, the certificate of incorporation of the Surviving Corporation shall be amended and restated in its entirety
to be in the form attached as Exhibit B and, as so amended and restated, such certificate of incorporation shall be the certificate
of incorporation of the Surviving Corporation, until thereafter changed or amended as provided therein or permitted by applicable Law
(including the DGCL), subject to Section 7.03.
(b) Immediately
following the Effective Time, the bylaws of the Surviving Corporation shall be amended and restated in its entirety to be in the form
attached as Exhibit C and, as so amended and restated, such bylaws shall be the bylaws of the Surviving Corporation, until
thereafter changed or amended as provided therein or permitted by applicable Law (including the DGCL), subject to Section 7.03.
Section 3.07 Directors
and Officers.
(a) The
directors of Merger Sub immediately prior to the Effective Time shall be appointed as the directors of the Surviving Corporation immediately
following the Effective Time, until the earlier of their resignation or removal or until their respective successors are duly elected
and qualified, as the case may be. Each director of the Company immediately prior to the Effective Time shall execute and deliver a letter
effectuating his or her resignation as a member of the Company Board.
(b) The
officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation, until the earlier
of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.
The officers of the Company shall, immediately prior to the Effective Time, execute and deliver a letter effectuating his or her resignation
as an officer of the Company.
Section 3.08 Effect
on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of
the Company Common Stock or any shares of capital stock of Merger Sub:
(a) Capital
Stock of Merger Sub. Each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall
be converted into and become one fully paid and nonassessable share of common stock, par value $0.0001 per share, of the Surviving Corporation
and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
(b) Cancelation
of Treasury Stock and Certain Other Stock. Each share of Company Common Stock that: (i) is owned by the Company immediately prior
to the Effective Time; (ii) was owned by Parent, Merger Sub or any other subsidiary of Parent at the commencement of the Offer and
is owned by Parent, Merger Sub or any other subsidiary of Parent immediately prior to the Effective Time; or (iii) was irrevocably
accepted for purchase in the Offer shall no longer be outstanding and, in each case, shall automatically be canceled and shall cease to
exist, and no consideration shall be delivered or deliverable in exchange therefor.
(c) Conversion
of Company Common Stock. Except as provided in Section 3.08(b) and Section 3.08(d), each share of the
Company Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive the Offer
Price without interest (the “Merger Consideration”), less any applicable tax withholding. As of the Effective
Time, all such shares of the Company Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to
exist, and each holder of any such shares of the Company Common Stock shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration in accordance with Section 3.09(b), less any applicable tax withholding. For the
avoidance of doubt, at the Effective Time, any repurchase rights of the Company or other similar restrictions on shares of Company Common
Stock shall lapse in full and will be of no further force or effect, and all shares of Company Common Stock shall be fully vested as of
the Effective Time.
(d) Appraisal
Rights. Notwithstanding anything in this Agreement to the contrary, shares (“Appraisal Shares”) of the Company
Common Stock that are outstanding immediately prior to the Effective Time and that are held by any Person who is entitled to demand and
properly demands appraisal of such Appraisal Shares pursuant to, and who complies in all respects with, Section 262 of the DGCL (“Section 262”)
shall not be converted into the Merger Consideration as provided in Section 3.08(c), but instead, at the Effective Time, the
Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of any such
Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive payment of the fair value of such Appraisal
Shares in accordance with Section 262; provided that if any such holder shall fail to perfect or otherwise shall waive, withdraw
or lose the right to appraisal under Section 262 with respect to such Appraisal Shares or a court of competent jurisdiction shall
determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to receive the fair
value of such holder’s Appraisal Shares shall cease and such Appraisal Shares shall be deemed to have been converted as of the Effective
Time into, and to have become exchangeable solely for, the right to receive the Merger Consideration as provided in Section 3.08(c),
less any applicable tax withholding. The Company shall give prompt written notice to Parent of any demands received by the Company for
appraisal of any shares of the Company Common Stock, and Parent shall have the right to participate in, and direct all negotiations and
Proceedings with respect to such demands. The Company shall not, without the prior written consent of Parent, make any payment with respect
to, or settle or offer to settle, any such demands, or agree to do any of the foregoing. Prior to the Offer Closing Time, Parent shall
not, except with the prior written consent of the Company, require the Company to make any payment with respect to any demands for appraisal
or offer to settle or settle any such demands.
Section 3.09 Payment
of Merger Consideration.
(a) Paying
Agent. Not less than three (3) Business Days before the Merger Closing Date, Parent shall select a bank or trust company reasonably
acceptable to the Company to act as paying agent (the “Paying Agent”) for the payment of the Offer Price pursuant
to Section 3.08(c). The Surviving Corporation will deposit with the Paying Agent, as soon as practicable after the Effective
Time, out of Closing Net Cash, cash necessary to pay the Offer Price, if any, beyond what has been contributed by Parent, in respect of
the shares of the Company Common Stock that were converted into the right to receive cash pursuant to Section 3.08(c) (such
cash being hereinafter referred to as the “Payment Fund”).
(b) Payment
Procedure. As promptly as reasonably practicable (but in no event later than two (2) Business Days) after the Effective Time,
the Surviving Corporation or Parent shall cause the Paying Agent to mail to each holder of record of a certificate or certificates that,
immediately prior to the Effective Time, represented outstanding shares of the Company Common Stock (the “Certificates”)
that were converted into the right to receive the Merger Consideration pursuant to Section 3.08(c): (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to the Paying Agent, and shall be in such form and have such other provisions as are customary and reasonably acceptable
to the Company and Parent); and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration.
Upon surrender of a Certificate to the Paying Agent for cancelation, together with such letter of transmittal, duly executed and in proper
form, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to
receive, in exchange therefor, the Merger Consideration into which the shares of the Company Common Stock theretofore represented by such
Certificate shall have been converted pursuant to Section 3.08(c), and the Certificate so surrendered shall forthwith be canceled.
In the event of a transfer of ownership of the Company Common Stock that is not registered in the transfer records of the Company, payment
may be made to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes
required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of
Parent that such Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.09, each Certificate
shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender, the Merger Consideration
(without interest) into which the shares of the Company Common Stock theretofore represented by such Certificate have been converted pursuant
to Section 3.08(c). No interest shall be paid or accrue on the cash payable upon surrender of any Certificate.
(c) Treatment
of Book-Entry Shares. No holder of record of Book-Entry Shares shall be required to deliver a Certificate or a letter of transmittal
to the Paying Agent to receive the Merger Consideration in respect of such Book-Entry Shares. In lieu thereof, such holder of record shall,
upon receipt by the Paying Agent of an “agent’s message” in customary form (or such other evidence, if any, as the Paying
Agent may reasonably request), be entitled to receive the Merger Consideration into which such Book-Entry Shares shall have been converted
pursuant to Section 3.08(c), and the Surviving Corporation or Parent shall cause the Paying Agent to pay and deliver as promptly
as reasonably practicable after the Effective Time (but in no event later than five (5) Business Days after the Effective Time to
each such holder of record as of the Effective Time), an amount of U.S. dollars equal to the aggregate Cash Amount (without interest),
less any applicable tax withholding, to which such holder is entitled hereunder, and such Book-Entry Shares shall forthwith be canceled.
Payment of the Cash Amount with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are
registered.
(d) Adjustments.
If, between the Agreement Date and the Effective Time, the outstanding shares of the Company Common Stock are changed into a different
number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation
of shares, reclassification, recapitalization or other similar transaction, then the Merger Consideration shall be appropriately adjusted.
(e) No
Further Ownership Rights in the Company Common Stock. The Merger Consideration paid in accordance with the terms of this Article III
as a result of the conversion of any shares of the Company Common Stock shall be deemed to have been paid in full satisfaction of all
rights pertaining to such shares of the Company Common Stock. After the Effective Time there shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of shares of the Company Common Stock that were outstanding immediately prior
to the Effective Time. If, after the Effective Time, any Certificates are presented to the Surviving Corporation or the Paying Agent for
any reason, such Certificates shall be canceled and exchanged as provided in this Article III.
(f) Lost,
Stolen or Destroyed Certificates. Notwithstanding the requirements to surrender a Certificate contained in Section 3.09,
if 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 the Surviving Corporation, the posting by such Person of a bond, in such
reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the
Paying Agent will pay, in exchange for the shares of the Company Common Stock formerly represented by such lost, stolen or destroyed Certificate,
the applicable Merger Consideration to be paid in respect of such shares, less any applicable tax withholding.
(g) Termination
of Payment Fund. Any portion of the Payment Fund (and any interest or other income earned thereon) that remains undistributed as of
the 12-month anniversary of the Merger Closing Date shall be delivered to the Company or its designated Affiliate, upon demand, and any
former holder of the Company Common Stock entitled to payment of the Cash Amount who has not theretofore complied with this Article III
shall thereafter look only to the Company or any successor-in-interest of the Company for payment of its claim for the Cash Amount (subject
to applicable abandoned property, escheat and other similar Law).
(h) No
Liability. None of Parent, Merger Sub, the Company, the Surviving Corporation and the Paying Agent shall be liable to any Person in
respect of any cash from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar
Law. If any Certificate has not been surrendered prior to the date on which the Merger Consideration in respect of such Certificate would
otherwise escheat to or become the property of any Governmental Entity, any such Merger Consideration in respect of such Certificate shall,
to the extent permitted by applicable Law, immediately prior to such date become the property of the Surviving Corporation or its designated
Affiliate, free and clear of any claims or interest of any such holders or their successors, assigns or personal representative previously
entitled thereto, subject to the claims of any former holder of the Company Common Stock entitled to payment of Merger Consideration who
has not theretofore complied with this Article III.
(i) Investment
of Payment Fund. The Payment Fund shall be invested by the Paying Agent as directed by Parent. Nothing contained in this Section 3.09(i) and
no investment losses resulting from the investment of the Payment Fund shall diminish the rights of the Company Stockholders entitled
to payment of the Cash Amount to receive the Cash Amount. To the extent there are losses or the Payment Fund for any reason (including
Appraisal Shares losing their status as such) is less than the level required to promptly pay the Cash Amount pursuant to Section 3.08(c),
Parent shall replace, restore or add to the cash in the Payment Fund to ensure the prompt payment of the Cash Amount of the Merger Consideration.
Any interest and other income resulting from such investments shall be the property of, and paid to, Parent or its designated Affiliate.
(j) Withholding
Rights. Each of the Company, the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from
the amounts otherwise payable pursuant to this Agreement or the Offer such amounts as are required to be deducted and withheld with respect
to the making of such payment under the Code, or under any provision of state, local or foreign Tax Law. Amounts so deducted or withheld
and timely paid over to the appropriate Tax Authority shall be treated for all purposes of this Agreement as having been paid to the Person
in respect of whom such deduction or withholding was made. Parent shall: (i) use commercially reasonable efforts to provide advance
notice of any such deduction or withholding; and (ii) cooperate with the Company and any holders of Company Common Stock, Company
Stock Options or Company Restricted Stock Units to obtain any affidavits, certificates and other documents as may reasonably be expected
to afford to the Company and such holders reduction of or relief from any such deduction or withholding.
Section 3.10 Equity
Awards; Company Warrants.
(a) As
of immediately prior to the Effective Time, each Company Stock Option that is then outstanding but not then vested or exercisable shall
become immediately vested and exercisable in full. At the Effective Time, each In-the-Money Option that is then outstanding shall be canceled
and the holder thereof shall be entitled to receive: (i) an amount in cash without interest, less any applicable tax withholding,
equal to the product obtained by multiplying: (A) the excess of the Cash Amount over the exercise price per share of the Company
Common Stock underlying such Company Stock Option by (B) the number of shares of the Company Common Stock underlying such Company
Stock Option (such amount, the “Company Stock Option Cash Consideration”); and (ii) one CVR for each share
of the Company Common Stock underlying such Company Stock Option. Parent shall cause the Surviving Corporation to pay the Company Stock
Option Cash Consideration at or reasonably promptly after the Effective Time (but in no event later than five (5) Business Days after
the Effective Time). At the Effective Time, each Out-of-the-Money Option shall be cancelled for no consideration.
(b) As
of immediately prior to the Offer Closing Time, each Company Restricted Stock Unit that is then outstanding but not then vested shall
become immediately vested in full. At the Effective Time, each Company Restricted Stock Unit that is then outstanding shall be canceled
and the holder thereof shall be entitled to receive: (i) an amount in cash without interest, less any applicable tax withholding,
equal to the Cash Amount (the “Restricted Stock Unit Cash Consideration”); and (ii) one CVR. Parent shall
cause the Surviving Corporation to pay the Restricted Stock Unit Cash Consideration at or reasonably promptly after the Effective Time
(but in no event later than five (5) Business Days after the Effective Time).
(c) Prior
to the Effective Time, the Company shall satisfy all of its notification requirements under the terms of each outstanding and unexercised
Company Warrant, and, at the Effective Time, each Black-Scholes Warrant shall be cancelled for no consideration other than the Black-Scholes
Warrant Payout.
(d) Prior
to the Effective Time, the Company shall take all reasonable actions required to: (i) terminate the Company’s 2021 Employee
Stock Purchase Plan (the “Company ESPP”), as of immediately prior to the Merger Closing Date and (ii) provide
that no new offering period shall commence after the date of this Agreement.
(e) Prior
to the Effective Time, the Company Board (or, if appropriate, any committee thereof administering any Company Stock Plan) shall adopt
such resolutions or take such action by written consent in lieu of a meeting, providing for the transactions contemplated by this Section 3.10.
The Company shall provide that, on and following the Effective Time, no holder of any Company Stock Option or Company Restricted Stock
Unit shall have the right to acquire any equity interest in the Company or the Surviving Corporation in respect thereof and each Company
Stock Plan shall terminate as of the Effective Time.
Section 3.11 Contingent
Value Right. At or prior to the Offer Closing Time, Parent will authorize and duly adopt, execute and deliver, and will ensure that
a duly qualified rights agent with respect to the CVRs mutually agreeable to Parent and the Company (“Rights Agent”),
executes and delivers, a CVR Agreement, subject to any reasonable revisions to the CVR Agreement that are requested by such Rights Agent
or the Representative thereunder (provided that such revisions are not, individually or in the aggregate, materially detrimental to any
holder of CVRs). Parent and the Company shall cooperate, including by making changes to the form of CVR Agreement, as necessary to ensure
that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue
sky” Laws.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except:
(i) as disclosed in the reports, schedules, forms, statements and other documents filed by the Company with, or furnished by the
Company to, the SEC and publicly available at least two (2) Business Days prior to the Agreement Date (the “Filed
Company SEC Documents”) (but excluding in the case of this clause (i) any risk factor disclosure under the headings
“Risk Factors” or “Special Note Regarding Forward-Looking Statements” or other similar cautionary, predictive
or forward-looking disclosures contained in such Filed Company SEC Documents; provided that any factual information contained within
such disclosure shall not be excluded); or (ii) set forth in the letter, dated as of the Agreement Date, from the Company to Parent
and Merger Sub (which shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained
in this Article IV, and the disclosure in any section shall be deemed to qualify or apply to other sections in this Article IV
to the extent that it is reasonably apparent on its face that such disclosure also qualifies or applies to such other sections) (the “Company
Disclosure Letter”), the Company represents and warrants to Parent and Merger Sub as follows:
Section 4.01 Organization,
Standing and Power. The Company and its subsidiaries are duly organized, validly existing and in good standing under the laws of
the respective states in which they are organized. The Company and its subsidiaries have full power and authority necessary to enable
them to own, lease or otherwise hold their properties and assets and to conduct their business as presently conducted. The Company and
its subsidiaries are duly qualified or licensed to do business in each jurisdiction where the nature of its business or their ownership
or leasing of their properties makes such qualification or licensing necessary, other than where the failure to have such power and authority
or to be so qualified or licensed has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. True and complete copies of the amended and restated certificate of incorporation of the Company, as amended
to the Agreement Date (as so amended, the “Company Charter”), and the amended and restated bylaws of the Company,
as amended to the Agreement Date (as so amended, the “Company Bylaws”), are included in the Filed Company SEC
Documents. The Company Charter and the Company Bylaws are in full force and effect and the Company is not in violation of any of the
provisions of the Company Charter and is not in material violation of any of the provisions of the Company Bylaws.
Section 4.02 Capital
Structure.
(a) The
authorized capital stock of the Company consists of 500,000,000 shares of the Company Common Stock, par value $0.0001 per share and 10,000,000
shares of preferred stock, par value $0.0001 per share (the “Company Preferred Stock”). At the close of business
on June 5, 2025 (the “Measurement Date”): (i) 59,252,879 shares of the Company Common Stock were
issued and outstanding, (ii) 98,090 shares of the Company Common Stock were held by the Company in its treasury; (iii) 6,680,574
shares of the Company Common Stock were subject to outstanding Company Stock Options with a weighted-average exercise price of $2.49
per share, 210,000 of which were In-the-Money Options with a weighted-average exercise price of $0.31 per share; (iv) 173,367 shares
of the Company Common Stock were subject to outstanding Company Restricted Stock Units; (v) 12,194,026 shares of the Company Common
Stock were reserved for issuance pursuant to the Company Stock Plans, 3,242,548 of which were available for future issuance; (vi) 1,708,942
shares of the Company Common Stock were reserved for issuance pursuant to the Company ESPP, all of which were available for future issuance;
(vii) 22,444,974 shares of the Company Common Stock were subject to Company Warrants, 22,050,000 and 394,974 of which are Black-Scholes
Warrants and K2 Warrants, respectively, with a weighted-average exercise price of $2.25 and $1.52, respectively; and (viii) no shares
of Company Preferred Stock were issued or outstanding. Except as set forth above, at the close of business on the Measurement Date, no
shares of capital stock of the Company were issued, reserved for issuance or outstanding. From the Measurement Date to the Agreement
Date, there have been no issuances by the Company of shares of capital stock or other voting securities or equity interests of the Company
or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire shares of capital
stock or other voting securities or equity interests of the Company or other rights that give the holder thereof any economic or voting
interest of a nature accruing to the holders of the Company Common Stock, other than the issuance of the Company Common Stock upon the
exercise of Company Stock Options or vesting and settlement of Company Restricted Stock Units in accordance with their terms.
(b) All
outstanding shares of the Company Common Stock are, and all such shares that may be issued prior to the Effective Time will be when issued,
duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(c) As
of the Agreement Date, there are no bonds, debentures, notes or other indebtedness of the Company or its subsidiaries having the right
to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company
Common Stock may vote by virtue of their ownership thereof (“Voting Company Debt”).
(d) Except
as set forth in Section 4.02(d) of the Company Disclosure Letter, as of the Measurement Date, there are no options, warrants,
convertible or exchangeable securities, stock-based performance units or other rights or Contracts to which the Company is a party or
by which the Company is bound: (i) obligating the Company to issue, grant, deliver or sell, or cause to be issued, granted, delivered
or sold, additional shares of capital stock of, or other voting securities or equity interests in, or any security convertible or exchangeable
for any shares of capital stock of, or other voting securities or equity interests in, the Company or any Voting Company Debt; (ii) obligating
the Company to issue, grant or enter into any such option, warrant, security, unit, right or Contract; (iii) that give any Person
the right to receive any economic or voting interest of a nature accruing to the holders of the Company Common Stock; or (iv) restricting
the transfer of, containing any right of first refusal or right of first offer with respect to, or requiring the registration for sale
of any shares of, capital stock of the Company.
(e) As
of the Measurement Date, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any
shares of capital stock of the Company or options, warrants, convertible or exchangeable securities, stock-based performance units or
other rights to acquire shares of capital stock of the Company, except for: (i) acquisitions of shares of the Company Common Stock
in connection with the surrender of shares of the Company Common Stock by holders of Company Stock Options in order to pay the exercise
price of Company Stock Options; (ii) the withholding of shares of the Company Common Stock to satisfy tax obligations with respect
to awards granted pursuant to the Company Stock Plans; and (iii) the acquisition by the Company of Company Stock Options, Company
Restricted Stock Units in connection with the forfeiture of such awards.
(f) All
Company Stock Options and Company Restricted Stock Units are evidenced by written award agreements, in each case, substantially in the
forms that have been made available to Parent, except to the extent that such agreements differ from such forms and from one another with
respect to the number of shares of the Company Common Stock covered thereby, the type of award, the exercise price, exercise period, vesting
schedule, vesting terms and expiration date applicable thereto.
(g) Section 4.02(g) of
the Company Disclosure Letter sets forth a true and complete list of all outstanding Company Stock Options and Company Restricted Stock
Units, as of the Measurement Date, indicating for each such Company Stock Option or Company Restricted Stock Unit: (i) the name of
the holder thereof; (ii) the date of grant; (iii) the number of vested and unvested Company Stock Options and Company Restricted
Stock Units and shares of Company Common Stock subject thereto; and (iv) for each Company Stock Option, the exercise price. Each
Company Stock Option and Company Restricted Stock Unit was issued in accordance with the terms of the Company Stock Plan under which it
was granted and all applicable Laws. Each Company Stock Option characterized by the Company on Section 4.02(g) of the
Company Disclosure Letter as an “incentive stock option” within the meaning of Section 422 of the Code complies with
all of the applicable requirements of Section 422 of the Code.
(h) Section 4.02(h) of
the Company Disclosure Letter sets forth a complete and accurate list of all outstanding Company Warrants as of the Measurement Date,
indicating for each such Company Warrant: (i) the name of the holder thereof; (ii) the date of issuance; (iii) the number
of shares of Company Common Stock subject to such Company Warrant; (iv) the per share exercise price of such Company Warrant; and
(v) the date on which such Company Warrant expires.
Section 4.03 Subsidiaries;
Equity Interests. Except as set forth in Section 4.03 of the Company Disclosure Letter, the Company has no subsidiaries.
The Company does not own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest
or other equity interest in any other Person.
Section 4.04 Authority;
Execution and Delivery; Enforceability.
(a) The
Company has all requisite corporate power and authority to execute and deliver this Agreement and, assuming the representations and warranties
set forth in Section 5.08 are true and correct and that the Transactions are consummated in accordance with Section 251(h) of
the DGCL, to consummate the Transactions. The execution and delivery by the Company of this Agreement and, assuming the representations
and warranties set forth in Section 5.08 are true and correct and that the Transactions are consummated in accordance with
Section 251(h) of the DGCL, the consummation by the Company of the Transactions has been duly authorized by all necessary corporate
action on the part of the Company. The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution
and delivery by Parent and Merger Sub, and assuming the representations and warranties set forth in Section 5.08 are true
and correct, this Agreement constitutes the Company’s legal, valid and binding obligation, enforceable against it in accordance
with its terms (except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws
of general applicability relating to or affecting the enforcement of creditors’ rights and remedies, or by general principles of
equity governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity and except as rights to
indemnity and contribution may be limited by state or federal securities laws or public policy underlying such laws (the “Bankruptcy,
Equity and Indemnity Exception”)).
(b) The
Company Board, at a meeting duly called and held, duly and by unanimous vote of the Company Board adopted resolutions: (i) determining
that the Offer, the Merger and the other Transactions are fair to and in the best interest of the Company and the Company Stockholders;
(ii) approving and declaring advisable the Merger and the execution, delivery and performance by the Company of this Agreement and
the consummation of the Transactions; (iii) resolving that this Agreement and the Merger shall be governed by and effected under
Section 251(h) of the DGCL and that the Merger shall be consummated as soon as practicable following the Offer Closing Time;
and (iv) recommending that the Company Stockholders accept the Offer and tender their shares of the Company Common Stock pursuant
to the Offer (the recommendation set forth in subclause; (iv) of this Section 4.04(b), the “Company Board
Recommendation”), which resolutions, as of the Agreement Date, have not been rescinded, modified or withdrawn in any way.
(c) Prior
to the scheduled expiration of the Offer, the Company Board or the compensation committee of the Company Board has, or will have: (i) duly
and unanimously adopted resolutions approving as an “employment compensation, severance or other employee benefit arrangement”
within the meaning of Rule 14d-10(d)(1) under the Exchange Act each agreement, plan, program, arrangement or understanding entered
into or established by the Company or any of its former subsidiaries on or before the date hereof with or on behalf of any of its officers,
directors or employees, including the terms of Section 3.08, Section 3.10 and Section 7.03; and (ii) taken
all other actions reasonably necessary to satisfy the requirements of the non-exclusive safe harbor under Rule 14d-10(d) under
the Exchange Act with respect to the foregoing.
Section 4.05 No
Conflicts; Consents.
(a) The
execution and delivery by the Company of this Agreement do not, and the consummation of the Offer, the Merger and the other Transactions
and compliance with the terms hereof will not, conflict with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation or loss of a material
benefit under, or result in the creation of any Lien other than any Permitted Lien upon any of the properties or assets of the Company
or its subsidiaries under, any provision of: (i) the Company Charter or the Company Bylaws; (ii) any Material Contract to which
the Company is or its subsidiaries are a party; or (iii) subject to the filings and other matters referred to in Section 4.05(b),
any Judgment or, assuming the representations and warranties set forth in Section 5.08 are true and correct, any Law, in
either case, that is applicable to the Company or its subsidiaries or its and their properties or assets, other than, in the case of
clauses (ii) and (iii), any such items that would not reasonably be expected to, individually or in the aggregate, have a Company
Material Adverse Effect.
(b) No
Consent of, or registration, declaration or filing with, or permit from, any Governmental Entity, is required to be obtained or made
by or with respect to the Company in connection with the execution, delivery and performance of this Agreement or the consummation of
the Transactions, other than: (i) the filing with the SEC of (A) the Schedule 14D-9 and (B) such reports under the Exchange
Act as may be required in connection with this Agreement, the Offer, the Merger and the other Transactions; (ii) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of
the other jurisdictions in which the Company is qualified to do business; (iii) such filings as may be required under the rules and
regulations of Nasdaq; and (iv) such other items the failure of which to obtain or make would not reasonably be expected to, individually
or in the aggregate, have a Company Material Adverse Effect.
Section 4.06 SEC
Documents; Undisclosed Liabilities.
(a) Since
January 1, 2022, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the
Company with the SEC on a timely basis pursuant to Sections 13(a) and 15(d) of the Exchange Act (collectively, and, in each
case, including all exhibits and schedules thereto and documents incorporated by reference therein, as such statements and reports may
have been amended since the date of their filing and prior to the date hereof, the “Company SEC Documents”).
As of the Agreement Date, there are no outstanding or unresolved comments in any comment letters of the staff of the SEC relating to the
Company SEC Documents and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(b) As
of their respective SEC filing dates, each Company SEC Document complied as to form in all material respects with the requirements of
the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder, the “Securities
Act”), or the Exchange Act and the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated by the SEC
thereunder, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Document,
and except to the extent amended or superseded by a subsequent filing with the SEC prior to the Agreement Date, did not 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; provided that the Company makes no representation
or warranty with respect to information furnished in writing by Parent or Merger Sub specifically for inclusion or use in any such document;
provided, further, that no representation is made as to the accuracy of any forward-looking statements.
(c) The
audited annual consolidated financial statements and the unaudited quarterly condensed consolidated financial statements (including, in
each case, the notes thereto) of the Company included or incorporated by reference in the Company SEC Documents when filed: (i) complied
as to form in all material respects with the published rules and regulations of the SEC with respect thereto; (ii) were prepared
in all material respects in accordance with GAAP (except, in the case of unaudited quarterly condensed consolidated financial statements,
as permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods
involved (except as may be expressly indicated in the notes thereto); and (iii) fairly presented in all material respects the consolidated
or condensed financial position of the Company as of the dates thereof and the consolidated or condensed results of their operations and
cash flows for the periods covered thereby (subject, in the case of unaudited quarterly condensed consolidated financial statements, to
normal and recurring year-end adjustments).
(d) Except
as reflected or reserved against in the condensed consolidated balance sheet of the Company as of March 31, 2025, or the notes thereto,
included in the Company SEC Documents (such balance sheet and the notes thereto, the “Company Balance Sheet”),
the Company nor its subsidiaries have any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) other
than: (i) liabilities or obligations incurred in the ordinary course of business since the date of the Company Balance Sheet; (ii) liabilities
that are executory performance obligations arising under Contracts to which the Company is a party (other than to the extent arising from
a breach thereof by the Company); and (iii) liabilities or obligations incurred in connection with the Transactions. As of the Agreement
Date, neither the Company nor its subsidiaries have taken any actions that: (i) have resulted or would reasonably be expected to
result in any obligations or liabilities of the Company or its subsidiaries after the Merger Closing, except to the extent that such obligations
or liabilities are reflected in the calculation of Closing Net Cash or expressly contemplated by this Agreement; or (ii) were intended
to manipulate any element of the calculation of Closing Net Cash in a manner adverse to Parent or Merger Sub.
(e) The
Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange
Act) that: (i) are reasonably designed to ensure that material information relating to the Company and its subsidiaries are made
known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the Exchange Act are being prepared; and (ii) are effective at the
reasonable assurance level in all material respects to perform the functions for which they were established. From the date of the filing
of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 to the Agreement Date, neither
the Company nor the Company’s auditors have identified: (x) any significant deficiencies or material weaknesses in the design
or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information; or (y) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance
in all material respects with the applicable listing and other rules and regulations of Nasdaq. The books and records of the Company
have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements.
The Company has made available to Parent accurate and complete copies of the minutes (or drafts thereof requiring final approval) of all
meetings and written consents of the Company Board and each committee thereof since January 1, 2022 through the Measurement Date;
provided that the Company shall not be obligated to furnish to Parent any minutes for portions of meetings to the extent they discuss
the Transactions or alternative transactions considered by the Company Board or a committee thereof.
(f) Neither
the Company nor its subsidiaries have effected, entered into or created any securitization transaction or “off-balance sheet arrangement”
(as defined in Item 303(b) of Regulation S-K under the Exchange Act).
Section 4.07 Information
Supplied. None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference
in the Offer Documents or the Schedule 14D-9 will, at the time such document is filed with the SEC, at any time it is amended or supplemented
or at the time it is first published, sent or disseminated to the Company Stockholders, contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made,
not misleading; provided that the Company makes no representation or warranty with respect to information furnished in writing
by or on behalf of Parent or Merger Sub specifically for inclusion or incorporation by reference in any such document. The Schedule 14D-9
will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty
is made by the Company with respect to statements included or incorporated by reference therein based on information supplied by or on
behalf of Parent or Merger Sub for inclusion or incorporation by reference therein.
Section 4.08 Absence
of Certain Changes or Events.
(a) From
the date of the Company Balance Sheet to the Agreement Date, there has not been any change, event, condition, development, circumstance,
effect or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
(b) From
the date of the Company Balance Sheet to the Agreement Date, there has not been:
(i) any
declaration, setting aside, accrual or payment of any dividend on, or making of any other distribution (whether in cash, stock, equity
securities or property) in respect of, any capital stock of the Company (except for shares of Company Common Stock from terminated employees,
directors or consultants of the Company);
(ii) any
split, combination or reclassification of any capital stock of the Company or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company;
(iii) any
change in accounting methods, principles or practices by the Company (other than any immaterial change thereto), except as required (A) by
GAAP (or any authoritative interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting
Standards Board or any similar organization or (B) by Law, including Regulation S-X promulgated under the Securities Act;
(iv) any
sale, lease (as lessor), exclusive license or other disposition of (including through any “spin-off”), or pledge, encumbrance
or other Lien imposed upon (other than a Permitted Lien), any properties or assets (other than Intellectual Property) that are material,
individually or in the aggregate, to the Company except (A) sales or other dispositions of inventory and excess or obsolete properties
or assets in the ordinary course of business, and (B) pursuant to Contracts to which the Company is a party made available to Parent
and in effect prior to the date of the Company Balance Sheet;
(v) any
sale, assignment, lease, exclusive license, transfer or other disposition of, pledge, encumbrance or other Lien imposed upon (other than
a Permitted Lien), or permitting to lapse or abandonment of, any Intellectual Property owned by the Company that is material, individually
or in the aggregate, to the Company;
(vi) any
acquisition, in a single transaction or a series of related transactions, whether by merging or consolidating with, or by purchasing an
equity interest in or a portion of the assets of, or by any other similar manner, any business or any corporation, partnership, limited
liability company, joint venture, association or other business organization or division thereof or any other Person (other than the Company);
(vii) any
filing of or change to a material Tax election, any change to an annual Tax accounting period or any adoption of or change to a material
method of Tax accounting, any filing of an amended material Tax Return, any failure to timely file any material Tax Return required to
be filed (taking into account extensions obtained in the ordinary course of business) or pay any Tax that is due or payable, any entry
into a closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law),
any settlement or compromise of a material Tax liability or refund, any consent to any extension or waiver of any limitation period with
respect to any material claim or assessment for Taxes;
(viii) any
Contract to which the Company or its subsidiaries are a party that (A) materially restricts the ability of the Company or its Affiliates,
including following the Offer Closing Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the
operation of Contracts to which Parent or any of its Affiliates is a party prior to the Offer Closing Time) following the Merger Closing,
to compete in any business or with any Person in any geographical area, (B) requires the Company or its Affiliates, including following
the Offer Closing Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts
to which Parent or any of its Affiliates is a party prior to the Offer Closing Time) following the Merger Closing, to conduct any business
on a “most favored nations” basis with any third party in any material respect, (C) grants a third party development
(other than solely for or on behalf of the Company or its Affiliates), marketing or distribution rights with respect to the Company Products,
(D) requires the Company or its Affiliates to purchase a minimum quantity of goods or supplies relating to the Company Products in
favor of any third party, or (E) obligates the Company or its Affiliates to purchase or otherwise obtain any product or service exclusively
from any third party or sell any product or service exclusively to any third party;
(ix) any
Contract to which the Company or its subsidiaries are a party with any academic institution or Governmental Entity that provides for the
provision of funding to the Company or its subsidiaries for research and development activities involving the creation of any material
Intellectual Property for the Company or its subsidiaries in respect of the Company Products;
(x) any
Contract to which the Company or its subsidiaries are a party, other than with respect to any partnership that is wholly owned by the
Company, that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity
pursuant to which the Company or its subsidiaries have an obligation (contingent or otherwise) to make a material investment in or material
extension of credit to any Person;
(xi) any
Contract between the Company or its subsidiaries and any Governmental Entity, except for clinical study agreements, sponsored research
agreements, materials transfer agreements and non-disclosure agreements entered into in the ordinary course of business;
(xii) any
settlement or compromise of, or written offer or proposal to settle or compromise, any Proceeding involving or against the Company or
its subsidiaries;
(xiii) except
as required pursuant to the terms of any Company Benefit Plan in effect as of the date of the Company Balance Sheet, (A) any granting
to any director or employee of the Company of any increase in compensation, bonus, severance or termination pay, or (B) any entry
by the Company into any employment, consulting, severance or termination agreement with any director or any employee; in any such case
of (A) or (B), other than as disclosed in the Company SEC Documents or Section 4.08 or Section 4.17 of the
Company Disclosure Letter; or
(xiv) any
agreement on the part of the Company or its subsidiaries to do any of the foregoing.
Section 4.09 Taxes.
(a) The
Company has: (i) properly prepared and timely filed, or caused to be timely filed, taking into account any extensions of time within
which to file, all income and other material Tax Returns required to have been filed by or with respect to the Company and its subsidiaries
and all such Tax Returns are true and complete in all material respects; and (ii) paid, or caused to be paid, in full on a timely
basis all material Taxes imposed on or required to be paid by or with respect to the Company or its subsidiaries, whether or not shown
as due on any such Tax Returns, including any material Taxes required to be withheld, collected or deposited by or with respect to the
Company or its subsidiaries.
(b) (i) No
deficiency for any material Tax has been asserted or assessed by a Tax Authority in writing against the Company or its subsidiaries which
deficiency has not been paid, settled or withdrawn or is not being contested in good faith in appropriate Proceedings; and (ii) no
audit, examination, investigation, inquiry or other proceeding in respect of any Taxes or Tax Returns of the Company or its subsidiaries
(A) is in progress or (B) has been proposed or threatened in writing.
(c) The
Company and its subsidiaries have complied in all material respects with all applicable Laws relating to the payment, collection, withholding
and remittance of Taxes (including information reporting requirements) with respect to payments made to any employee, creditor, independent
contractor, stockholder or other third party.
(d) Neither
the Company nor its subsidiaries have any liability for the Taxes of any Person (other than the Company) pursuant to Treasury Regulations
Section 1.1502-6 (or any similar provision of state, local or foreign Law) as a transferee or successor, or by contract (other than
a contract entered into in the ordinary course of business a principal purpose of which is not related to Taxes). The Company is not nor
has it ever been a member of an affiliated group filing a consolidated U.S. federal income Tax Return or any other affiliated, consolidated,
combined, unitary, group relief or similar Tax group filing or a similar Tax Return (other than a group the common parent of which was
the Company).
(e) Neither
the Company nor its subsidiaries have received written notice of any material claim made by a Tax Authority in a jurisdiction where the
Company or its subsidiaries do not file a Tax Return that the Company or its subsidiaries are subject to taxation by that jurisdiction.
Neither the Company nor its subsidiaries have extended (which extension remains outstanding), and there are no outstanding requests, agreements,
consents or waivers to extend, the statutory period of limitations applicable to the collection, assessment or reassessment of any material
Taxes or material Tax deficiencies against the Company or its subsidiaries, other than pursuant to extensions of time to file Tax Returns
obtained in the ordinary course of business.
(f) There
are no Liens for Taxes upon the assets or properties of the Company or its subsidiaries except for Permitted Liens.
(g) Neither
the Company nor its subsidiaries are a party to, bound by or subject to any: (i) Tax sharing, Tax allocation or Tax indemnification
agreement that would have a continuing effect after the Merger Closing Date (other than tax provisions of agreements with third parties,
the primary subject matter of which is not Tax, such as licensing or joint development agreements); (ii) closing agreement within
the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law), which agreement will be binding
on the Company, as applicable, after the Merger Closing Date; or (iii) private letter ruling of the Internal Revenue Service or comparable
ruling of any Tax Authority.
(h) Neither
the Company nor its subsidiaries have been a party to or participated in a transaction that constitutes a “listed transaction”
within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2) (or any similar
provision of state or local Law) for a taxable period for which the applicable statute of limitations remains open.
(i) Neither
the Company nor its subsidiaries have been, a U.S. real property holding company within the meaning of Section 897(c) of the
Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(j) The
Company will not be required to include in a taxable period ending after the Merger Closing Date taxable income attributable to income
that accrued in a taxable period prior to the Merger Closing Date but was not recognized for Tax purposes in such prior taxable period
as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting,
the cash method of accounting, deferred revenue realized or prepaid amounts received outside the ordinary course of business, or Section 481
of the Code or comparable provisions of state, local or foreign Tax Law.
(k) Notwithstanding
anything to the contrary in this Agreement, this Section 4.09, Section 4.08 (to the extent it relates to Taxes)
and Section 4.17 (to the extent it relates to Taxes) contain the only representations and warranties by the Company with respect
to Taxes in this Agreement.
Section 4.10 Contracts.
(a) Except
for this Agreement and the Contracts disclosed in and filed as exhibits to the Filed Company SEC Documents or a Company Benefit Plan,
Section 4.10(a) of the Company Disclosure Letter sets forth a true and complete list, as of the Agreement Date, and the
Company has made available to Parent true and complete copies, of:
(i) any
Contract to which the Company or its subsidiaries are a party that provides for recurring annual minimum payments or receipts (other than
milestone, royalty or similar payments or other contingent payments) in excess of $50,000;
(ii) each
Contract to which the Company or its subsidiaries are a party relating to indebtedness for borrowed money or any financial guaranty;
(iii) each
Contract to which the Company or its subsidiaries are a party involving in excess of $50,000 that provides for the acquisition or disposition
of any assets or any businesses (whether by merger, sale of stock, sale of assets or otherwise) that (A) has not yet been consummated
or (B) has outstanding any purchase price adjustment, “earn-out,” material payment or similar obligations on the part
of the Company or its subsidiaries;
(iv) each
Contract to which the Company or its subsidiaries are a party pursuant to which (A) the Company or its subsidiaries have continuing
milestone or similar contingent payments obligations, including upon the achievement of regulatory or commercial milestones or payment
of royalties or other amounts calculated based upon any revenues or income of the Company or its subsidiaries, in each case, that could
result in payments in excess of $50,000, and in each case, excluding indemnification and performance guarantee obligations provided for
in the ordinary course of business; (B) the Company or its subsidiaries grant to or receive from any third party any license to,
or covenant not to sue or other right with respect to, any Intellectual Property material to the Company’s business (other than
non-exclusive licenses entered in the ordinary course of business); or (C) the Company or its subsidiaries have uncompleted performance
obligations relating to any research, development and/or collaboration programs or pre-clinical and/or clinical trials and studies;
(v) each
Contract to which the Company or its subsidiaries are a party that obligates the Company or its subsidiaries to make any capital commitment,
loan or expenditure in excess of $50,000 after the Agreement Date;
(vi) each
stockholders’, investors rights’, registration rights or similar Contract to which the Company is a party (excluding Contracts
governing Company Stock Options and Company Restricted Stock Units);
(vii) each
Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or its subsidiaries lease
or sublease any material real property; and
(viii) each
Contract with or binding upon the Company or its subsidiaries, or its and their properties or assets that is of the type that would be
required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
Each such Contract described in clauses (i) through (viii) is
referred to in this Agreement as a “Material Contract.”
(b) Each
of the Material Contracts is valid, binding and enforceable (except as such enforceability may be limited by the Bankruptcy, Equity and
Indemnity Exception) on the Company or its subsidiaries, and, to the knowledge of the Company, each other party thereto, and is in full
force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect as have not had, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no material default
under any Material Contract by the Company or its subsidiaries, or, to the knowledge of the Company, any other party thereto, and no event
has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company,
its subsidiaries, or, to the knowledge of the Company, any other party thereto, in each case, excluding any Contracts listed in Section 4.05(a) of
the Company Disclosure Letter.
Section 4.11 Litigation.
There is no Proceeding pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries, that has resulted
in, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, nor is there any Judgment
outstanding against the Company or its subsidiaries that has had, or would reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect.
Section 4.12 Property.
Neither the Company nor its subsidiaries own, nor to the Company’s knowledge, have ever owned, any real property or any leasehold
interest in any real property.
Section 4.13 Compliance
with Laws.
(a) Since
January 1, 2022, the Company and its subsidiaries have been, in compliance with all Judgments and Laws applicable to their business
or operations, except for instances of noncompliance that have not had, and would not reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect. Since January 1, 2022 the Company and its subsidiaries have had, in effect all
Authorizations necessary for them to conduct their business as presently conducted, and all such Authorizations are in full force and
effect, except for such Authorizations the absence of which, or the failure of which to be in full force and effect, have not had, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Since
January 1, 2022, except as would not reasonably be expected to, individually or in the aggregate, result in a material liability
to the Company or its subsidiaries, none of the Company, its subsidiaries, or any of its officers, directors, or employees acting on behalf
of the Company, nor, to the knowledge of the Company, any agents or other Persons acting on behalf of the Company, has, in the course
of its actions for, or on behalf of, the Company: (i) directly or indirectly, used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to foreign or domestic political activity; (ii) made, offered or authorized
any direct or indirect unlawful payments to any foreign or domestic Governmental Official, employee or health care professional or to
any foreign or domestic political parties or campaigns; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977,
as amended, or any other applicable anti-bribery, anti-corruption, anti-money laundering, record keeping and internal control Laws, including
but not limited to any such Laws that prohibit private commercial bribery; or (iv) made, offered or authorized any other bribe, unlawful
rebate, payoff, influence payment, kickback or other unlawful payment. Since January 1, 2022 to the Agreement Date, neither the Company
nor its subsidiaries have received any written communication that alleges any of the foregoing, and are not, nor have been, to the knowledge
of the Company, under administrative, civil, or criminal investigation, indictment, information, suspension, debarment, or audit (other
than a routine contract audit) by any party, in connection with alleged or possible violations of any Law that prohibits bribery, corruption,
fraud, or other improper payments.
Section 4.14 Regulatory
Matters.
(a) The
Company has made available to Parent true and complete copies of: (i) all Regulatory Authorizations from the FDA; and (ii) all
material Regulatory Authorizations from any other applicable Regulatory Authorities held by the Company relating to the Company Products.
Except as would not reasonably be expected to, individually or in the aggregate, result in a Company Material Adverse Effect: (x) the
Company has filed, maintained or furnished with the applicable Regulatory Authorities all required filings, declarations, listings, registrations,
submissions, amendments, modifications, notices and responses to notices, applications and supplemental applications, reports (including
all required adverse event reports) and other information (collectively, the “Health Care Submissions”); and
(y) all such Health Care Submissions were complete and accurate and in compliance in all material respects with applicable Health
Laws when filed (or were corrected or completed in a subsequent filing).
(b) (i) Since
January 1, 2022, the Company and its subsidiaries have been in material compliance with all Health Laws applicable to the Company’s
business and Company Products; (ii) as of the Agreement Date, neither the Company nor its subsidiaries have received any written
notice or other communication from any Regulatory Authority alleging any material violation of any Health Law; and (iii) there are
no investigations, suits, claims, actions or proceedings pending, or to the knowledge of the Company, threatened against the Company or
its subsidiaries alleging any violation by the Company, its subsidiaries or the Company Products of any such Health Law.
(c) Since
January 1, 2022, to the Company’s knowledge, all pre-clinical studies and clinical trials conducted with respect to the Company
Products by or at the direction of the Company have been conducted in material compliance with all applicable Laws, including the FDCA
and its applicable implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312, and any other applicable regulations that relate
to the proper conduct of clinical studies. No clinical trial conducted by or, on behalf of, the Company has been terminated or suspended
by any Regulatory Authority. As of the Agreement Date, neither the Company nor its subsidiaries have outstanding written notifications
or other written communications from any institutional review board, ethics committee or safety monitoring committee raising any material
issues, including from any Regulatory Authority in any jurisdiction, that requires or would require the termination or suspension or investigation
of, or place a clinical hold order on or otherwise materially restrict, any clinical studies in which the Company or its subsidiaries
have participated and, to the knowledge of the Company, no such action has been threatened against the Company or its subsidiaries. Nothing
in this Section 4.14(c) will apply to the Company’s compliance with Data Privacy and Security Requirements.
(d) Since
January 1, 2022, to the Company’s knowledge, all manufacture of the Company Product, including any clinical supplies used in
any clinical trials, by or on behalf of the Company has been conducted in material compliance with the applicable specifications and requirements
of applicable Health Laws. As of the Agreement Date, neither the Company nor, to the knowledge of the Company, any person acting on its
behalf has, with respect to the Company Product: (i) been subject to a Regulatory Authority shutdown or import or export prohibition;
or (ii) received any FDA Form 483, or other Regulatory Authority written notice of inspectional observations, “warning
letters,” “untitled letters” or written requests or requirements to make any material adverse changes to the Company
Product or any of the Company’s business operations due to noncompliance with any applicable Health Law or Regulatory Authorization.
(e) None
of the Company, its subsidiaries, or, to the knowledge of the Company, its officers, employees, or any clinical investigator acting for
the Company has: (i) made an untrue statement of a material fact or fraudulent statement to any Regulatory Authority or any other
Governmental Entity; (ii) failed to disclose a material fact required to be disclosed to any Regulatory Authority or any other Governmental
Entity; or (iii) committed an act, made a statement of material fact, or failed to make a statement of material fact required to
be disclosed, including with respect to any scientific data or information, that, at the time such disclosure was made or failure to disclose
occurred, would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements
of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991), and any amendments
thereto, or for any Regulatory Authority to invoke any similar policy or any other statute or regulation regarding the communication or
submission of false information to any applicable Regulatory Authority or Governmental Entity. The Company has not committed or engaged
in any fraud or falsification or forgery of any research or development data, report, studies or publications of any document or statement
voluntarily submitted or required to be submitted to any Regulatory Authority or any other Governmental Entity. None of the Company, its
subsidiaries, or, to the knowledge of the Company, its officers, employees, or any clinical investigator acting for the Company, is currently
or has been convicted of any crime that has resulted in, or would reasonably be expected to result in, debarment pursuant to 21 U.S.C.
Section 335a (a) or (b) or exclusion from participation in any federal health care program pursuant to 42 U.S.C. Section 1320a-7.
(f) No
Company Product that is or has been manufactured, tested, distributed, held or marketed by or on behalf of the Company has been recalled,
withdrawn or suspended (whether voluntarily or otherwise) due to material noncompliance with the FDCA or, to the Company’s knowledge,
has been adulterated or misbranded in material violation of the FDCA. No Proceedings (whether complete or pending) seeking the recall,
withdrawal, suspension or seizure of any such Company Product or pre-market approvals or marketing authorizations are pending or, to the
knowledge of the Company, threatened against the Company. The Company has filed all annual and periodic reports, amendments and safety
reports required for the Company Product required to be made to any Regulatory Authority.
(g) Neither
the Company nor its subsidiaries are a party to any corporate integrity agreement, monitoring agreement, consent decree, settlement order,
or similar agreement with or imposed by any Regulatory Authority or any other Governmental Entity.
Section 4.15 Environmental
Matters. Except for matters that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse
Effect: (i) the Company and its subsidiaries are, and since January 1, 2022 have been, in compliance with all applicable Environmental
Laws; (ii) since January 1, 2022, neither the Company nor its subsidiaries have been subject to a material Judgment or Proceeding
pursuant to any applicable Environmental Law; (iii) since January 1, 2022, neither the Company nor its subsidiaries have received
any written notice alleging that the Company or its subsidiaries are in violation of, or has liability or is a “potentially responsible
party” under, any applicable Environmental Law; and (iv) neither the Company nor its subsidiaries have treated, stored, handled,
transported, generated, disposed of, arranged for the disposal of, released, exposed any Person to, or owned or operated any property
or facility contaminated by, any Hazardous Substance, in each case as would give rise to liability under applicable Environmental Laws.
Section 4.16 Labor
Relations.
(a) There
are no collective bargaining or similar Contracts with any labor union, labor organization, or works council to which the Company or
its subsidiaries are a party or by which the Company or its subsidiaries are bound. None of the employees of the Company or its subsidiaries
are represented by any union with respect to their employment by the Company.
(b) The
Company has not experienced any labor disputes, strikes, work stoppages, slowdowns, lockouts or union organization attempts concerning
any employees of the Company. There is no unfair labor practice charge or complaint or other Proceeding presently pending or, to the
knowledge of the Company, threatened against the Company before the National Labor Relations Board or any equivalent state or local Governmental
Entity, in each case, that has resulted in, or would reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect.
(c) Except
as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and its
subsidiaries have been for at least the last three (3) years in compliance with all applicable Laws relating to labor and employment,
including those relating to wages and hours (including the classification of independent contractors and exempt and non-exempt employees),
harassment, discrimination, retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closure and layoff notices
(e.g., Worker Adjustment and Retraining Notification Act of 1988, as amended), workers’ compensation, labor relations, paid
time off and other employee leave requirements, wage deductions, affirmative action, unemployment insurance, benefits, labor and the
Immigration and Nationality Act, 8 U.S.C. Sections 1101 et seq. and its implementing regulations.
Section 4.17 Employee
Benefits.
(a) With
respect to each material Company Benefit Plan, the Company has made available to Parent true and complete copies of: (i) such Company
Benefit Plan, including any amendment thereto (or, in either case, with respect to any unwritten Company Benefit Plan, a written description
thereof); (ii) each trust, insurance, annuity or other funding Contract to which the Company or its subsidiaries is a party with
respect thereto; (iii) a current Internal Revenue Service opinion or favorable determination letter related thereto (if any); (iv) the
current summary plan description and any material modifications thereto, if any, or any written summary provided to participants with
respect to any plan for which no summary plan description exists; and (v) the most recent annual report on Form 5500 required
to be filed with the Internal Revenue Service with respect thereto (if any).
(b) Except
as has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, Company Material Adverse
Effect: (i) each Company Benefit Plan has been administered in accordance with its terms and is in compliance with all applicable
Laws, including applicable provisions of ERISA and the Code; (ii) there are no pending audits or investigations by any Governmental
Entity involving any Company Benefit Plan; and (iii) there are no pending or, to the knowledge of the Company, threatened claims
(except for individual claims for benefits payable in the normal course of operation), suits or other Proceedings involving any Company
Benefit Plan, any fiduciary thereof or any service provider thereto.
(c) Each
Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a
favorable determination letter as to such qualification or registration from the Internal Revenue Service, has applied (or has time remaining
in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under
applicable Law in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination.
(d) Neither
the Company nor any ERISA Affiliate sponsors, maintains, contributes to, or has sponsored, maintained, contributed to or been required
to maintain or contribute to, or otherwise has any current or contingent liability or obligation under or with respect to: (i) any
“employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or was subject to Section 302
or Title IV of ERISA or Section 412 of the Code or is otherwise a “defined benefit plan” (as defined in Section 3(35)
of ERISA); (ii) any “multiemployer plan” within the meaning of Section 3(37) of ERISA (iii) any plan that has
two or more contributing sponsors, at least two of whom are not under common control, within the meaning of Section 4063 of ERISA
or Section 413(c) of the Code; or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40)
of ERISA. Neither the Company nor its subsidiaries have any current or contingent liability or obligation as a consequence of at any time
being considered a single employer with any other Person under Section 414 of the Code.
(e) Neither
the Company nor its subsidiaries have any current or potential obligation or liability in respect of post-retirement or post-service health,
medical or life insurance benefits for retired, former or current employees of the Company or other Person, other than: (i) for continuation
coverage required under Section 4980B(f) of the Code or any state Laws at the sole expense of the participant; or (ii) COBRA
continuation coverage provided to a terminated employee in connection with the execution of a release of claims and disclosed in Section 4.17(e) of
the Company Disclosure Letter. Neither the Company nor its subsidiaries have incurred (whether or not assessed) any Tax or penalty under
Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(f) Neither
the execution of this Agreement nor the consummation of the Offer, the Merger or any other Transaction (alone or in conjunction with any
other event, including any termination of employment on or following the Effective Time) will result in the payment or provision of any
amount (whether in cash or property or the vesting of property) to any current or former director, officer, employee or consultant of
the Company or its subsidiaries under any Company Benefit Plan or otherwise that would result in any such payment or provision of any
amount not being deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of
the Code.
(g) Neither
the Company nor its subsidiaries are party to, and otherwise obligated under, any plan, policy, agreement or arrangement that provides
for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of state
or local Law relating to Tax).
Section 4.18 Intellectual
Property.
(a) To
the Company’s knowledge, neither the Company nor its subsidiaries nor the operation of the Company’s business has in the past
three years infringed, misappropriated or otherwise violated, any Intellectual Property of any third Person in any material respect. No
Proceedings are, or since the past three years have been, pending or, to the knowledge of the Company, threatened which allege that the
Company, its subsidiaries, or the operation of the Company’s business infringes, misappropriates or otherwise violates any Intellectual
Property of any third Person, except as would not be material to the Company.
(b) Since
January 1, 2022, to the Company’s knowledge, the Company has not experienced any material unauthorized access to or other material
breach of security with respect to the information technology systems owned, operated or controlled by the Company.
Section 4.19 Privacy
and Data Security.
(a) The
Company: (i) has at all times since January 1, 2022 been in compliance in all material respects with the Data Privacy and Security
Requirements; (ii) has implemented and maintained, since January 1, 2022, commercially reasonable measures designed to ensure
the availability, security and integrity of the Company’s information technology systems, and to protect Personal Information in
its possession or control against loss, damage and unauthorized access, use, modification or other misuse; and (iii) is and has been,
at all times since January 1, 2022, processing Personal Information in compliance in all material respects with all consents obtained
by the Company that apply to the Company’s processing of such Personal Information, including to the extent applicable, Data Privacy
and Security Requirements. After consummation of the Transactions, the Company will continue to have materially the same rights to use,
process, store and maintain Personal Information as the Company had to use, process, and store such Personal Information immediately prior
to the Merger Closing.
(b) Since
January 1, 2022, there have been no data breaches or other data incidents or intrusions: (i) resulting in the material loss,
damage or material unauthorized access, use unauthorized transmission, modification or other material misuse of any Personal Information
maintained by or on behalf of the Company, or (ii) that have caused a material disruption to the function of the Company’s
information technology systems, in each case with respect to clauses (i) and (ii), that required notification to Governmental Entities,
individuals, or other third party under applicable Data Privacy and Security Requirements. Neither the Company nor its subsidiaries have
received any written complaints, notices of investigation or other written correspondence with respect to any investigation from any Governmental
Entity or received written notice of any litigation currently pending or threatened against it, in each case, relating to the collection,
use or processing of Personal Information by the Company or alleging any violation by the Company of Privacy Laws.
Section 4.20 Brokers
and Other Advisors. No broker, investment banker, financial advisor or other Person, other than Redwood Valuation Partners, the fees
and expenses of which will be paid by the Company, is entitled to any broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the Offer, the Merger and the other Transactions based upon arrangements made by or on behalf
of the Company or any of its Affiliates. The Company has provided its engagement letter with Redwood Valuation Partners to Parent.
Section 4.21 No
Rights Agreement; Anti-Takeover Provisions. As of the Agreement Date, the Company is not party to a stockholder rights agreement,
“poison pill” or similar anti-takeover agreement or plan. The Company Board has taken all action necessary to render Section 203
of the DGCL and any other takeover, anti-takeover, moratorium, “fair price,” “control share,” or similar Law
inapplicable to the Offer and the Merger. Assuming the accuracy of the representations and warranties set forth in Section 5.08,
no restrictions of any other “business combination,” “control share acquisition,” “fair price,” “moratorium”
or other anti-takeover Laws (each, a “Takeover Law”) apply or will apply to the Company pursuant to this Agreement
or the Transactions.
Section 4.22 Opinion
of Financial Advisor. The Company Board has received the opinion of Redwood Valuation Partners, outside financial advisor to the
Company, to the effect that, as of the date of such opinion and based upon and subject to the qualifications, limitations, assumptions
and other matters set forth therein, the Cash Amount to be received by the holders of shares of Company Common Stock (other than Excluded
Shares and Appraisal Shares), pursuant to the terms of this Agreement is fair, from a financial point of view, to such holders. It is
agreed and understood that such opinion is for the benefit of the Company Board and may not be relied upon by Parent or Merger Sub. The
Company will make available to Parent and Merger Sub a signed copy of such opinion promptly following the Agreement Date.
Section 4.23 No
Vote Required. Assuming the Transactions are consummated in accordance with Section 251(h) of the DGCL and assuming the
accuracy of the representations and warranties set forth in Section 5.08, no stockholder votes or consents are needed to
authorize this Agreement or for consummation of the Transactions.
Article V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except set forth in the letter, dated as of the
Agreement Date, from the Parent and Merger Sub to the Company (which shall be arranged in numbered and lettered sections corresponding
to the numbered and lettered sections contained in this Article V, and the disclosure in any section shall be deemed to qualify
or apply to other sections in this Article V to the extent that it is reasonably apparent on its face that such disclosure
also qualifies or applies to such other sections) (the “Parent Disclosure Letter”), Parent and Merger Sub, jointly
and severally, represent and warrant to the Company that:
Section 5.01 Organization,
Standing and Power. Each of Parent and Merger Sub 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 the concept is recognized by such jurisdiction) and
has full corporate power and authority to conduct its businesses as presently conducted.
Section 5.02 Merger
Sub.
(a) Merger
Sub was formed solely for the purpose of entering into the Transactions, and since the date of its incorporation, Merger Sub has not
carried on any business, conducted any operations or incurred any liabilities or obligations other than the execution of this Agreement,
the performance of its obligations hereunder and matters ancillary thereto.
(b) The
authorized capital stock of Merger Sub consists of 10,000 shares of common stock, par value $0.0001 per share, all of which have been
validly issued, are fully paid and nonassessable and are owned directly or indirectly by Parent free and clear of any Lien.
Section 5.03 Authority;
Execution and Delivery; Enforceability. Each of Parent and Merger Sub has all requisite corporate power and authority to execute
and deliver this Agreement and the CVR Agreement and to consummate the Transactions, subject, in the case of the Merger, to the adoption
of this Agreement by Parent, as sole stockholder of Merger Sub (which shall occur immediately following the execution of this Agreement).
The execution and delivery by each of Parent and Merger Sub of this Agreement and the consummation by it of the Transactions have been
duly authorized by all necessary corporate action on the part of Parent and Merger Sub, subject, in the case of the Merger, to the adoption
of this Agreement by Parent, as sole stockholder of Merger Sub (which shall occur immediately following the execution of this Agreement).
Neither the approval and adoption of this Agreement nor the consummation of the Offer, the Merger or the other Transactions requires
any approval of the stockholders of Parent. Each of Parent and Merger Sub has duly executed and delivered this Agreement, and, assuming
due authorization, execution and delivery by the Company, this Agreement constitutes its, and at the Offer Closing Time the CVR Agreement
will constitute Parent’s, legal, valid and binding obligation, enforceable against it in accordance with its terms (subject to
the Bankruptcy, Equity and Indemnity Exception).
Section 5.04 No
Conflicts; Consents.
(a) The
execution and delivery by each of Parent and Merger Sub of this Agreement and the CVR Agreement do not, and the consummation of the Offer,
the Merger and the other Transactions and compliance with the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, any provision of: (i) the organizational documents of Parent, Merger
Sub or any of Parent’s subsidiaries; (ii) any Contract to which Parent or any of its subsidiaries is party or by which any
of their respective properties or assets is bound; or (iii) subject to the filings and other matters referred to in Section 5.04(b),
any Judgment or Law applicable to Parent or any of its subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii), any such items that would not reasonably be expected to, individually or in the aggregate, have a Parent
Material Adverse Effect.
(b) No
Consent of, or registration, declaration or filing with, or permit from, any Governmental Entity is required to be obtained or made by
or with respect to Parent or any of its subsidiaries in connection with the execution, delivery and performance of this Agreement or the
CVR Agreement or the consummation of the Transactions, other than: (i) the filing with the SEC of (A) the Offer Documents and
(B) such reports under the Exchange Act, as may be required in connection with this Agreement, the CVR Agreement, the Offer, the
Merger and the other Transactions; (ii) the filing of the Certificate of Merger with the secretary of the State of Delaware; (iii) compliance
with the rules and regulations of any national security exchange on which securities of Parent or the Company are listed; and (iv) such
other items that the failure of which to obtain or make would not reasonably be expected to, individually or in the aggregate, have a
Parent Material Adverse Effect.
Section 5.05 Information
Supplied. None of the information supplied or to be supplied by or on behalf of Parent or Merger Sub for inclusion or incorporation
by reference in the Offer Documents or the Schedule 14D-9 will, at the time such document is filed with the SEC, at any time it is amended
or supplemented or at the time it is first published, sent or given to the Company Stockholders, contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are
made, not misleading. The Offer Documents will comply as to form in all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder, except that no representation or warranty is made by Parent or Merger Sub with respect to
statements included or incorporated by reference therein based on information supplied by or on behalf of the Company for inclusion or
incorporation by reference therein.
Section 5.06 Brokers.
No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s
or other similar fee or commission in connection with the Offer, the Merger and the other Transactions based upon arrangements made by
or on behalf of Parent or any of its Affiliates, directors, officers or employees.
Section 5.07 Litigation.
There is no Proceeding pending or, to the knowledge of Parent, threatened against Parent or any subsidiary of Parent that would reasonably
be expected to, individually or in the aggregate, have a Parent Material Adverse Effect, nor is there any Judgment outstanding against
Parent or any subsidiary of Parent that would reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse
Effect.
Section 5.08 Ownership
of the Company Common Stock. Neither Parent nor Merger Sub is, nor at any time for the past three (3) years has been, an “interested
stockholder” of the Company as defined in Section 203 of the DGCL. As of the date hereof, the Guarantor, Parent or a subsidiary
of Parent beneficially own 1,345,413 shares of the Company Common Stock and none of the Guarantor, Parent or a subsidiary of Parent:
(i) owns (as such term is defined in Section 203 of the DGCL), directly or indirectly, any other shares of the Company Common
Stock or other securities convertible into, exchangeable for, or exercisable for shares of the Company Common Stock or any securities
of any subsidiary of the Company; or (ii) has any rights to acquire any shares of the Company Common Stock except pursuant to this
Agreement. Parent, each of its Subsidiaries and the Guarantor are affiliates of Merger Sub as such term is defined in section 251(h) of
the DGCL.
Section 5.09 Guaranty.
Concurrently with the execution of this Agreement, Guarantor has delivered to the Company a true, complete and correct copy of the executed
Guaranty. As of the Agreement Date, the Guaranty is in full force and effect and constitutes the valid, binding and enforceable obligation
of Guarantor in favor of the Company and the CVR holders, enforceable by the Company and the CVR holders in accordance with its terms,
and Guarantor is not in default of or breach under any of the terms or conditions of the Guaranty, and no event has occurred that, with
or without notice, lapse of time or both, would or would reasonably be expected to constitute a default of Guarantor under the Guaranty.
Section 5.10 Sufficient
Funds. Parent and Merger Sub have (or have available to them), and will have as of the Offer Closing Time and Effective Time, sufficient
cash available to pay all amounts to be paid by Parent and Merger Sub in connection with this Agreement and the Merger Transactions,
including Parent’s and Merger Sub’s costs and expenses and the aggregate Offer Price and Merger Consideration on the terms
and conditions contained in this agreement, and there is not, nor will there be, any restriction on the use of such cash or cash equivalents
for such purpose. In no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any of their
respective Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.
Section 5.11 Competing
Businesses. None of Parent or any of its Affiliates owns any controlling interest in any person that: (i) derives a portion
of its revenues from products; or (ii) is developing products in the same markets in which Parent or Merger Sub operate that would
reasonably be expected to have an adverse effect on the ability of Parent to consummate the Merger and the Transactions in a timely manner
in accordance with the terms hereof.
Section 5.12 No
Foreign Person. Neither Parent nor Merger Sub is a foreign person, as defined in 31 C.F.R. § 800.224. Each of Buyer and Merger
Sub further represent that the transaction contemplated by this Agreement will not result in foreign control (as defined in 31 C.F.R.
§ 800.208) of the Company, and does not constitute direct or indirect investment in the Company by any foreign person that affords
the foreign person with any of the access, rights, or involvement contemplated under 31 C.F.R. § 800.211(b).
Article VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.01 Conduct
of Business of the Company. From the Agreement Date to the earlier of the Offer Closing Time and the termination of this Agreement
in accordance with its terms (the “Pre-Closing Period”), except as consented to in writing in advance by Parent
(which consent shall not be unreasonably withheld, delayed or conditioned) or as otherwise specifically required by this Agreement or
expressly required by Law, the Company shall use commercially reasonable efforts to carry on its business in the ordinary course of business.
In addition, except as set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly and specifically
permitted or required by this Agreement or required by applicable Law, during the Pre-Closing Period, neither the Company nor its subsidiaries
shall do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed
or conditioned):
(a) (i) enter
into any new line of business or enter into any agreement, arrangement or commitment that is in excess of $20,000 (individually or in
the aggregate) or materially limits or otherwise restricts the Company or its affiliates, including, following the Merger Closing, Parent
and its affiliates (other than in the case of Parent and its affiliates, due to the operation of Parent’s or its affiliates’
own Contracts), from time to time engaging or competing in any line of business or in any geographic area; or (ii) otherwise enter
into any agreements, arrangements or commitments in excess of $20,000 (individually or in the aggregate) or imposing material restrictions
on its assets, operations or business;
(b) (i) declare,
set aside, establish a record date in respect of, accrue or pay any dividends on, or make any other distributions (whether in cash, stock,
equity securities or property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock
or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
or (iii) repurchase, redeem, offer to redeem or otherwise acquire, directly or indirectly any shares of capital stock of the Company
or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire any such shares
of capital stock, except for (A) acquisitions of shares of the Company Common Stock in connection with the surrender of shares of
the Company Common Stock by holders of Company Stock Options and Company Restricted Stock Units outstanding on the Agreement Date, in
the case of Company Stock Options, in order to pay the exercise price of Company Stock Options, (B) the withholding of shares of
the Company Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plans outstanding on
the Agreement Date, and (C) the acquisition by the Company of Company Stock Options and Company Restricted Stock Units in connection
with the forfeiture of such awards, in each case, in accordance with their terms;
(c) issue,
grant, deliver, sell, authorize, pledge or otherwise encumber any shares of its capital stock or options, warrants, convertible or exchangeable
securities, stock-based performance units or other rights to acquire such shares, any Voting Company Debt or any other rights that give
any person the right to receive any economic interest of any nature accruing to the holders of the Company Common Stock, other than the
Company Restricted Stock Units or the issuance of Company Common Stock upon the vesting of Company Restricted Stock Units, and issuances
of the Company Common Stock upon the exercise of Company Stock Options in accordance with their terms;
(d) amend
its certificate of incorporation (except to reflect the reverse stock split that is described in the Company’s proxy statement dated
April 24, 2025), the Company Bylaws or other comparable organizational documents (except for immaterial or ministerial amendments);
(e) form
any subsidiary or acquire or agree to acquire, directly or indirectly, in a single transaction or a series of related transactions, whether
by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any
other manner, any assets outside of the ordinary course of business, any business or any corporation, partnership, limited liability company,
joint venture, association or other business organization or division thereof or any other Person;
(f) except
as required pursuant to the terms of any Company Benefit Plan as in effect on the Agreement Date: (i) adopt, enter into, establish,
terminate, amend or modify any collective bargaining agreement, Company Benefit Plan (or plan or arrangement that would be a Company Benefit
Plan if in effect on the Agreement Date); (ii) grant to any director, employee or individual service provider of the Company any
increase in base compensation; (iii) grant to any director, employee or individual service provider of the Company any increase in
severance or termination pay; (iv) pay or award, or commit to pay or award, any bonuses or incentive or equity compensation; (v) enter
into any employment, retention, consulting, change in control, severance or termination agreement with any director, employee or individual
service provider of the Company; (vi) take any action to vest or accelerate any rights or benefits under any Company Benefit Plan,
or the funding of any payments or benefits under any Company Benefit Plan; or (vii) hire or terminate (other than for cause or the
termination of non-officer employees) the employment or service of any employee or individual service provider;
(g) make
any change in accounting methods, principles or practices, except as may be required: (i) by GAAP (or any authoritative interpretation
thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization;
or (ii) by Law, including Regulation S-X promulgated under the Securities Act, in each case, as agreed to by the Company’s
independent public accountants;
(h) sell,
lease (as lessor), license or otherwise transfer (including through any “spin-off”), or pledge, encumber or otherwise subject
to any Lien (other than a Permitted Lien), any properties or assets (including Intellectual Property) except: (i) sales or other
dispositions of inventory and excess or obsolete properties or assets in the ordinary course of business; or (ii) pursuant to Contracts
to which the Company is a party made available to Parent and in effect prior to the Agreement Date;
(i) sell,
assign, lease, license, transfer, pledge, encumber or otherwise dispose of, permit to lapse or abandon, or, in the case of Trade Secrets,
disclose to any third party: (i) any Trade Secret included in any Intellectual Property owned by the Company; or (ii) any Intellectual
Property owned by the Company;
(j) (i) incur
or modify the terms of (including by extending the maturity date thereof) any indebtedness for borrowed money or guarantee any such indebtedness
of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee
any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition
of another Person or enter into any arrangement having the economic effect of any of the foregoing; or (ii) make any loans, advances
or capital contributions to, or investments in, any other Person;
(k) make
or agree to make any capital expenditures;
(l) commence
any Proceeding or pay, discharge, settle, compromise or satisfy: (i) any pending or threatened claims, liabilities or obligations
relating to a Proceeding (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any such payment, discharge,
settlement, compromise or satisfaction of a claim solely for money damages in the ordinary course of business in an amount not to exceed
$20,000 per payment, discharge, settlement, compromise or satisfaction or $20,000 in the aggregate for all such payments, discharges,
settlements, compromises or satisfactions, provided such amounts are taken into account in the calculation of Closing Net Cash; or (ii) any
litigation, arbitration, proceeding or dispute that relates to the Transactions (which shall be governed exclusively by Section 7.07
hereof);
(m) make,
change or revoke any material Tax election, change any material annual Tax accounting period or adopt or change any material method of
Tax accounting, file any amended Tax Return, fail to timely file any material Tax Return required to be filed (taking into account extensions
obtained in the ordinary course of business) or pay any material Tax that is due or payable, enter into any closing agreement within the
meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law), settle or compromise any material
Tax liability or refund, or consent to any extension or waiver of any limitation period with respect to any claim or assessment for material
Taxes;
(n) amend,
cancel or terminate any insurance policy naming the Company or its subsidiaries as an insured, a beneficiary or a loss payable payee without
obtaining comparable substitute insurance coverage;
(o) adopt
a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization (other than the Merger);
(p) except
in the ordinary course of business or in connection with any transaction to the extent specifically permitted by any other subclause of
this Section 6.01, enter into, terminate or modify in any respect, or expressly release any rights under, any Material Contract
or any Contract that, if existing on the Agreement Date, would have been a Material Contract;
(q) renew
or enter into any agreement containing a non-compete, exclusivity, non-solicitation or similar clause that would restrict or limit, in
any material respect, the operations of the Company or any of its subsidiaries; or
(r) authorize,
commit or agree to take any of the foregoing actions.
Section 6.02 No
Solicitation.
(a) The
Company shall not, and the Company shall cause its directors and officers not to, and shall use its reasonable best efforts to cause its
Representatives not to: (i) directly or indirectly solicit, initiate or knowingly encourage or knowingly facilitate (including by
way of providing information) any Acquisition Inquiries, proposals or offers, or the making of any submission or announcement of any Acquisition
Inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Takeover Proposal; or (ii) directly
or indirectly engage in, enter into or participate in any discussions or negotiations with any Person regarding, furnish to any Person
any information or afford access to the business, properties, assets, books or records of the Company to, or take any other action to
assist or knowingly facilitate or knowingly encourage any effort by any Person, in each case, in connection with or in response to any
Acquisition Inquiry, offer or proposal that constitutes, or would reasonably be expected to lead to, any Company Takeover Proposal other
than, to refer the inquiring person to this Section 6.02 and to limit its communication exclusively to such referral or to
clarify the terms thereof in writing. The Company shall, and shall cause its directors and officers to, and shall use its reasonable best
efforts to cause its Representatives to, immediately: (i) cease all solicitations, discussions and negotiations regarding any Acquisition
Inquiry, proposal or offer pending on the Agreement Date that constitutes, or would reasonably be expected to lead to, a Company Takeover
Proposal; (ii) request the prompt return or destruction of all confidential information previously furnished to any Person within
the last six (6) months for the purposes of evaluating a possible Company Takeover Proposal; and (iii) terminate access to any
physical or electronic data rooms relating to a possible Company Takeover Proposal. Notwithstanding anything to the contrary contained
in the foregoing or any other provision of this Agreement, at any time during the Pre-Closing Period, in response to a Company Takeover
Proposal made after the Agreement Date that did not result from a material breach of this Section 6.02(a), in the event that
the Company Board determines, in good faith, after consultation with outside counsel and an independent financial advisor, that such Company
Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Company Proposal (a “Qualifying Company
Takeover Proposal”), the Company may (A) enter into an Acceptable Confidentiality Agreement with any Person or group
of Persons making such Qualifying Company Takeover Proposal, (B) furnish information with respect to the Company to the Person or
group of Persons making such Qualifying Company Takeover Proposal and its or their Representatives pursuant to an Acceptable Confidentiality
Agreement so long as the Company concurrently or promptly thereafter provides Parent, in accordance with the terms of the Confidentiality
Agreement, any material non-public information with respect to the Company furnished to such other Person or group of Persons that was
not previously furnished to Parent and (C) participate in discussions or negotiations with such Person or group of Persons and its
or their Representatives regarding such Qualifying Company Takeover Proposal (including soliciting the making of a revised Qualifying
Company Takeover Proposal); provided that the Company may only take the actions described in clauses (A), (B) or (C) above
if the Company Board determines, in good faith, after consultation with outside counsel, that the failure to take any such action would
be inconsistent with its fiduciary duties under applicable Law. The Company shall not, and shall cause its Representatives not to, release
any Person from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in
any agreement to which the Company is a party; provided that, if the Company Board in good faith, after consultation with its outside
counsel that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, the Company may waive
any such standstill provision solely to the extent necessary to permit the applicable Person (if such Person has not been solicited in
breach of this Section 6.02) to make, on a confidential basis to, a Company Takeover Proposal, conditioned upon such Person
agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding the material terms of
any such Company Takeover Proposal) in accordance with, and otherwise complying with, this Section 6.02. Wherever the term
“group” is used in this Section 6.02(a), it is used as defined in Rule 13d-5 under the Exchange
Act.
(b) Neither
the Company Board nor any committee thereof shall: (i) (A) withdraw, qualify or modify in a manner adverse to Parent or Merger
Sub, or propose publicly to withdraw, qualify or modify in a manner adverse to Parent or Merger Sub, or the Company Board Recommendation
or resolve or agree to take any such action, (B) adopt, endorse, approve or recommend, or propose publicly to adopt, endorse, approve
or recommend, any Company Takeover Proposal or resolve or agree to take any such action, (C) publicly make any recommendation in
connection with a tender offer or exchange offer (other than the Offer) other than a recommendation against such offer or (D) fail
to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company Stockholders (any action described
in this clause (i) being referred to in this Agreement as an “Adverse Recommendation Change”; provided
that the delivery of the Company Notice or decision to deliver the Company Notice shall not be an Adverse Recommendation Change); or (ii) approve
or recommend, or publicly propose to approve or recommend, or authorize, cause or permit the Company to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement, option agreement, merger agreement, joint venture agreement,
partnership agreement or other agreement relating to or that would reasonably be expected to lead to, any Company Takeover Proposal (other
than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.02(a)), or resolve, agree or publicly
propose to take any such action. Notwithstanding anything to contrary in the foregoing or any other provision of this Agreement: (x) the
Company Board may, in response to an Intervening Event, take any of the actions specified in clause (A) or (D) of the definition
of Adverse Recommendation Change (an “Intervening Event Adverse Recommendation Change”) if the Company Board
determines, in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its
fiduciary duties under applicable Law; and (y) if the Company Board receives a Superior Company Proposal that did not result from
a material breach of this Section 6.02, the Company may make an Adverse Recommendation Change, and may terminate this Agreement
pursuant to Section 9.01(h) in order to enter into a definitive agreement with respect to the Superior Company Proposal;
provided that, prior to so making an Intervening Event Adverse Recommendation Change or an Adverse Recommendation Change, or so
terminating this Agreement pursuant to Section 9.01(h), (1) the Company Board shall have given Parent at least four (4) Business
Days’ prior written notice (a “Company Notice”) of its intention to take such action and a description
of the reasons for taking such action (which Company Notice, in respect of a Superior Company Proposal, shall specify the identity of
the Person who made such Superior Company Proposal and subject to any restrictions pursuant to any confidentiality agreement in effect,
the material terms and conditions of such Superior Company Proposal and attach the most current version of the relevant transaction agreement
or, in respect of an Intervening Event, shall include a reasonably detailed description of the underlying facts giving rise to such action),
(2) the Company shall have negotiated, and shall have caused its Representatives to negotiate, in good faith, with Parent during
such notice period, to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement in such a manner
that would eliminate the need for taking such action (and, in respect of a Superior Company Proposal, would cause such Superior Company
Proposal to no longer constitute a Superior Company Proposal), (3) following the end of such notice period, the Company Board shall
have considered in good faith any revisions to this Agreement irrevocably committed to in writing by Parent, and shall have determined
in good faith, after consultation with outside counsel, that failure to effect such Adverse Recommendation Change or Intervening Event
Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law and, with respect to a Superior Company
Proposal, that such Superior Company Proposal continues to constitute a Superior Company Proposal and (4) in the event of any change
to any of the financial terms (including the form and amount of consideration) of such Superior Company Proposal, or in the event of any
material change in any event, occurrence or facts relating to such Intervening Event, the Company shall, in each case, deliver to Parent
an additional Company Notice consistent with that described in clause (1) of this proviso and a renewed notice period under clause
(1) of this proviso shall commence (except that the four (4)-Business Day notice period referred to in clause (1) of this proviso
shall instead be equal to two (2) Business Days) during which time the Company shall be required to comply with the requirements
of this Section 6.02(b) anew with respect to such additional Company Notice, including clauses (1) through (4) of
this proviso.
(c) Nothing
contained in this Section 6.02 or elsewhere in this Agreement shall prohibit the Company from: (i) taking and disclosing
to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar
communication to stockholders), including making any “stop, look and listen” communication to the stockholders of the Company;
or (ii) making any disclosure to its stockholders if the Company Board determines, in good faith, after consultation with outside
counsel, that the failure to take such action would be inconsistent with its fiduciary duties or applicable Law; provided that
any such action that would otherwise constitute an Adverse Recommendation Change shall be made only in compliance with Section 6.02(b) (it
being understood that: (A) any “stop, look and listen” letter or similar communication limited to the information described
in Rule 14d-9(f) under the Exchange Act and (B) any disclosure of information to the Company Stockholders that describes
the Company’s receipt of a Company Takeover Proposal and the operation of this Agreement with respect thereto and reaffirms the
Company Board Recommendation shall not constitute an Adverse Recommendation Change).
(d) Except
to the extent the Company is prohibited from giving Parent such notice by any confidentiality agreement in effect as of the date hereof,
in addition to the requirements set forth in paragraphs (a) and (b) of this Section 6.02, the Company shall, as
promptly as reasonably practicable and in any event within one (1) Business Day after receipt thereof, advise Parent in writing of:
(i) any Company Takeover Proposal or any request for information or Acquisition Inquiry, proposal or offer that the Company Board
in good faith believes would reasonably be expected to lead to a Company Takeover Proposal; and (ii) the material terms and conditions
of such Company Takeover Proposal or Acquisition Inquiry, proposal or offer (including, if applicable, copies of any written requests,
proposals or offers, including proposed term sheets and agreements relating thereto, and any subsequent amendments or modifications thereto)
and the identity of the Person making any such Company Takeover Proposal or Acquisition Inquiry, proposal or offer. Commencing upon the
provision of any notice referred to in the previous sentence, the Company and its Representatives shall keep Parent informed on a reasonably
prompt basis as to any material developments with respect to any such Company Takeover Proposal or Acquisition Inquiry, proposal or offer
(and any subsequent material amendments or modifications thereto), and shall provide Parent with a copy of any written correspondence,
documents or agreements delivered to or by the Company or its Representatives that contain any material amendments thereto or any material
change to the scope or material terms or conditions thereof (or, if not delivered in writing, a summary of any such material amendments
or material changes).
Article VII
ADDITIONAL AGREEMENTS
Section 7.01 Access
to Information; Confidentiality. Except if prohibited by any applicable Law, the Company shall afford to Parent and to Parent’s
Representatives, reasonable access during normal business hours (under the supervision of appropriate personnel and in a manner that
does not unreasonably interfere with the normal operation of the business of the Company) during the period prior to the earlier of the
Effective Time or the termination of this Agreement to its properties, books and records, Contracts and personnel, and, during such period,
the Company shall furnish, as promptly as reasonably practicable, to Parent such information concerning its business, properties and
personnel as Parent or Parent’s Representatives may reasonably request; provided that any such access shall be afforded
and any such information shall be furnished at Parent’s expense. Notwithstanding the immediately preceding sentence, the Company
shall not be required to afford access or furnish information to the extent: (i) such information is subject to the terms of a confidentiality
agreement with a third party entered into prior to the Agreement Date; (ii) such information relates to the applicable portions
of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board
discussed (or is information otherwise related to) (A) the Transactions or any similar transaction involving the sale of the Company,
or a material portion of its assets, to, the license of a material portion of the Company’s assets to, or combination of the Company
with, any other Person, (B) any Company Takeover Proposal or (C) any Intervening Event; or (iii) the Company determines
in good faith after consulting with counsel that affording such access or furnishing such information would jeopardize the attorney-client
privilege of the Company, violate applicable Law or result in antitrust risk for the Company; provided that the Company will use
its reasonable efforts to obtain any required consents for the disclosure of such information and take such other reasonable action (including
entering into a joint defense agreement or similar arrangement to avoid loss of attorney-client privilege) with respect to such information
as is necessary to permit disclosure to Parent without jeopardizing such attorney-client privilege or violating applicable Law, as applicable.
All information exchanged pursuant to this Section 7.01 shall be subject to the confidentiality letter agreement dated April 29,
2025 between the Company and Tang Capital Management, LLC, the sole manager of Parent and the general partner of Guarantor, as amended
(the “Confidentiality Agreement”).
Section 7.02 Reasonable
Best Efforts; Notification; Regulatory Filings. Upon the terms and subject to the conditions set forth in this Agreement, each of
the parties hereto shall, and shall cause their respective subsidiaries to, use its reasonable best efforts to promptly take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things
necessary, proper or advisable to consummate and make effective, as promptly as reasonably practicable and in any event prior to the
Outside Date, the Offer, the Merger and the other Transactions, including: (i) causing each of the Offer Conditions and each of
the conditions to the Merger set forth in Article VIII to be satisfied, in each case as promptly as reasonably practicable
after the Agreement Date; (ii) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the
making of all necessary registrations, declarations and filings with, and the taking of all reasonable steps as may be necessary to avoid
a Proceeding by, any Governmental Entity with respect to this Agreement or the Transactions; (iii) the defending or contesting of
any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking
to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iv) the
execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of
this Agreement. In addition and without limiting the foregoing, the Company, the Company Board shall (A) take all action necessary
to ensure that no restrictions on business combinations of any Takeover Law or similar statute or regulation is or becomes applicable
to any Transaction or this Agreement and (B) if the restrictions on business combinations of any Takeover Law or similar statute
or regulation becomes applicable to any Transaction or this Agreement, use its reasonable best efforts to take all action necessary to
ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise
to minimize the effect of such statute or regulation on the Transactions and this Agreement.
Section 7.03 Indemnification.
(a) All
rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights
to advancement of expenses) now existing in favor of any Person who is or prior to the Effective Time becomes, or has been at any time
prior to the Agreement Date, a director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan)
of the Company or its predecessors (each, an “Indemnified Party”) as provided in the Company Charter, the Company
Bylaws or any indemnification agreement between such Indemnified Party and the Company that is in effect as of the Agreement Date and
that has been made available to Parent: (i) shall be assumed by the Surviving Corporation, without further action, at the Effective
Time; (ii) shall survive the Merger; (iii) shall continue in full force and effect in accordance with their terms with respect
to any claims against any such Indemnified Party arising out of such acts or omissions; and (iv) for a period of six (6) years
following the Effective Time, shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right
thereunder of any such Indemnified Party. Parent shall ensure that the Surviving Corporation shall be bound thereby to the fullest extent
available under the DGCL or other applicable Law for a period of six (6) years from the Effective Time, and any claim made pursuant
to such rights within such six year period shall continue to be subject to this Section 7.03(a) and the rights provided
under this Section 7.03(a) until full and final disposition of such claim. Parent shall cause the Surviving Corporation
to perform its obligations under this Section 7.03(a).
(b) Without
limiting Section 7.03(a) or any rights of any Indemnified Party pursuant to any indemnification agreement that has been
made available to Parent, from and after the Offer Closing Time, in the event of any threatened or actual Proceeding, whether civil, criminal
or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to: (i) the fact that an Indemnified
Party is or was a director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company,
any of its former subsidiaries or any of their respective predecessors; or (ii) this Agreement or any of the Transactions, whether
in any case asserted or arising before or after the Effective Time, the Surviving Corporation shall indemnify and hold harmless, as and
to the fullest extent permitted by applicable Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs,
expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any Proceeding to each Indemnified
Party to the fullest extent permitted by applicable Law upon receipt of any undertaking required by applicable Law, provided however any
such undertaking shall be unsecured and made without reference to the Indemnified Party’s ability to repay such advances or ultimate
entitlement to indemnification, and no other form of undertaking shall be required), judgments, fines and amounts paid in settlement of
or in connection with any such threatened or actual Proceeding. Parent and the Surviving Corporation shall cooperate with an Indemnified
Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder; provided, that Parent
and the Surviving Corporation shall be entitled to assume the defense and appoint lead counsel for such defense, except an Indemnified
Party shall be entitled to handle the defense of any matter: (i) as provided in an indemnification agreement set forth in the Company
Disclosure Letter or (ii) with respect to any threatened or actual Proceeding in existence as of the Agreement Date. The Surviving
Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Proceeding for which indemnification
could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of
such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents in advance in writing
to such settlement, compromise or consent. The Surviving Corporation’s obligations under this Section 7.03(b) shall
continue in full force and effect for the period beginning upon the Offer Closing Time and ending six (6) years from the Effective
Time; provided that all rights to indemnification in respect of any Proceeding asserted or made within such period shall continue
until the final disposition of such Proceeding. Parent shall cause the Surviving Corporation to perform its obligations under this Section 7.03(b).
(c) At
or prior to the Effective Time, the Company shall obtain and fully pay the premium for “tail” directors’ and officers’
liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time (including for acts or omissions
occurring in connection with this Agreement or any of the Transactions) for the period beginning upon the Offer Closing Time and ending
six (6) years from the Effective Time (the “D&O Tail Policies”), covering each Indemnified Party and
containing terms (including with respect to coverage and amounts) and conditions (including with respect to deductibles and exclusions)
that are in the aggregate, no less favorable to any Indemnified Party than those of the Company’s directors’ and officers’
liability insurance policies in effect on the Agreement Date (the “Existing D&O Policies”); provided
that the maximum aggregate annual premium for such “tail” insurance policies shall not exceed 200% of the aggregate annual
premium payable by the Company for coverage pursuant to its most recent renewal under the Existing D&O Policies (the “Maximum
Amount”) and the full cost of such “tail” insurance policies shall be included as Transaction Expenses. If such
“tail” insurance policies have been obtained by the Company, Parent shall cause such “tail” insurance policies
to be maintained in full force and effect, for their full term, and cause all obligations thereunder to be honored by it and the Surviving
Corporation. In the event the Company does not obtain such “tail” insurance policies, then, for the period beginning upon
the Offer Closing Time and ending six (6) years from the Effective Time, Parent shall either purchase such six (6) year “tail”
insurance policies or Parent shall maintain in effect the Existing D&O Policies in respect of acts or omissions occurring at or prior
to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation
of the Transactions) for a period of six (6) years from the Effective Time; provided that neither Parent nor the Surviving
Corporation shall be required to pay an aggregate annual premium for such insurance policies in excess of the Maximum Amount; provided,
further, that if the annual premium of such insurance coverage exceeds such Maximum Amount, Parent or the Surviving Corporation
shall be obligated to obtain the maximum amount of coverage available for the Maximum Amount.
(d) In
the event that: (i) Parent or the Surviving Corporation or any of their respective successors or assigns (A) consolidates with
or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (B) transfers
or conveys all or a substantial portion of their respective properties or other assets to any Person; or (ii) Parent or any of its
successors or assigns dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision to be made
so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 7.03.
(e) From
and after the Offer Closing Time, the obligations of Parent and the Surviving Corporation under this Section 7.03 shall not
be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.03 applies
without the consent of such affected Indemnified Party. The provisions of this Section 7.03 are, from and after the Offer
Closing Time, intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, their heirs and their representatives,
and are in addition to, and not in substitution for, any other rights to which each Indemnified Party is entitled, whether pursuant to
Law, Contract or otherwise. From and after the Effective Time, Parent shall use commercially reasonable efforts to ensure the prompt payment
of the obligations of the Surviving Corporation and its subsidiaries under this Section 7.03.
(f) Parent
shall pay all reasonable and documented expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified
Party in enforcing the indemnity and other obligations provided in this Section 7.03 to the fullest extent available under
the DGCL or other applicable Law.
Section 7.04 Fees
and Expenses. Except as set forth in Section 7.03, Section 7.06 and Section 9.03, all fees and
expenses incurred in connection with this Agreement, the Offer, the Merger and the other Transactions shall be paid by the party incurring
such fees or expenses, whether or not the Offer or the Merger is consummated.
Section 7.05 Public
Announcements. Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall consult with each other before issuing,
and provide each other the opportunity to review and comment upon (with such comments to be considered in good faith), any press release
or other public statements with respect to the Offer, the Merger and the other Transactions, and shall not issue any such press release
or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations
pursuant to any listing agreement with any national or foreign securities exchange; provided that the restrictions set forth in
this Section 7.05 shall not apply to any release, announcement or disclosure made or proposed to be made by the Company with
respect to a Company Takeover Proposal, Superior Company Proposal, Intervening Event, Adverse Recommendation Change or Intervening
Event Adverse Recommendation Change that does not violate Section 6.02. The parties hereto agree that any press release to
be issued with respect to the Transactions shall be in the form heretofore agreed to by the parties hereto.
Section 7.06 Transfer
Taxes. Except as provided in Section 3.09(b), all stock transfer, real estate transfer, documentary, stamp, recording
and other similar Taxes (including interest, penalties and additions to any such Taxes) (“Transfer Taxes”)
imposed on the Transactions shall be paid by Parent or Merger Sub when due, and the Company shall cooperate with Merger Sub and Parent
in preparing, executing and filing any Tax Returns with respect to such Transfer Taxes.
Section 7.07 Stockholder
Litigation. During the Pre-Closing Period, the Company shall provide Parent an opportunity to review and to propose comments to all
material filings or responses to be made by the Company in connection with any Proceedings commenced, or to the knowledge of the Company,
threatened in writing, by or on behalf of one or more stockholders of the Company, against the Company and its directors relating to
any Transaction, and the Company shall give reasonable and good faith consideration to any comments proposed by Parent. In no event shall
the Company enter into, agree to or disclose any settlement with respect to such Proceedings without Parent’s consent, such consent
not to be unreasonably withheld, delayed or conditioned. The Company shall notify Parent promptly of the commencement or written threat
of any Proceedings of which it has received notice or become aware and shall keep Parent promptly and reasonably informed regarding any
such Proceedings.
Section 7.08 Rule 14d-10
Matters. Prior to the scheduled expiration of the Offer, the Company (acting through the Company Board and the compensation committee
of the Company Board) shall use reasonable best efforts to cause to be exempt under Rule 14d-10(d) promulgated under the Exchange
Act any employment compensation, severance or other employee benefit arrangement that has been, or after the Agreement Date will be,
entered into by the Company with current or future directors, officers or employees of the Company.
Section 7.09 Rule 16b-3
Matters. Prior to the Effective Time, Parent shall, and the Company may, take all steps as may be required to cause any dispositions
or cancellations or deemed dispositions or cancellations of Company equity securities (including derivative securities) in connection
with this Agreement or the Transactions by each individual who is a director or officer of the Company subject to Section 16 of
the Exchange Act to be exempt under Rule 16b-3 under the Exchange Act.
Section 7.10 Merger
Sub and Surviving Corporation Compliance. Parent shall cause Merger Sub or the Surviving Corporation, as applicable, to comply with
all of its respective obligations under this Agreement and Merger Sub shall not engage in any activities of any nature except as provided
in or contemplated by this Agreement.
Section 7.11 Stock
Exchange De-listing. The Surviving Corporation shall cause the Company’s securities to be de-listed from Nasdaq and de-registered
under the Exchange Act as promptly as practicable following the Effective Time and in any event no more than ten (10) days after
the Merger Closing Date.
Section 7.12 No
Control of Other Party’s Business. Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or
indirectly, the right to control or direct the Company’s operations prior to the Effective Time. Prior to the Effective Time, the
Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations,
subject to the provisions in Section 6.01.
Section 7.13 Anti-Takeover
Provisions. Each of Parent and the Company and the Company Board (and any committee empowered to take such action, if applicable)
will: (i) take all actions within their power to ensure that no Takeover Law is or becomes applicable to this Agreement, the Offer,
Offer Documents, the Merger or any of the transactions contemplated by this Agreement; and (ii) if any Takeover Law becomes applicable
to this Agreement, the Offer, Offer Documents, the Merger or any of the transactions contemplated by this Agreement, take all action
within their power to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly
as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the
Offer, the Merger and the other transactions contemplated by this Agreement.
Section 7.14 FIRPTA
Certificate. At the Merger Closing, the Company shall deliver to Parent a certificate pursuant to Treasury Regulations Sections 1.1445-2(c)(3) 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),
in each case, in form and substance reasonably acceptable to Parent.
Section 7.15 Efforts;
Regulatory Filings. Parent and the Company shall, and shall cause its Affiliates to, take any and all steps reasonably necessary
to obtain any required approvals, consents or clearances from, and avoid or eliminate each and every impediment under any Law that may
be asserted by, any governmental body or any other Person so as to enable the parties hereto to expeditiously close the Merger.
Section 7.16 Information
Agent(a) . Not less than three (3) Business
Days before the commencement of the Offer, Parent shall select an information agent reasonably acceptable to the Company in connection
with the Offer for the purpose of answering any questions or requests for assistance in connection with the Offer (the “Information
Agent”), and such fees and costs shall be borne by Parent.
Article VIII
CONDITIONS PRECEDENT TO THE MERGER
Section 8.01 Conditions
to Each Party’s Obligation. The respective obligation of each party hereto to effect the Merger is subject to the satisfaction
or waiver on or prior to the Effective Time of the following conditions:
(a) No
Legal Restraints. No Judgment issued, or other legal restraint or prohibition imposed, in each case, by any Governmental Entity of
competent jurisdiction, or Law, in each case, (collectively, “Legal Restraints”) preventing or prohibiting the
consummation of the Merger shall be in effect.
(b) Consummation
of the Offer. Merger Sub shall have accepted for payment all shares of the Company Common Stock validly tendered and not properly
withdrawn pursuant to the Offer.
Section 8.02 Frustration
of Closing Conditions. No party may rely on the failure of any Offer Condition or any condition set forth in Section 8.01
to be satisfied if such failure was caused by the failure of such party to perform any of its obligations under this Agreement.
Article IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.01 Termination.
This Agreement may be terminated at any time prior to the Offer Closing Time, notwithstanding adoption of this Agreement by Parent as
sole stockholder of Merger Sub:
(a) by
mutual written consent of Parent, Merger Sub and the Company (in the case of the Company, upon approval of the Board);
(b) by
either Parent or the Company (in the case of the Company, upon approval of the Board):
(i) if
(A) the Offer Closing Time shall not have occurred on or before 11:59 p.m. Eastern Time on September 6, 2025 (the “Outside
Date”) or (B) the Offer shall have expired or been terminated in accordance with its terms and in accordance with this
Agreement without Merger Sub having purchased any shares of the Company Common Stock pursuant thereto; provided that the right
to terminate this Agreement pursuant to this Section 9.01(b)(i) shall not be available to any party hereto if the failure
of the Offer Closing Time to occur on or before the Outside Date (in the case of the foregoing clause (A)) or the failure of Merger Sub
to purchase any shares of the Company Common Stock pursuant to the Offer (in the case of the foregoing clause (B)) is primarily due to
a material breach of this Agreement by such party; or
(ii) if
any Legal Restraint permanently preventing or prohibiting the consummation of the Offer or the Merger shall be in effect and shall have
become final and non-appealable; provided that the right to terminate this Agreement pursuant to this Section 9.01(b)(ii) shall
not be available to any party hereto if such Legal Restraint is primarily due to such party’s failure to comply in all material
respects with its obligations under Section 7.02 in respect of any such Legal Restraint;
(c) by
Parent, if the Company breaches or fails to perform any of its representations, warranties or covenants contained in this Agreement, which
breach or failure to perform individually or in the aggregate with all such other breaches or failures to perform: (i) would result
in the failure of an Offer Condition; and (ii) cannot be or has not been cured prior to the earlier of (x) 30 days after the
giving of written notice to the Company of such breach or failure to perform and (y) the Outside Date; provided that Parent
and Merger Sub are not then in material breach of this Agreement;
(d) by
Parent if an Adverse Recommendation Change has occurred;
(e) by
Parent if a failure of the condition set forth in clause (vi) of Exhibit A has occurred;
(f) by
the Company, if: (i) Merger Sub fails to commence the Offer in violation of Section 2.01 (other than due to a violation
by the Company of its obligations under Section 2.02); (ii) Merger Sub shall have terminated the Offer prior to its expiration
date (as such expiration date may be extended in accordance with Section 2.01(a)), other than in accordance with this Agreement;
or (iii) all of the Offer Conditions have been satisfied or waived (other than those conditions that by their nature are to be satisfied
at the time Merger Sub consummates the Offer, but subject to such conditions being able to be satisfied or waived) as of immediately prior
to the expiration of the Offer and the Offer Closing Time shall not have occurred within five (5) Business Days following the expiration
of the Offer;
(g) by
the Company, if Parent or Merger Sub breaches or fails to perform any of its representations, warranties or covenants contained in this
Agreement, which breach or failure to perform: (i) had or would reasonably be expected to, individually or in the aggregate with
all such other breaches or failures to perform, result in a Parent Material Adverse Effect; and (ii) cannot be or has not been cured
prior to the earlier of (x) thirty (30) days after the giving of written notice to Parent or Merger Sub of such breach or failure
to perform and (y) the Outside Date; provided that the Company is not then in material breach of this Agreement; or
(h) by
the Company, if: (i) the Company Board authorizes the Company to enter into a definitive written agreement constituting a Superior
Company Proposal; (ii) the Company Board have complied in all material respects with their obligations under Section 6.02(b) in
respect of such Superior Company Proposal; and (iii) the Company has paid, or simultaneously with the termination of this Agreement
pays, the Company Termination Fee.
The party hereto desiring to terminate this Agreement
pursuant to this Section 9.01 (other than pursuant to Section 9.01(a)) shall give written notice of such termination
to each other party hereto and specify the applicable provision or provisions hereof pursuant to which such termination is being effected.
Section 9.02 Effect
of Termination. Except in the event of fraud or Willful Breach, in the event of termination of this Agreement by either the Company
or Parent as provided in Section 9.01, this Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent or Merger Sub, on the one hand, or the Company, on the other hand, the last sentence of Section 7.01,
this Section 9.02, Section 9.03 and Article X, and any definitions contained in this Agreement and
referred to but not contained in any such provisions, which provisions and definitions shall survive such termination. Without limiting
the generality of the foregoing, Parent and Merger Sub acknowledge and agree that any failure of Parent or Merger Sub to satisfy its
obligations to irrevocably accept for payment or pay for the shares of the Company Common Stock following satisfaction of the Offer Conditions,
and any failure of Parent to cause the Merger to be effective following the satisfaction of the conditions set forth in Article VIII,
will be deemed to constitute a Willful Breach of a covenant of this Agreement. In the event of any termination of this Agreement resulting
from a party’s fraud or Willful Breach by a party hereto of any representation, warranty or covenant set forth in this Agreement,
in which case such party shall be liable for each other party’s costs and expenses incurred in connection with enforcing this Agreement
by legal action against the first party for such Willful Breach to the extent such enforcement actions results in a judgment against
the first party (collectively “Enforcement Costs”). In the event of any termination of this Agreement as a
result of a Willful Breach for which equitable relief has been sought by the non-breaching party pursuant to this Agreement, and determined
by a court of competent jurisdiction not to be available, in determining damages the court may (but is not required to) grant damages
on behalf of the Company Stockholders to the Company (in the case of a Willful Breach by Parent) or of Parent (in the case of a Willful
Breach by the Company), in each case to the extent proven and awarded by a court of competent jurisdiction.
Section 9.03 Termination
Fees.
(a) The
Company shall pay to Parent a fee of $1,200,000 (the “Company Termination Fee”) if:
(i) the
Company terminates this Agreement pursuant to Section 9.01(h);
(ii) Parent
terminates this Agreement pursuant to Section 9.01(d);
(iii) (A) after
the Agreement Date, a bona fide Company Takeover Proposal is publicly proposed or announced or shall have become publicly known
or otherwise communicated to management of the Company or the Company Board, and such Company Takeover Proposal is not publicly withdrawn
or, if not publicly proposed or announced, communicated to the Company Board or management has been withdrawn: (x) in the case of
this Agreement being subsequently terminated pursuant to Section 9.01(b)(i), prior to the date that is four (4) Business
Days prior to the final expiration date of the Offer; or (y) in the case of this Agreement being subsequently terminated pursuant
to Section 9.01(c), prior to the time of the breach giving rise to such termination, (B) this Agreement is terminated
by: (x) either Parent or the Company pursuant to Section 9.01(b)(i) (but in the case of a termination by the Company,
only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 9.01(b)(i));
or (y) Parent pursuant to Section 9.01(c) as a result of a breach by the Company of a covenant in this Agreement,
and (C) within twelve (12) months after such termination, the Company consummates any Company Takeover Proposal or the Company enters
into a definitive agreement with respect to any Company Takeover Proposal that is subsequently consummated.
For purposes of this Section 9.03(a),
the term “Company Takeover Proposal” shall have the meaning set forth in the definition of Company Takeover
Proposal contained in Section 1.01 except that all references to 20% shall be deemed references to 50%. Any fee due under
this Section 9.03(a) shall be paid by wire transfer of same-day funds to an account designated by Parent, (1) in
the case of clause (i), prior to or simultaneously with such termination of this Agreement, (2) in the case of clause (ii), within
two (2) Business Days after the date of such termination of this Agreement and (3) in the case of clause (iii), within two (2) Business
Days after the consummation of such a transaction. The parties hereto acknowledge and agree that in no event shall the Company be required
to pay the Company Termination Fee or the Expense Reimbursement Payment on more than one occasion, whether or not the Company Termination
Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events.
(b) The
Company shall pay to Parent an expense reimbursement payment equal to the reasonable and documented out-of-pocket fees and expenses
incurred by or on behalf of Parent or its Affiliates in connection with the transactions contemplated by this Agreement and
the CVR Agreement up to a maximum of $500,000 (the “Expense
Reimbursement Payment”) if Parent terminates this Agreement pursuant to Section 9.01(e)
(c) Acceptance
by Parent of the Company Termination Fee due under Section 9.03(a)(i) shall constitute acceptance by Parent of the validity
of any termination of this Agreement under Section 9.01(h). In the event the Company Termination Fee or the Expense Reimbursement
Payment described in this Section 9.03 is paid to Parent in accordance with Section 9.03(a) or Section 9.03(b),
such Company Termination Fee or Expense Reimbursement Payment shall be deemed to be liquidated damages for any and all losses or damages
suffered or incurred by Parent or Merger Sub and constitute their sole and exclusive remedy of Parent and Merger Sub against the Company
and its current, former or future stockholders and Representatives for any loss suffered as a result of the failure of the Transactions
to be consummated, and none of the Company and its current, former or future stockholders or Representatives shall have any further liability
or obligation relating to or arising out of this Agreement or the Transactions; provided that nothing contained in this Agreement
shall relieve any party hereto from liability for any Willful Breach of this Agreement. If the Company fails to pay in a timely manner
the Company Termination Fee or the Expense Reimbursement Payment due pursuant to Section 9.03(a) or Section 9.03(b) and,
in order to obtain such payment, Parent makes a claim that results in a judgment for the Company Termination Fee or the Expense Reimbursement
Payment, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in
connection with such suit, together with interest on the Company Termination Fee or the Expense Reimbursement Payment (as applicable)
at the prime rate of Citibank, N.A. in effect from time to time from the date such payment was required to be made hereunder through the
date such payment was actually received.
(d) Each
of the parties hereto acknowledges that the agreements contained in this Section 9.03 are an integral part of the Transactions
and that, without these agreements, the parties hereto would not enter into this Agreement.
Section 9.04 Amendment;
Extension; Waiver.
(a) This
Agreement may be amended by the parties hereto at any time prior to the Offer Closing Time. At any time prior to the Offer Closing Time,
the parties hereto may: (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto;
(ii) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant
to this Agreement; or (iii) waive compliance with any of the agreements or conditions contained in this Agreement (subject to Section 2.01).
This Agreement may not be amended or supplemented after the Offer Closing Time.
(b) This
Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Any agreement on the part
of a party hereto to any extension or waiver with respect to this Agreement shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party hereto to assert any of its rights under this Agreement or otherwise shall not
constitute a waiver of such rights.
Section 9.05 Procedure
for Termination, Amendment, Extension or Waiver. A termination of this Agreement pursuant to Section 9.01 or an amendment
of this Agreement or an extension or waiver with respect to this Agreement pursuant to Section 9.04 shall, in order to be
effective, require, in the case of Parent or Merger Sub, action by its Board of Directors, and in the case of the Company, action by
the Company Board. Termination of this Agreement pursuant to Section 9.01 shall not require the approval of the stockholders
of the Company or Parent as sole stockholder of Merger Sub.
Article X
GENERAL PROVISIONS
Section 10.01 Nonsurvival
of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant
to this Agreement shall survive the Effective Time. This Section 10.01 shall not limit any covenant or agreement of the parties
hereto that by its terms contemplates performance after the Effective Time. The Confidentiality Agreement shall: (i) survive termination
of this Agreement in accordance with its terms; and (ii) terminate as of the Effective Time.
Section 10.02 Notices.
Any notice, request, or demand desired or required to be given hereunder will be in writing and will be given by email delivery, addressed
as respectively set forth below or to such other email address as any party hereto will have previously designated by such a notice.
The effective date of any notice, request, or demand will be the date on which the email is sent (provided that the sender of such email
does not receive a written notification of delivery failure).
(a) if
to Parent or Merger Sub, to
Concentra Biosciences, LLC,
4747 Executive Dr. Suite 210
San Diego, California 92121
Attention: Kevin Tang
Email: [***]
with a copy (which shall not constitute notice) to:
Gibson,
Dunn & Crutcher LLP
One Embarcadero Center, 26th Floor
San Francisco, California 94111
Attention: Ryan A. Murr
Email: rmurr@gibsondunn.com
(b) if
to the Company, to
Elevation Oncology, Inc.
101 Federal Street, Suite 1900
Boston, Massachusetts 02110
Attention: Tammy Furlong
Email: [***]
with a copy (which shall not constitute notice) to:
Fenwick & West LLP
401 Union Street
Seattle Washington 98101
Attention: Robert Freedman; Ryan Mitteness; David K. Michaels
Email: RFreedman@fenwick.com; RMitteness@fenwick.com;
DMichaels@fenwick.com
Section 10.03 Severability.
If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable
of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as
closely as possible in an acceptable manner to the end that Transactions are fulfilled to the extent possible.
Section 10.04 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile or other electronic image scan transmission (e.g.,
DocuSign or Adobe Sign) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.05 Entire
Agreement; Third-Party Beneficiaries; No Other Representations or Warranties.
(a) This
Agreement (including all Exhibits, Annexes and Schedules, including the Company Disclosure Letter, attached to this Agreement), the CVR
Agreement (including all Exhibits, Annexes or Schedules thereto), the Support Agreements (including all Exhibits, Annexes or Schedules
thereto), the Confidentiality Agreement and the Guaranty: (i) constitute the entire agreement, and supersede all prior agreements
and understandings, both written and oral, among the parties hereto and their Affiliates, or any of them, with respect to the subject
matter of this Agreement and the Confidentiality Agreement; and (ii) except for Section 7.03, are not intended to confer
upon any Person other than the parties hereto any rights or remedies. Notwithstanding clause (ii) of the immediately preceding sentence,
following the Effective Time the provisions of Article III shall be enforceable by holders of Certificates and holders of
Book-Entry Shares solely to the extent necessary to receive the Merger Consideration to which such holders are entitled to thereunder,
and the provisions of Section 3.10 shall be enforceable by holders of awards under the Company Stock Plans.
(b) Except
for the representations and warranties contained in Article IV, each of Parent and Merger Sub acknowledges that neither the
Company nor any Person on behalf of the Company makes, and neither Parent nor Merger Sub is relying on, any other express or implied representation
or warranty with respect to the Company or with respect to any other information made available to Parent or Merger Sub in connection
with the Transactions (including with respect to the accuracy or completeness thereof). In connection with the due diligence investigation
of the Company by Parent and Merger Sub, Parent and Merger Sub have received and may continue to receive from the Company certain estimates,
projections, forecasts and other forward-looking information, as well as certain business plans and cost-related plan information, regarding
the Company’s business and operations. Parent and Merger Sub hereby acknowledge that there are uncertainties inherent in attempting
to make such estimates, projections, forecasts and other forward-looking information, with which Parent and Merger Sub are familiar, that
Parent and Merger Sub are making their own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other
forward-looking information, as well as such business plans and cost-related plans, furnished to them (including the reasonableness of
the assumptions underlying such estimates, projections, forecasts, forward-looking information, business plans or cost-related plans),
and that neither Parent nor Merger Sub has relied upon the Company or its stockholders, directors, officers, employees, Affiliates, advisors,
agents or other Representatives, or any other Person, with respect thereto. Accordingly, each of Parent and Merger Sub hereby acknowledge
that neither the Company nor its stockholders, directors, officers, employees, Affiliates, advisors, agents or other Representatives,
nor any other Person, has made or is making any representation or warranty or has or shall have any liability (whether pursuant to this
Agreement, in tort or otherwise) with respect to such estimates, projections, forecasts, forward-looking information, business plans or
cost-related plans (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking
information, business plans or cost-related plans), except as expressly set forth in Article IV.
(c) Except
for the representations and warranties contained in Article V, the Company acknowledges that none of Parent, Merger Sub and
any other Person on behalf of Parent or Merger Sub makes, and the Company is not relying on, any other express or implied representation
or warranty with respect to Parent or Merger Sub or with respect to any other information made available to the Company in connection
with the Transactions (including with respect to the accuracy or completeness thereof).
Section 10.06 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts of laws thereof.
Section 10.07 Assignment.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto; provided
that Merger Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to Parent
or to any direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Merger Sub of any of its obligations
under this Agreement; provided, further, that any such assignment shall not take place after the commencement of the Offer
and shall not otherwise materially impede or delay the consummation of the Transactions or otherwise materially impede the rights of
the Company Stockholders under this Agreement. Any purported assignment without such consent shall be void. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
Section 10.08 Specific
Enforcement; Jurisdiction.
(a) The
parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions 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 hereto shall be entitled to an injunction or injunctions, or
any other appropriate form of equitable relief, to prevent breaches of this Agreement and to enforce specifically the performance of the
terms and provisions of this Agreement in any court referred to in Section 10.08(b), without proof of damages or otherwise
(and each party hereto hereby waives any requirement for the securing 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 right to specific enforcement shall include the right
of the Company to cause Parent and Merger Sub to cause the Offer, the Merger and the other Transactions to be consummated on the terms
and subject to the conditions set forth in this Agreement. The parties hereto further agree not to assert that a remedy of specific enforcement
is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide
an adequate remedy. Each of the parties hereto acknowledges and agrees that the right of specific enforcement is an integral part of the
Transactions and without such right, none of the parties hereto would have entered into this Agreement. If, prior to any termination of
this Agreement or the Outside Date, any party hereto brings any Proceeding, in each case, in accordance with Section 10.08(b),
to enforce specifically the performance of the terms and provisions hereof by any other party hereto, the Outside Date shall automatically
be extended by: (i) the amount of time during which such Proceeding is pending, plus twenty (20) Business Days; or (ii) such
other time period established by the court presiding over such Proceeding, as the case may be.
(b) Each
of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Delaware and to the jurisdiction
of the U.S. District Court for the State of Delaware, for the purpose of any Proceeding arising out of or relating to this Agreement or
the actions of Parent, Merger Sub or the Company in the negotiation, administration, performance and enforcement thereof, and each of
the parties hereto hereby irrevocably agrees that all claims with respect to such Proceeding may be heard and determined exclusively in
the Delaware Court of Chancery or, solely if the Delaware Court of Chancery does not have subject matter jurisdiction thereof, any other
court of the State of Delaware or any federal court sitting in the State of Delaware. Each of the parties hereto: (i) consents to
submit itself to the personal jurisdiction of the Delaware Court of Chancery, any other court of the State of Delaware and any federal
court sitting in the State of Delaware in the event any Proceeding arises out of this Agreement, the Offer, the Merger or any of the other
Transactions; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave
from any such court; (iii) irrevocably consents to the service of process in any Proceeding arising out of or relating to this Agreement,
the Offer, the Merger or any of the other Transactions, on behalf of itself or its property, by U.S. registered mail to such party’s
respective address set forth in Section 10.02 (provided that nothing in this Section 10.08(b) shall
affect the right of any party hereto to serve legal process in any other manner permitted by Law); and (iv) agrees that it will not
bring any Proceeding relating to this Agreement, the Offer, the Merger or any of the other Transactions in any court other than the Delaware
Court of Chancery (or, solely if the Delaware Court of Chancery shall be unavailable, any other court of the State of Delaware or any
federal court sitting in the State of Delaware). The parties hereto agree that a final trial court judgment in any such Proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law; provided
that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from,
such final trial court judgment.
Section 10.09 WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING ARISING OUT OF THIS AGREEMENT, THE OFFER, THE MERGER OR ANY OF THE OTHER TRANSACTIONS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS
IN THIS Section 10.09.
Section 10.10 Remedies.
Except as otherwise provided in this Agreement, the rights and remedies provided in this Agreement shall be cumulative and not exclusive
of any rights or remedies provided by applicable Law, and the exercise by a party hereto of any one remedy will not preclude the exercise
of any other remedy.
Section 10.11 Cooperation.
The parties hereto agree to provide reasonable cooperation with each other and to execute and deliver such further documents, certificates,
agreements and instruments and to take such actions as may be reasonably requested by the other parties hereto to evidence or effect
the Transactions and to carry out the intent and purposes of this Agreement.
Section 10.12 Parent
Guarantee. Parent agrees to take all action necessary to cause the Merger Sub or the Surviving Corporation, as applicable, and, during
the period between the Offer Closing Time and the Effective Time, to perform all of its agreements, covenants and obligations under this
Agreement. Parent unconditionally guarantees to the Company the full and complete performance by the Merger Sub or the Surviving Corporation,
as applicable, of its respective obligations under this Agreement including the payment of the Offer Price payable to Company Stockholders
and the obligations to the Indemnified Parties and shall be liable for any breach of any representation, warranty, covenant or obligation
of the Merger Sub or the Surviving Corporation, as applicable, under this Agreement. Parent hereby waives diligence, presentment, demand
of performance, filing of any claim, any right to require any proceeding first against Merger Sub or the Surviving Corporation, as applicable,
protest, notice and all defenses and demands whatsoever in connection with the performance of its obligations set forth in this Section 10.12.
Parent shall not have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for any
of the agreements, covenants and obligations of Merger Sub or the Surviving Corporation under this Agreement.
[Remainder of Page Intentionally Blank;
Signature Pages Follow]
IN WITNESS WHEREOF, Parent, Merger Sub and the
Company have duly executed this Agreement, all as of the date first written above.
Concentra Biosciences, LLC, as Parent
| By: | /s/ Kevin Tang |
|
| Name: | Kevin Tang |
|
| Title: | Chief Executive Officer |
|
Concentra
Merger Sub VI, Inc., as Merger Sub
| By: | /s/ Kevin Tang |
|
| Name: | Kevin Tang |
|
| Title: | Chief Executive Officer |
|
[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF
MERGER]
IN WITNESS WHEREOF, Parent, Merger Sub and the
Company have duly executed this Agreement, all as of the date first written above.
Elevation Oncology, Inc., as Company
| By: | /s/ Joseph Ferra |
|
| Name: | Joseph Ferra |
|
| Title: | President and Chief Executive Officer |
|
[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF
MERGER]
EXHIBIT A
Offer Conditions
Notwithstanding any other term of the Offer or
the Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject
to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Merger
Sub’s obligation to pay for or return tendered shares of the Company Common Stock promptly after the termination or withdrawal of
the Offer), pay for any shares of the Company Common Stock tendered pursuant to the Offer (and not theretofore accepted for payment or
paid for) unless there shall have been validly tendered in the Offer (and not properly withdrawn) prior to the expiration of the Offer
that number of shares of the Company Common Stock (excluding shares tendered pursuant to guaranteed delivery procedures that have not
yet been “received” by the “depository,” as such terms are defined by Section 251(h) of the DGCL) that,
when considered together with all other shares of the Company Common Stock (if any) owned by Merger Sub and its “affiliates”
(as defined in Section 251(h)(6)(a) of the DGCL, including Parent), represent at least one share of Company Common Stock more
than 50% of the number of Company Common Stock that are then issued and outstanding as of the expiration of the Offer (such condition,
the “Minimum Tender Condition”).
Furthermore, notwithstanding any other term of
the Offer or this Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for
payment or, subject as aforesaid, to pay for any shares of the Company Common Stock not theretofore accepted for payment or paid for if,
at the then-scheduled expiration of the Offer, any of the following conditions exists:
(i) there
shall be any Legal Restraint in effect preventing or prohibiting the consummation of the Offer, the Merger or any of the other transactions
contemplated by the Merger Agreement or CVR Agreement;
(ii) (A) any
representation or warranty of the Company set forth in Article IV (other than those set forth in Section 4.01
(Organization, Standing and Power) (but only with respect to the first and second sentences thereof), Section 4.02 (Capital
Structure), Section 4.04 (Authority; Execution and Delivery; Enforceability), Section 4.05(a)(i) (No Conflicts),
Section 4.08(a) (No Material Adverse Effect), Section 4.20 (Brokers and Other Advisors), Section 4.22
(Opinion of Financial Advisors) and Section 4.23 (No Vote Required)) shall not be true and correct as of the Agreement Date
and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty
expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct
that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for
purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to
“materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of the Company set
forth in Section 4.01 (Organization, Standing and Power) (but only with respect to the first and second sentences thereof),
Section 4.02(a), (b), (c), (d), (e), (f) and (g) (Capital Structure), Section 4.04
(Authority; Execution and Delivery; Enforceability), Section 4.05(a)(i) (No Conflicts), Section 4.20 (Brokers
and other Advisors), Section 4.22 (Opinion of Financial Advisors), Section 4.23 (No Vote Required), and the Closing
Net Cash Schedule shall not be true and correct in all material respects as of the Agreement Date and at and as of the Offer Closing Time
as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified
date (in which case on and as of such specified date), (C) any representation or warranty of the Company set forth in Section 4.02(a) (Capital
Structure) shall not be true and correct other than in de minimis respects at and as of such time, except to the extent such representation
or warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation or
warranty of the Company set forth in Section 4.08(a) (No Material Adverse Effect) shall not be true and correct in all
respects as of such time;
(iii) the
Company shall have failed to perform in all material respects the obligations to be performed by it as of such time under this Agreement,
including without limitation the Company’s obligations under Section 6.02;
(iv) Parent
shall have failed to receive from the Company a certificate, dated as of the date on which the Offer expires and signed by an executive
officer of the Company, certifying to the effect that the Offer Conditions set forth in clauses (ii) and (iii) have been satisfied
as of immediately prior to the expiration of the Offer;
(v) this
Agreement shall have been validly terminated in accordance with its terms (the “Termination Condition”); or
(vi) the
Closing Net Cash as finally determined pursuant to Section 2.01(d) is less than $26,449,000.
The foregoing conditions shall be in addition
to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer in accordance with the terms
and conditions of this Agreement.
The foregoing conditions are for the sole benefit
of Parent and Merger Sub and, subject to the terms and conditions of this Agreement and the applicable rules and regulations of the
SEC, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion (other than
the Minimum Tender Condition and the Termination Condition, which may not be waived by Parent or Merger Sub). The failure by Parent, Merger
Sub or any other Affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right,
the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other
facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
EXHIBIT B
Certificate of Incorporation of the Surviving
Corporation
(Attached)
EXHIBIT C
Bylaws of the Surviving Corporation
(Attached)
EXHIBIT D
Form of Contingent Value Rights Agreement
(Attached)
EXHIBIT E
Form of Tender and Support Agreement
(Attached)
Exhibit 10.1
FORM OF CONTINGENT VALUE RIGHTS AGREEMENT
THIS
CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [·] (this “Agreement”), is entered into by and between
Concentra Biosciences, LLC, a Delaware limited liability company (the “Parent”), Concentra Merger Sub VI, Inc.,
a Delaware corporation and a wholly owned Subsidiary of Parent (the “Purchaser”), [·], as Rights Agent
(as defined herein), and [·], solely in its capacity as the initial representative, agent and attorney in-fact of the Holders (the
“Representative”).
RECITALS
WHEREAS,
Parent, Purchaser, and Elevation Oncology, Inc., a Delaware corporation (the “Company”), have entered
into an Agreement and Plan of Merger, dated as of June 8, 2025 (the “Merger Agreement”), pursuant to which
Purchaser will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly
owned Subsidiary of Parent;
WHEREAS, pursuant to the Merger Agreement, and in
accordance with the terms and conditions thereof, Purchaser shall deliver to holders of outstanding Company Common Stock, Company Restricted
Stock Units and In-the-Money Options certain CVRs (as defined herein) of the Company (collectively, the “Initial Holders”),
pursuant to the terms and subject to the conditions hereinafter described;
WHEREAS, Parent desires that the Rights Agent act
as its agent for the purposes of effecting the distribution of the CVRs to the Initial Holders and performing the other services described
in this Agreement; and
WHEREAS, the Initial Holders desire that the Representative
(as defined herein) act as their agent for the purposes of accomplishing the intent and implementing the provisions of this Agreement
and facilitating the consummation of the transactions contemplated hereby and performing the other services described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing
and the consummation of the transactions referred to above, the parties agree, for the equal and proportionate benefit of all Holders
(as defined herein), as follows:
ARTICLE I
DEFINITIONS: CERTAIN RULES OF CONSTRUCTION
Section 1.1 Definitions.
Capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in the Merger Agreement. References to Purchaser
herein apply to the surviving corporation of the Merger with the Company from and after the Effective Time (as defined in the Merger Agreement).
As used in this Agreement, the following terms will have the following meanings:
“Acting Holders” means,
at the time of determination, Holders of not less than thirty percent (30%) of outstanding CVRs as set forth in the CVR Register.
“Additional
Closing Net Cash Proceeds” means 100% of the amount by which the Closing Net Cash as finally determined pursuant to Section 2.01(d) of
the Merger Agreement exceeds $26,449,000, adjusted for any claims Parent reasonably determines to be valid that arise prior to
30 days following the Merger Closing Date that are not accounted for in such Closing Net Cash.
“Change of Control” means:
(a) a sale or other disposition of all or substantially all of the assets of Purchaser on a consolidated basis (other than to any
Subsidiary (direct or indirect) of Parent); (b) a merger or consolidation involving Purchaser in which Purchaser is not the surviving
entity; and (c) any other transaction involving Purchaser in which Purchaser is the surviving or continuing entity but in which the
stockholders of Purchaser immediately prior to such transaction (qua stockholders of Purchaser) own less than 50% of Purchaser’s
voting power immediately after the transaction.
“Commercially
Reasonable Efforts” shall mean the following specified actions by Parent or its Subsidiaries, including the Company
after the Merger:
(a) only
during the Disposition Period, the expenditure of up to $400,000 (the “CVR Expense Cap”) for: (i) Disposition
business development efforts related to the CVR Product; (ii) the retention of an employee or consultant of Parent or Purchaser for
the purpose of maintaining and preserving the CVR Product and seeking, negotiating and executing Disposition Agreements; (iii) the
maintenance of the CVRs (including fees and expenses related to the Rights Agent and the Representative); (iv) the maintenance and
prosecution of the intellectual property relating to the CVR Product, which intellectual property is set forth on Schedule 1 hereto,
in each case as reflected in the Closing Net Cash (as defined in the Merger Agreement); and (v) the use of commercially reasonable
efforts to enter into one or more Disposition Agreements during the Disposition Period; provided that Parent shall not be required
to expend more than the CVR Expense Cap in furtherance thereof;
(b) only during the Disposition Period, continuing
the CMC Activities (as defined in the Merger Agreement) of the CVR Product to the extent the costs associated with such CMC Activities
were included in the Closing Net Cash Schedule; and
(c) only during the period commencing on the
Merger Closing Date and ending on the 30-day anniversary of the Merger Closing Date, as soon as practicable settle and resolve all outstanding
liabilities as set forth on the Company’s audited balance sheet for the year ended March 31, 2025 (the “Company
Outstanding Liabilities”).
For the avoidance of doubt, Commercially Reasonable
Efforts shall not include, among other actions, pursuing new clinical, manufacturing or enabling work with respect to the CVR Product.
“CVRs” means the contractual
contingent value rights of Holders that are granted by Purchaser to Initial Holders as additional consideration for the Offer and the
Merger pursuant to the terms of the Offer and the Merger Agreement. Unless otherwise specified herein, for purposes of this Agreement
all the CVRs shall be considered as part of and shall act as one class only. For the avoidance of doubt, Purchaser shall only grant CVRs
to the Initial Holders and shall not grant further CVRs to any other Persons at any other time during the pendency of this Agreement,
pursuant and subject to the terms hereof.
“CVR Payment Amount”
means, for a given Holder, an amount equal to the product of: (a) the CVR Proceeds; and (b) (i) the total number of CVRs
entitled to receive such CVR Proceeds held by such Holder, divided by (ii) the total number of CVRs entitled to receive such CVR
Proceeds held by all Holders as each reflected on the CVR Register as of the close of business on the date prior to the date of payment
(rounded down to the nearest whole cent).
“CVR Payment Date” means:
(a) with respect to Disposition Proceeds payable to Holders, no later than thirty (30) days following the receipt of Gross Proceeds
by Parent or any of its Affiliates; and (b) with respect to any Additional Closing Net Cash Proceeds payable to Holders, no later
than sixty (60) days following the Merger Closing Date.
“CVR Proceeds” means:
(a) the Disposition Proceeds; and (b) the Additional Closing Net Cash Proceeds.
“CVR
Product” means the Company’s product candidate known as EO-1022, a HER3 antibody-drug conjugate (ADC).
“Disposition” means the
sale, transfer, license or other disposition by Parent or any of its Affiliates, including the Company (after the Merger), of all or any
part of the CVR Product, in each case during the Disposition Period.
“Disposition Agreement”
means a definitive agreement, contract or other document entered into by Parent or any of its Affiliates, including the Company (after
the Merger), and any Person who is not an Affiliate of Parent providing for a Disposition.
“Disposition Period”
means the period beginning on the Merger Closing Date and ending on the first (1st) anniversary following the Merger Closing
Date.
“Disposition
Proceeds” means 80% of the Net Proceeds.
“DTC” means The Depository
Trust Company or any successor thereto.
“Equity Award CVR” means
a CVR received by a Holder in respect of Company Restricted Stock Units or In-the-Money Options.
“Governmental Body” means
any federal, state, provincial, local, municipal, foreign or other governmental or quasi-governmental authority, including, any arbitrator
or arbitral body, mediator and applicable securities exchanges, or any department, minister, agency, commission, commissioner, board,
subdivision, bureau, agency, instrumentality, court or other tribunal of any of the foregoing.
“Gross
Proceeds” means, without duplication, the sum of all cash consideration and the value of any and all consideration of any
kind that is paid to Parent or any of its Affiliates, or is received by, Parent or any of its Affiliates by the fifth (5th)
anniversary of the Merger Closing date in respect of a Disposition Agreement that is entered into during the Disposition Period, solely
as such consideration relates to a CVR Product. The value of any securities (whether debt or equity) or other non-cash property constituting
Gross Proceeds shall be determined as follows: (A) the value of securities for which there is an established public market shall
be equal to the volume weighted average of their closing market prices for the five (5) trading days ending the day prior to the
date of payment to, or receipt by, Parent or its relevant Affiliate; and (B) the value of securities that have no established public
market and the value of consideration that consists of other non-cash property, shall be the fair market value thereof as of the date
of payment to, or receipt by, Parent or its relevant Affiliate; provided, that Parent may elect, upon prompt notice to the Representative
after receipt of consideration, to have any securities or other non-cash property specified in the foregoing clause (B) be
deemed as Gross Proceeds only upon the earlier of: (1) the receipt by Parent or any of its Affiliates of cash in respect of the sale
or other liquidation by Parent or its Affiliates of such securities or other non-cash property, and the value of such cash shall be Gross
Proceeds upon receipt by Parent or any of its Affiliates; or (2) the first (1st) anniversary of receipt of such securities
or other non-cash property, and the value of such consideration shall be Gross Proceeds as of such date with a value equal to the greater
of (x) the fair market value of such securities or other non-cash property as of the date originally received by Parent or its relevant
Affiliate or (y) the fair market value of such securities or other non-cash property as of such date, and all other consideration,
if any, paid to or received by Parent or any of its Affiliates will be deemed Gross Proceeds upon receipt by Parent or its relevant Affiliate.
“Holder” means, at the
relevant time, a Person in whose name a CVR is registered in the CVR Register at the applicable time.
“Law” means any foreign
or U.S. federal, state or local law (including common law), treaty, statute, code, order, ordinance, approval, authorization, certificate,
registration, exemption, consent, license, order, permit and other similar authorizations, rule, regulation, or other requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.
“Net Proceeds” means,
for each Disposition, the Gross Proceeds minus Permitted Deductions, as calculated in a manner consistent with generally accepted accounting
principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board. For clarity: (i) if
Permitted Deductions exceed Gross Proceeds as it relates to a certain Disposition, as applicable, any excess Permitted Deductions shall
be applied against Gross Proceeds in a subsequent Disposition, as applicable; and (ii) if any of the Gross Proceeds or Permitted
Deduction are not in U.S. dollars, currency conversion to U.S. dollars shall be made by using the exchange rate prevailing at the JP Morgan
Chase Bank or its successor entity on the date of receipt of such Gross Proceeds or date of payment of relevant Permitted Deductions,
as applicable.
“Officer’s Certificate”
means a certificate signed by an authorized officer of Parent, in his or her capacity as such an officer, and delivered to the Rights
Agent and the Representative.
“Permitted CVR Transfer”
means a transfer of CVRs: (a) upon death of a Holder by will or intestacy; (b) pursuant to a court order; (c) by operation
of law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination
of any corporation, limited liability company, partnership or other entity; (d) in the case of CVRs held in book-entry or other similar
nominee form, from a nominee to a beneficial owner and, if applicable, through an intermediary, to the extent allowable by DTC; or (e) as
provided in Section 2.7.
“Permitted Deductions”
means the sum of, without duplication, the following costs or expenses:
(a) any applicable Taxes (including any applicable
value added or sales taxes) imposed on Gross Proceeds and payable by Parent or any of its Affiliates and any income or other Taxes payable
by Parent or any of its Affiliates that would not have been incurred by Parent or its Affiliates but for the Gross Proceeds having been
received or accrued by Parent or its Affiliates (in each case, regardless of the due date of such Taxes); provided that for purposes
of calculating income Taxes payable by Parent or its Affiliates in respect of the Gross Proceeds, any such income Taxes shall be computed
after taking into account any net operating loss carryforwards or other Tax attributes (including Tax credits) of the Company or its Affiliates
as of the Merger Closing Date prior to the Effective Time that are available to offset such gain after taking into account any limits
of the usability of such attributes, including under Section 382 of the Code as reasonably determined by a nationally recognized
tax advisor (and for the sake of clarity such income Taxes shall be calculated without taking into account any net operating losses or
other Tax attributes generated by Parent or its Affiliates after the Effective Time);
(b) any reasonable and documented out-of-pocket
costs and expenses incurred by Parent or any of its Affiliates in connection with the development and Disposition of applicable CVR Product(s),
including research and development costs, technology transfer costs, contractual expenses and any costs in respect of head licenses for
sublicensed technology and the development or prosecution, maintenance or enforcement by Parent or any of its Subsidiaries of intellectual
property rights but excluding: (i) any costs related to a breach of this Agreement, including costs incurred in litigation in respect
of the same but excluding the costs of the dedicated resource referenced in the definition of Commercially Reasonable Efforts; and (ii) to
the extent not duplicative to clause (i), any such costs that are accounted for in the CVR Expense Cap, Transaction Expenses (as
defined in the Merger Agreement) or Estimated Costs Post-Merger Closing (as defined in the Merger Agreement);
(c) (i) any reasonable and documented
out-of-pocket costs and expenses incurred by Parent or any of its Affiliates in connection with Disposition business development related
efforts with respect to the relevant CVR Product(s) during the Disposition Period; and (ii) maintenance costs related to the
CVRs or the CVR Product (including fees and expenses related to the Rights Agent and the Representative), in each case in excess of the
CVR Expense Cap; and
(d) any reasonable and documented out-of-pocket
costs incurred or accrued by Parent or any of its Affiliates in connection with Parent’s commercially reasonable efforts to negotiate
or enter into any Disposition Agreement or consummate a Disposition of any applicable CVR Product(s), including any Representative’s
fee, Right’s Agent fee, any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee, service fee or other fee,
commission or expense owed to any broker, finder, investment bank, auditor, accountant, counsel, advisor or other third party in relation
thereto (but excluding any costs or expenses previously deducted from Gross Proceeds, the CVR Expense Cap, Transaction Expenses or Estimated
Costs Post-Merger Closing).
“Person” means any individual,
firm, corporation, limited liability company, partnership, trust or other entity, and shall include any successor (by merger or otherwise)
thereof or thereto.
“Rights Agent” means
the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent will have become such pursuant to the
applicable provisions of this Agreement, and thereafter “Rights Agent” will mean such successor Rights Agent.
“Subsidiary” means, with
respect to any Person, any corporation, partnership, association, limited liability company, unlimited liability company or other business
entity of which: (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (b) if a partnership,
association, limited liability company, or other business entity, a majority of the partnership or other similar ownership interests thereof
is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association,
limited liability company or other business entity if such Person or Persons are allocated a majority of partnership, association, limited
liability company or other business entity gains or losses or otherwise control the managing director, managing member, general partner
or other managing Person of such partnership, association, limited liability company or other business entity.
“Tax” or “Taxes”
means any and all federal, state, local, or non-U.S. income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar,
including FICA), unemployment, disability, real property, personal property, sales, use, transfer, registration, value-added, alternative
or add-on minimum, or other tax of any kind or any charge of any kind in the nature of (or similar to) taxes whatsoever, including any
interest, penalty or addition thereto.
Section 1.2 Rules of
Construction.
(a) As
used in this Agreement, any noun or pronoun will be deemed to include the plural as well as the singular and to cover all genders.
(b) This
Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted. The parties hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly
drafted by the parties hereto and no presumption of burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of this Agreement.
(c) As
used in this Agreement, the words “include,” “includes,” or “including” will be deemed to be followed
by the words “without limitation.” The words “hereof,” “herein,” “hereby,” “hereto,”
and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to
any particular provision of this Agreement. The word “or” will not be exclusive.
(d) When
reference is made in this Agreement to an Article or Section, such reference will refer to Articles and Sections of this Agreement,
as the case may be, unless otherwise indicated.
(e) The
headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of this Agreement.
(f) All
references to $ are to United States dollars.
ARTICLE II
CONTINGENT VALUE RIGHTS
Section 2.1 CVRs;
Authority; Appointment of Rights Agent. The CVRs represent the contractual rights of Holders to receive contingent cash payment of
the CVR Proceeds from Parent pursuant to this Agreement. Parent has all requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Parent and no other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Parent and,
assuming the due authorization, execution and delivery by the Rights Agent, Purchaser and the Representative, constitutes a legal, valid
and binding obligation of Parent, enforceable against Parent in accordance with its terms. Neither the execution and delivery of this
Agreement nor the performance by Parent of its obligations hereunder or the consummation of the transactions contemplated hereby will:
(i) conflict with, or result in any violation of any provision of the certificate of incorporation, bylaws and other similar organizational
documents of Parent; or (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under, any loan or credit agreement,
note, mortgage, indenture, lease, or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Parent or its properties or assets which violation, in the case
of clause (ii), individually or in the aggregate, would reasonably be expected to have a material adverse effect on the ability
of Parent to perform the obligations forth in this Agreement. No consent, approval, order or authorization of, or registration, declaration,
notice or filing with, any Governmental Body is required by or with respect to Parent in connection with the execution and delivery of
this Agreement by the Parent or the consummation by Parent of the transactions contemplated hereby, except as would not reasonably be
expected to have a material adverse effect on the ability of Parent to perform the obligations set forth in this Agreement. Parent hereby
appoints [·] as the Rights Agent to act as rights agent for Parent in accordance with the instructions hereinafter set forth in this
Agreement, and [·] hereby accepts such appointment.
Section 2.2 Nontransferable.
The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in
part, other than through a Permitted CVR Transfer. Any attempted sale, assignment, transfer, pledge, encumbrance or disposition of CVRs,
in whole or in part, in violation of this Section 2.2 shall be void ab initio and of no effect.
Section 2.3 No
Certificate; Registration; Registration of Transfer; Change of Address.
(a) The
CVRs will be issued and distributed by Purchaser to each Holder in book-entry form only and will not be evidenced by a certificate or
other instrument.
(b) The
Rights Agent will keep a register (the “CVR Register”) for the purpose of: (i) identifying the Holders
of CVRs; and (ii) registering CVRs and Permitted CVR Transfers thereof. The CVR Register will initially show one position for Cede &
Co. representing all the Company Common Stock held by DTC on behalf of the street holders of the Company Common Stock held by such Holders
as of immediately prior to the Effective Time. The Rights Agent will have no responsibility whatsoever directly to the street name holders
with respect to transfers of CVRs unless and until such CVRs are transferred into the name of such street name holders in accordance with
Section 2.2. With respect to any payments to be made under Section 2.4 below, the Rights Agent will accomplish
the payment to any former street name holders of Company Common Stock by sending one lump payment to DTC. The Rights Agent will have no
responsibilities whatsoever with regard to the distribution of payments by DTC to such street name holders. Upon request of a Holder or
the Representative to Parent, Parent will cause the Rights Agent to make available to such Holder or the Representative, as applicable,
a list of the other Holders, the number of CVRs held by each Holder, the contact information maintained by the Rights Agent with respect
to each Holder and such other information relating to this Agreement as may be reasonably requested by the Representative and is information
that is typically stored by a Rights Agent in accordance with general industry practices for similar types of engagements.
(c) Subject
to the restrictions on transferability set forth in Section 2.2 and subject to the Rights Agent’s bona fide procedures
to validate the identity of a Holder, every request made to transfer a CVR must be in writing and accompanied by a written instrument
of transfer, in form reasonably satisfactory to the Rights Agent pursuant to its guidelines, duly executed by the Holder thereof, the
Holder’s attorney duly authorized in writing, the Holder’s personal representative duly authorized in writing, or the Holder’s
survivor (with written documentation evidencing such Person’s status as the Holder’s survivor), and setting forth in reasonable
detail the circumstances relating to the transfer. Upon receipt of such written notice and proper validation of the identity of such Holder,
the Rights Agent will, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise
complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), register the transfer
of the CVRs in the CVR Register. As a condition of such transfer, Parent and Rights Agent may require a transferring Holder or its transferee
to pay to the applicable Governmental Body any transfer, stamp, documentary, registration, or other similar Tax or governmental charge
that is imposed in connection with any such registration of transfer. The Rights Agent shall have no duty or obligation to take any action
under any section of this Agreement that requires the payment by a Holder of a CVR of such applicable Taxes or charges unless and until
the Rights Agent is reasonably satisfied that all such Taxes or charges have been paid or that such Taxes or charges are not applicable.
All duly transferred CVRs registered in the CVR Register will be the valid obligations of Purchaser and will entitle the transferee to
the same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor. No transfer of a
CVR will be valid until registered in the CVR Register in accordance with this Agreement.
(d) A
Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register. The written
request must be duly executed by the Holder. Upon receipt of such written notice and proper validation of the identity of such Holder,
the Rights Agent will promptly record the change of address in the CVR Register.
Section 2.4 Payment
Procedures: Notices.
(a) If
a Disposition Agreement is entered into during the Disposition Period, then Parent shall promptly deliver to the Rights Agent (with a
copy to the Representative) written notice indicating that a Disposition Agreement has been entered into and a copy of the Disposition
Agreement and any ancillary agreements thereto.
(b) On
or prior to each CVR Payment Date, with respect to any Disposition Agreement or any Additional Closing Net Cash Proceeds, Parent shall
deliver to the Rights Agent (with a copy to the Representative): (i) written notice indicating that: (A) the Holders are entitled
to receive one or more payments with respect to Disposition Proceeds or Additional Closing Net Cash Proceeds, as applicable; (B) the
source and trigger event for such payment of Disposition Proceeds or Additional Closing Net Cash Proceeds, as applicable; and (C) a
calculation of Gross Proceeds, Net Proceeds and any Permitted Deductions used to calculate such Disposition Proceeds, with reasonable
supporting detail for such Permitted Deductions, or other calculations used to calculate the Additional Closing Net Cash Proceeds, as
applicable (each such notice, a “CVR Payment Notice”); and (ii) any letter of instruction reasonably required
by the Rights Agent. On or prior to any CVR Payment Date, Parent shall deliver to the Rights Agent the CVR Payment Amounts required by
Section 4.2. All payments by Parent hereunder shall be made in U.S. dollars. For the avoidance of doubt, Parent shall have
no further liability in respect of the relevant CVR Payment Amount upon delivery of such CVR Payment Amount in accordance with this Section 2.4(b) and
the satisfaction of each of Parent’s obligations set forth in this Section 2.4(b). With respect to cash deposited by
Parent with the bank or financial institution designated by Rights Agent, Rights Agent agrees to cause such bank or financial institution
to establish and maintain a separate demand deposit account, therefor in the name of Rights Agent for the benefit of Parent. Rights Agent
will only draw upon cash in such account(s) as required from time to time in order to make payments as required under this Agreement
and any applicable tax withholding payments.
(c) The
Rights Agent will promptly, and in any event within ten (10) Business Days after receipt of the CVR Payment Notice as well as any
letter of instruction reasonably required by the Rights Agent, send each Holder at its registered address a copy of the CVR Payment Notice
and, following the applicable CVR Payment Date, promptly pay the CVR Payment Amount to each of the Holders reflected in the CVR Register
as of the close of business on the CVR Payment Date.
(d) Any
portion of the CVR Payment Amount that remains undistributed to a Holder six (6) months after the date of the delivery of the applicable
CVR Payment Date will be delivered by the Rights Agent to Parent or Purchaser, upon demand, and any Holder will thereafter look only to
Parent and Purchaser for payment of the CVR Payment Amount, without interest, but such Holder will have no greater rights against Parent
and Purchaser than those accorded to general unsecured creditors of Parent and Purchaser under applicable Law.
(e) None
of Parent, any of its Affiliates (including Purchaser), or the Rights Agent will be liable to any Person in respect of the CVR Payment
Amount delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If, despite Parent’s,
any of its Affiliates’ and/or the Rights Agent’s commercially reasonable efforts to deliver the CVR Payment Amount to the
applicable Holder, the CVR Payment Amount has not been paid prior to two (2) years after the applicable CVR Payment Date (or immediately
prior to such earlier date on which the CVR Payment Amount would otherwise escheat to or become the property of any Governmental Body),
the CVR Payment Amount will, to the extent permitted by applicable Law, become the property of Parent or Purchaser, free and clear of
all claims or interest of any Person previously entitled thereto. In addition to and not in limitation of any other indemnity obligation
herein, Parent and Purchaser agree to indemnify and hold harmless Rights Agent with respect to any liability, penalty, cost or expense
Rights Agent may incur or be subject to in connection with transferring such property to Parent or Purchaser.
Section 2.5 Tax
Matters.
(a) Except
to the extent any portion of the CVR Payment Amount is required to be treated as imputed interest pursuant to applicable Law, Parent,
Purchaser and the Representative intend that, for all U.S. federal and applicable state and local income tax purposes: (i) the CVRs
received in respect of Company Common Stock (which for avoidance of doubt does not include the Equity Award CVRs) will be treated as additional
consideration paid with respect to such Company Common Stock in connection with the Offer or the Merger, as the case may be; (ii) any
CVR Payment Amount received in respect of such CVRs will be treated as an amount realized on the disposition or partial disposition of
the applicable CVRs; and (iii) any CVR Payment Amount paid in respect of any Equity Award CVR will be treated as wages in the year
in which the CVR Payment Amount is made (and not upon the receipt of such CVR) (clauses (i), (ii) and (iii), collectively,
the “Intended Tax Treatment”). Unless otherwise required by a “determination” within the meaning
of Section 1313(a) of the Code (or a similar determination under applicable state or local Law), the parties to this Agreement
shall file all U.S. federal, state and local Tax Returns in a manner consistent with the Intended Tax Treatment, and no party shall take
or cause another to take, a position or action inconsistent with such treatment, or fail to take, or knowingly fail to cause another to
take, a position or action, where the failure to take such position or action is inconsistent with such treatment. For the avoidance of
doubt, nothing herein is intended to impose on the Representative any obligation to prepare or file any Tax Returns.
(b) In
addition to any Permitted Deductions, Parent and its Affiliates (including Purchaser) and the Rights Agent shall be entitled to deduct
and withhold, or cause to be deducted or withheld, from each CVR Payment Amount or any other amounts otherwise payable pursuant to this
Agreement such amounts as may be required to be deducted and withheld therefrom under applicable Law. With respect to Holders who received
Equity Award CVRs, any such withholding may be made, or caused to be made, by Parent through the payroll system or any successor payroll
system of Parent or any of its Affiliates, including the Company. Prior to making (or causing to be made) any such Tax deduction or withholding,
Parent shall instruct the Rights Agent to provide the opportunity for the Holders to provide duly executed Internal Revenue Service Forms
W-9 or W-8, as applicable, or any other reasonably appropriate forms or information from Holders in order to avoid or reduce withholding.
The Purchaser shall promptly and timely remit, or cause to be remitted, any amounts withheld in respect of Taxes to the appropriate Governmental
Body. To the extent any amounts are so deducted and withheld, such amounts shall be treated for all purposes of this Agreement as having
been paid to the Person in respect of whom such deduction and withholding was made.
(c) Parent,
Purchaser and the Representative intend that each payment provided under this Agreement with respect to an Equity Award CVR (the “Payments”)
is a separate “payment” for purposes Section 1.409A-2(b)(2)(i) of the U.S. Treasury Regulations. For the avoidance
of doubt, Parent, Purchaser and the Representative intend that the Payments satisfy, to the greatest extent possible, the exemption from
the application of Section 409A of the Code and the Treasury Regulations and other guidance issued thereunder and any state law of
similar effect (collectively “Section 409A”) provided under Treasury Regulations Section 1.409A-1(b)(4) and,
to the extent not so exempt, that the Payments comply, and this Agreement be interpreted to the greatest extent possible, as consistent
with Treasury Regulations Section 1.409A-3(i)(5)(iv)(A) - that is, as “transaction-based compensation.” To the extent
this Agreement (and any definitions hereunder), or any payments hereunder, are not exempt, they shall be construed in a manner that complies
with Section 409A, including by reason of satisfying the “transaction-based compensation” provisions thereunder, including
the five (5)-year post-Merger Closing payment limitation therein, and shall incorporate by reference all required definitions and payment
terms. Notwithstanding the foregoing, none of Parent, the Company or the manager of Parent, or any of their respective representatives
make any representation or warranty and will have no liability to a Holder or transferee or any other Person if any payments under any
provisions of this Agreement are determined to constitute deferred compensation under Section 409A of the Code (or any similar U.S.
state tax law) that are subject to certain additional federal, state or other taxes. Parent may provide each recipient of an Equity Award
CVR with a notice or award agreement setting forth the terms and condition of the Holder’s entitlement to payments under such Equity
Award CVR in accordance with the terms of this Agreement. Rights Agent makes no representations or warranties with respect to tax treatment
of the CVRs. None of the Rights Agent, its Affiliates or the services provided by the Rights Agent hereunder are intended to provide legal,
tax or financial advice.
Section 2.6 No
Voting, Dividends or Interest; No Equity or Ownership Interest in Parent or any of its Affiliates.
(a) The
CVRs will not have any voting or dividend rights, and interest will not accrue on any amounts payable on the CVRs to any Holder.
(b) The
CVRs will not represent any equity or ownership interest in Parent, any constituent corporation party to the Merger or any of their respective
Affiliates. It is hereby acknowledged and agreed that a CVR shall not constitute a security of Parent.
(c) Each
Holder acknowledges and agrees to the appointment and authority of the Representative to act as the exclusive representative, agent and
attorney-in-fact of such Holder and all Holders as set forth in this Agreement. Each Holder agrees that such Holder will not challenge
or contest any action, inaction, determination or decision of the Representative or the authority or power of the Representative and will
not threaten, bring, commence, institute, maintain, prosecute or voluntarily aid any action, which challenges the validity of or seeks
to enjoin the operation of any provision of this Agreement, including the provisions relating to the authority of the Representative to
act on behalf of such Holder and all Holders as set forth in this Agreement. All actions taken by the Representative under this Agreement
or the Representative Engagement Agreement shall be binding upon each Holder and such Holder’s successors as if expressly confirmed
and ratified in writing by such Holder, and all defenses which may be available to any Holder to contest, negate or disaffirm the action
of the Representative taken in good faith under this Agreement or the Representative Engagement Agreement are waived.
(d) Parent,
its manager and its officers and Affiliates will not be deemed to have any fiduciary or similar duties to any Holder by virtue of this
Agreement.
(e) It
is hereby acknowledged and agreed that the CVRs and the possibility of any payment hereunder with respect thereto are highly speculative
and subject to numerous factors outside of Parent’s control, and there is no assurance that Holders will receive any payments under
this Agreement or in connection with the CVRs. The Parties acknowledge that it is possible that no Disposition will occur during the Disposition
Period and that there will not be any Gross Proceeds that may be the subject of a CVR Payment Amount.
Section 2.7 Ability
to Renounce or Abandon CVR. Notwithstanding anything to the contrary contained herein, any Holder or Holder’s successor or assign
pursuant to a Permitted CVR Transfer may, at any time, at such Holder’s option, agree to renounce, in whole or in part, its rights
under this Agreement and abandon all of such Holder’s remaining rights in a CVR by transferring such CVR to Purchaser or Parent
without consideration therefor, effected by written notice to the Rights Agent, the Representative and Parent, which renouncement and
abandonment notice, if given, shall be irrevocable. Nothing in this Agreement shall prohibit Parent or any of its Affiliates (including
Purchaser) from offering to acquire or acquiring any CVRs for consideration from the Holders, in private transactions or otherwise, in
its sole discretion. Any CVRs acquired by Parent or any of its Affiliates (including Purchaser) shall be automatically deemed extinguished
and no longer outstanding for purposes of the definition of Acting Holders and ARTICLE VI and Section 6.3 hereunder.
ARTICLE III
THE RIGHTS AGENT
Section 3.1 Certain
Duties and Responsibilities. The Rights Agent will not have any liability for any actions taken or not taken in connection with this
Agreement, except to the extent of its bad faith, gross negligence, fraud or willful misconduct (in each case as determined by a court
of competent jurisdiction).
Section 3.2 Certain
Rights of Rights Agent. The Rights Agent undertakes to perform only the duties and obligations as are specifically set forth in this
Agreement, and no implied covenants or obligations will be read into this Agreement against the Rights Agent. In addition, Parent, Purchaser
and the Representative (on behalf of the Holders) each agree that the Rights Agent shall have the following rights:
(a) the
Rights Agent may rely on and will be protected and held harmless by Parent in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, power of attorney, endorsement, direction, consent, order or other paper or document
believed by it in good faith to be genuine and to have been signed, executed and, where necessary, verified or acknowledged or presented
by the proper party or parties;
(b) the
Rights Agent may rely on and shall be held harmless by Parent in acting upon written (including electronically transmitted) or oral instructions
from Parent, Purchaser, the Representative or any CVR Holder with respect to any matter relating to its acting as Rights Agent;
(c) whenever
the Rights Agent deems it desirable that a matter be proved or established prior to taking or omitting any action hereunder, the Rights
Agent may: (i) rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Rights
Agent; and (ii) the Rights Agent shall, in the absence of bad faith, gross negligence, fraud or willful misconduct on its part (in
each case, as determined by a court of competent jurisdiction), incur no liability and be held harmless by Parent for or in respect of
any action taken or omitted to be taken by it under the provisions of this Agreement in reliance upon such Officer’s Certificate;
(d) the
Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any opinion of counsel will,
in the absence of bad faith, gross negligence, fraud or willful misconduct (in each case, as determined by a court of competent jurisdiction),
provide full and complete authorization and protection to the Rights Agent and the Rights Agent shall be held harmless by Parent in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the
permissive rights of the Rights Agent to do things enumerated in this Agreement will not be construed as a duty;
(f) the
Rights Agent will not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the
CVR Proceeds;
(g) the
Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent with respect to, any of the statements of fact
or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed
to have been made by Parent only;
(h) the
Rights Agent will have no liability and shall be held harmless by Parent in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against
the Rights Agent assuming the due execution and delivery hereof by Parent), nor shall it be responsible for any breach by Parent of any
covenant or condition contained in this Agreement;
(i) the
Rights Agent shall not be required to perform any action if such action would cause the Rights Agent to violate any applicable law, regulation
or court order;
(j) the
Rights Agent shall not be deemed to have any knowledge of any event of which it was to receive notice thereof hereunder, and the Rights
Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it
has received such notice in writing;
(k) the
Rights Agent shall not assume any obligations or relationship of agency or trust with the Representative or any Holder;
(l) Parent
agrees to indemnify the Rights Agent and its affiliates, and its and their respective employees, officers, directors, representatives
and advisors for, and hold such Persons harmless against, any loss, liability, damage, judgment, fine, penalty, cost or expense (each,
a “Loss”) arising out of or in connection with the Rights Agent’s duties under this Agreement, including
the reasonable, documented and necessary out-of-pocket costs and expenses of defending Rights Agent against any claims, charges, demands,
actions or suits arising out of or in connection with the execution, acceptance, administration, exercise and performance of its duties
under this Agreement or enforcing its rights hereunder, unless such Loss has been determined by a court of competent jurisdiction to be
a result of Rights Agent’s gross negligence, bad faith, fraud or willful misconduct; provided that this Section 3.2(h) shall
not apply with respect to income, receipt, franchise or similar Taxes;
(m) Parent
agrees: (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as agreed upon in writing by the Rights
Agent and Parent on or prior to the date hereof; and (ii) to reimburse the Rights Agent for all reasonable, documented and necessary
out-of-pocket expenses paid or incurred by the Rights Agent in connection with the administration by the Rights Agent of its duties hereunder,
including all stamp and transfer Taxes (and excluding for the avoidance of doubt any income, receipt, franchise or similar) and governmental
charges, except that Parent will have no obligation to pay the fees of the Rights Agent or reimburse the Rights Agent for the fees of
counsel in connection with any lawsuit initiated by the Rights Agent on behalf of itself, except in the case of any suit enforcing the
provisions of Section 2.4(a), Section 2.4(b), Section 2.4(c), Section 2.4(d) or Section 3.2,
if Parent is found by a court of competent jurisdiction to be liable to the Rights Agent or the Holders, as applicable in such suit; and
(n) no
provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Section 3.3 Resignation
and Removal; Appointment of Successor.
(a) The
Rights Agent may resign at any time by giving written notice thereof to Parent (with a copy to the Representative) specifying a date when
such resignation will take effect, which notice will be sent at least sixty (60) days prior to the date so specified but in no event will
such resignation become effective until a successor Rights Agent has been appointed. The Representative shall have the right to remove
Rights Agent at any time by specifying a date when such removal will take effect but no such removal will become effective until a successor
Rights Agent has been appointed. Notice of such removal will be given by the Representative to Rights Agent (with a copy to the Parent),
which notice will be sent at least sixty (60) days prior to the date so specified.
(b) If
the Rights Agent provides notice of its intent to resign, is removed pursuant to Section 3.3(a) or becomes incapable
of acting, Parent and the Representative, acting in concert, will, as soon as is reasonably possible, appoint a qualified successor Rights
Agent who, unless otherwise consented to in writing by the Acting Holders, shall be a stock transfer agent of national reputation or the
corporate trust department of a commercial bank. The successor Rights Agent so appointed will, forthwith upon its acceptance of such appointment
in accordance with Section 3.4, become the successor Rights Agent.
(c) Parent
will give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing written
notice of such event by first-class mail to the Holders as their names and addresses appear in the CVR Register. Each notice will include
the name and address of the successor Rights Agent. If Parent fails to send such notice within ten (10) Business Days after acceptance
of appointment by a successor Rights Agent in accordance with Section 3.4, the successor Rights Agent will cause the notice
to be mailed at the expense of Parent.
Section 3.4 Transition
Support. Rights Agent will cooperate with Parent, the Representative and any successor Rights Agent as reasonably requested in connection
with the transition of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including the transfer of all
relevant data, including transferring the CVR Register to the successor Rights Agent.
Section 3.5 Acceptance
of Appointment by Successor. Every successor Rights Agent appointed pursuant to Section 3.3(b) hereunder will execute,
acknowledge and deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this
Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, will become vested with all the rights,
powers, trusts and duties of the retiring Rights Agent. On request of Parent or the successor Rights Agent, the retiring Rights Agent
will execute and deliver an instrument transferring to the successor Rights Agent all the rights, powers, trusts and duties of the retiring
Rights Agent.
ARTICLE IV
COVENANTS
Section 4.1 List
of Holders. Parent will furnish or cause to be furnished to the Rights Agent (with a copy to the Representative) in such form as Parent
receives from the Company’s transfer agent (or other agent performing similar services for Parent), the names and addresses of the
Holders of such securities within thirty (30) days of the Merger Closing Date.
Section 4.2 Payment
of CVR Payment Amounts. Parent shall, on or prior to any CVR Payment Date, deposit with the bank or financial institution designated
by the Rights Agent, for payment to the Holders in accordance with Section 2.4, the aggregate amount necessary to pay the
CVR Payment Amount to each Holder.
Section 4.3 Discretion
and Decision-Making Authority. Notwithstanding anything herein to the contrary, but subject to Parent’s obligations to use Commercially
Reasonable Efforts as set forth herein: (a) Parent and its Affiliates shall have the power and right to control all aspects of their
businesses and operations (and all of their assets and products), and subject to its compliance with the terms of this Agreement, Parent
and its Affiliates may exercise or refrain from exercising such power and right as it may deem appropriate and in the best overall interests
of Parent and its Affiliates and its and their stockholders, rather than the interest of the Holders; and (b) following the Disposition
Period, the Company shall be permitted to take any action in respect of the CVR Product; provided that, during the Disposition period:
(a) Neither
Parent nor any of its Affiliates (including Purchaser) may enter into a Disposition Agreement with Parent or any of its Affiliates (including
Purchaser) as the acquiror, licensee or recipient of the CVR Product without the prior written consent of the Representative.
(b) Parent
shall not, before the first (1st) anniversary following the Merger Closing Date, terminate or negatively impact the required
maintenance of the CVR Product, including by failing to preserve and maintain the CVR Product.
(c) Parent
shall comply with maintenance obligations relating to the intellectual property described in Schedule 1 required by any license
or related term set forth in any Disposition Agreement, to the extent such intellectual property is contemplated by said Disposition Agreement.
Section 4.4 Audit
Right. If Parent does not achieve any Additional Closing Net Cash Proceeds, Parent shall deliver to the Representative, within
sixty (60) days following such determination, a report setting forth the calculations and reasonable supporting detail for the lack of
Additional Closing Net Cash Proceeds (the “Negative Further Savings Report”). Upon the prior written request
by the Representative, Parent shall meet at reasonable times during normal business hours with the Representative to discuss the content
of any CVR Payment Notice or the Negative Further Savings Report. Parent agrees to maintain, for at least one (1) year after the
last possible payment of CVR Proceeds, all books and records relevant to the calculation of a CVR Payment Amount and the amount of Gross
Proceeds, Net Proceeds and Permitted Deductions or any other calculations with respect to the Additional Closing Net Cash Proceeds or
the Negative Further Savings Report, as applicable. Subject to reasonable advance written notice from the Representative and prior execution
and delivery by an independent accounting firm of national reputation chosen by the Representative (the “Accountant”)
of a reasonable and customary confidentiality/nonuse agreement, Parent shall permit the Representative and the Accountant, acting as agent
of the Representative (on behalf of the Holders), for one (1) year after the last possible payment of CVR Proceeds, to have access
during normal business hours to the books and records of Parent as may be reasonably necessary to audit the calculation of such CVR Payment
Amount, the calculation of the amount of Gross Proceeds, Net Proceeds and Permitted Deductions or any calculations with respect to the
Additional Closing Net Cash Proceeds or the Negative Further Savings Report, as applicable.
Section 4.5 Assignments.
Parent shall not, in whole or in part, assign any of its obligations under this Agreement other than in accordance with the terms of Section 6.3.
At any time, the Representative may resign (in which case the Acting Holders shall promptly appoint a successor Representative (reasonably
acceptable to Parent)) and may assign any of its rights or obligations under this Agreement (or this Agreement in its entirety) to any
third party (reasonably acceptable to Parent) to serve as a successor Representative, provided that such assignee executes a written joinder
to this Agreement assuming the rights and duties of the Representative. The immunities and rights to indemnification granted to
the Representative Group hereunder shall survive the resignation or removal of the Representative or any member of the Advisory Group
and the Merger Closing and/or any termination of this Agreement. Certain Holders have entered into an engagement agreement (the “Representative
Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services
under this Agreement and the Representative Engagement Agreement (such Holders, including their individual representatives, collectively
hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors,
officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”)
will incur liability of any kind to the Holders with respect to any action or omission in connection with the acceptance or administration
of the Representative’s responsibilities hereunder or under the Representative Engagement Agreement, including any by the Representative
in connection with the Representative’s services in connection with this Agreement, except in the event and only to the extent of
liability directly resulting from the Representative’s bad faith, gross negligence, fraud or willful misconduct (for the avoidance
of doubt, neither the Advisory Group nor any member of the Advisory Group shall incur any liability of any kind to the Holders with respect
to any liability directly resulting from the Representative’s bad faith, gross negligence, fraud or willful misconduct).
Section 4.6 Additional
Covenants.
(a) During
the Disposition Period, Purchaser shall, and shall cause its Subsidiaries, licensees and rights transferees to, use Commercially Reasonable
Efforts to enter into one or more Disposition Agreements as soon as practicable following the Effective Time.
(b) During
the Disposition Period, Purchaser shall continue to seek partnerships or investments for the CVR Product.
(c) During
the Disposition Period, Purchaser shall, and shall cause its Subsidiaries, licensees and rights transferees to, manage the CMC Activities
of any CVR Product in accordance with Parent’s plans as of the Effective Date.
(d) During
the period commencing on the Merger Closing Date and ending on the 30-day anniversary of the Merger Closing Date, Purchaser shall use
Commercially Reasonable Efforts in connection with the settling and resolving of the Company Outstanding Liabilities.
(e) In
the event that Purchaser desires to consummate a Change of Control prior to the fifth (5th) anniversary of the Merger Closing
date, Purchaser or its successor, as applicable depending upon the structure of the Change of Control, will cause the Person acquiring
Purchaser to assume Purchaser’s or its successor’s (as applicable depending upon the structure of the Change of Control) obligations,
duties and covenants under this Agreement. No later than five (5) Business Days after to the consummation of any Change of Control,
Purchaser will deliver to the Rights Agent an Officer’s Certificate, stating that such Change of Control complies with this Section 4.6(d) and
that all conditions precedent herein relating to such transaction have been complied with.
(f) Until
such time as 30-day anniversary of the Merger Closing Date with respect to the settling and resolving of the Company Outstanding Liabilities
and until such time as the first (1st) anniversary of the Merger Closing Date with respect to entering into Disposition Agreements:
(i) Purchaser shall, and shall cause its Subsidiaries to, maintain records in the ordinary course of business pursuant to record-keeping
procedures normally used by Purchaser and its Subsidiaries regarding its activities (including its resources and efforts); and (ii) to
the extent Purchaser licenses, sells, assigns or otherwise transfers intellectual property and other rights (including, without limitation,
all data, marketing authorizations and applications for marketing authorization), assets, rights, powers, privileges and Contracts, Purchaser
will require the licensee, purchaser, assignee, or transferee, as applicable to provide the information necessary for Purchaser to comply
with its obligations under this Agreement.
(g) During
the period commencing on the Merger Closing Date and ending on the first (1st) anniversary of the Merger Closing Date, upon
the reasonable written request from the Representative, Parent will provide: (i) the Representative with a written update in reasonable
detail describing the progress, status and anticipated trajectory of efforts in respect of Dispositions and the settling and resolving
of the Company Outstanding Liabilities; and (ii) the anticipated timing of receiving payments in respect of Dispositions, in each
case up to one time in a fiscal quarter of each calendar year. The Representative agrees to maintain the confidentiality of any such update
or other confidential information provided by Parent to the Representative under this Agreement; provided that the Representative may
disclose any such update or other information to the Representative Group.
ARTICLE V
AMENDMENTS
Section 5.1 Amendments
without Consent of Holders.
(a) Without
the consent of any Holders, the Representative, Parent, Purchaser and the Rights Agent, at any time and from time to time, may enter into
one or more amendments hereto, for any of the following purposes:
(i) to
evidence the succession of another Person to Parent or Purchaser and the assumption by any such successor of the covenants of Parent or
Purchaser herein as provided in Section 6.3;
(ii) to
add to the covenants of Parent and Purchaser such further covenants, restrictions, conditions or provisions as the Representative, Parent,
Purchaser and the Rights Agent will consider to be for the protection of the Holders; provided that, in each case, such provisions
do not adversely affect the interests of the Holders;
(iii) to
cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising under this Agreement; provided that, in each case,
such provisions do not adversely affect the interests of the Holders;
(iv) as
may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act of 1933, as amended,
or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, and to ensure that the
CVRs are not subject to any similar registration or prospectus requirement under applicable securities laws outside of the United States;
provided that, in each case, such provisions do not adversely affect the interests of the Holders;
(v) as
may be necessary or appropriate to ensure that the Company complies with applicable Law;
(vi) to
evidence the succession of another Person as a successor Rights Agent or the Representative and the assumption by any such successor of
the covenants and obligations of the Rights Agent or the Representative, as applicable, herein in accordance with Section 3.3
and Section 3.4; or
(vii) any
other amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, unless such addition, elimination
or change is adverse to the interests of the Holders.
(b) Without
the consent of any Holders, the Representative, Parent, Purchaser, and the Rights Agent, in their sole and absolute discretion, at any
time and from time to time, may enter into one or more amendments hereto, to reduce the number of CVRs, in the event any Holder agrees
to renounce and abandon such Holder’s rights under this Agreement in accordance with Section 2.7.
(c) Promptly
after the execution by the Representative, Parent, Purchaser and the Rights Agent of any amendment pursuant to the provisions of this
Section 5.1, Parent shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at
their addresses as they appear on the CVR Register, setting forth such amendment.
Section 5.2 Amendments
with Consent of Holders.
(a) Subject
to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holders), with
the consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the Holders, the Representative, Parent, Purchaser
and the Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of
this Agreement, even if such addition, elimination or change is materially adverse to the interests of the Holders.
(b) Promptly
after the execution by Parent, Purchaser, the Representative, and the Rights Agent of any amendment pursuant to the provisions of this
Section 5.2, Parent will mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their
addresses as they appear on the CVR Register, setting forth such amendment.
Section 5.3 Execution
of Amendments. In executing any amendment permitted by this ARTICLE V, the Rights Agent will be entitled to receive, and
will be fully protected in relying upon, an opinion of counsel selected by Parent stating that the execution of such amendment is authorized
or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s
own rights, privileges, covenants or duties under this Agreement or otherwise.
Section 5.4 Effect
of Amendments. Upon the execution of any amendment under this ARTICLE V, this Agreement will be modified in accordance
therewith, such amendment will form a part of this Agreement for all purposes and every Holder will be bound thereby. Notwithstanding
anything in this Agreement to the contrary, the Rights Agent and the Representative shall not be required to execute any supplement or
amendment to this Agreement that it has determined would adversely affect its own rights, duties, obligations or immunities under this
Agreement or, with respect to the Representative, the rights, duties, obligations or immunities of the Holders under this Agreement. No
supplement or amendment to this Agreement shall be effective unless duly executed by the Parent, Rights Agent and the Representative.
ARTICLE VI
OTHER PROVISIONS OF GENERAL APPLICATION.
Section 6.1 Notice.
Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed given when delivered in Person
or by email, or by overnight courier, or three (3) Business Days after being sent by registered or certified mail (postage prepaid,
return receipt requested), provided that with respect to notices delivered to the Representative, such notices must be delivered solely
via email, as follows:
If to the Rights Agent, to it at:
[·]
Email: [·]
With a copy (which shall not constitute notice) to:
[·]
Email: [·]
If to the Representative, to it at:
[·]
Email:
[·]
If to Parent or Purchaser, to Parent:
Concentra Biosciences, LLC
4747 Executive Drive, Suite 210
San
Diego, CA 92121
Attention: Kevin Tang
Email: [***]
With a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San
Francisco, CA 94111
Attention: Ryan A. Murr
Email: rmurr@gibsondunn.com
Any party may specify a different address by giving
notice in accordance with this Section 6.1.
Section 6.2 Notice
to Holders. Where this Agreement provides for notice to Holders, such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address
as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder will affect the sufficiency of such notice with respect to other Holders.
Section 6.3 Successors
and Assigns. Parent and Purchaser may assign any or all of its rights, interests and obligations hereunder in its sole discretion
and without the consent of any other party: (i) to any controlled Affiliate of Parent, but only for so long as it remains a controlled
Affiliate of Parent; (ii) in compliance with Section 4.6(d); or (iii) otherwise with the prior written consent of
the Acting Holders (such consent not to be unreasonably withheld, conditioned or delayed), any other Person (any permitted assignee under
clauses (i), (ii), or (iii), an “Assignee”), in each case provided that the Assignee
agrees to assume and be bound by all of the terms of this Agreement. Any Assignee may thereafter assign any or all of its rights, interests
and obligations hereunder in the same manner as Parent or Purchaser pursuant to the prior sentence. In connection with any assignment
to an Assignee described in clause (i) above in this Section 6.3 and clause (ii) above in this Section 6.3,
each of Parent or Purchaser, as applicable, (and the other assignor) shall agree to remain liable for the performance by each Assignee
(and such other assignor, if applicable) of all obligations of Parent or Purchaser, as applicable, hereunder with such Assignee substituted
for Parent or Purchaser, as applicable, under this Agreement. This Agreement will be binding upon, inure to the benefit of and be enforceable
by each of Parent’s successors and each Assignee and each of Purchaser’s successors and each Assignee, as applicable. Subject
to compliance with the requirements set forth in this Section 6.3 relating to assignments, this Agreement shall not restrict
Parent’s, Purchaser’s any Assignee’s or any of their respective successors’ ability to merge or consolidate with,
or sell, issue or dispose of its stock or other equity interests or assets to, any other Person. Each of Parent’s successors and
Assignees and each of Purchaser’s successors and Assignees, as applicable, shall expressly assume by an instrument supplemental
hereto, executed and delivered to the Rights Agent (with a copy to the Representative), the due and punctual payment of the CVR Proceeds
and the due and punctual performance and observance of all of the covenants and obligations of this Agreement to be performed or observed
by Parent or Purchaser, as applicable. The Rights Agent may not assign this Agreement without the Representative’s written consent,
except to an affiliate of the Rights Agent in connection with a corporate restructuring or to a successor Rights Agent in accordance with
the terms of this Agreement. Any attempted assignment of this Agreement or any such rights in violation of this Section 6.3
shall be void and of no effect.
Section 6.4 Benefits
of Agreement. Nothing in this Agreement, express or implied, will give to any Person (other than the Rights Agent, the Representative,
Parent, Parent’s successors and Assignees, Purchaser, Purchaser’s successors and Assignees, the Holders and the Holders’
successors and assigns pursuant to a Permitted CVR Transfer) any benefit or any legal or equitable right, remedy or claim under this Agreement
or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the foregoing. The
rights of Holders and their successors and assigns pursuant to Permitted CVR Transfers are limited to those expressly provided in this
Agreement. Notwithstanding anything to the contrary herein, the Representative shall not commence any action under this Agreement on behalf
of or to enforce the rights of the Holders except at the direction of and with the prior written consent of the Acting Holders. Except
for the rights of the Rights Agent and the Representative set forth herein, the Acting Holders will have the sole right, on behalf of
all Holders, by virtue of or under any provision of this Agreement, to institute any action or proceeding with respect to this Agreement,
and no individual Holder or other group of Holders will be entitled to exercise such rights. Reasonable expenditures incurred by such
Holders in connection with any enforcement action hereunder may be deducted from any damages or settlement obtained prior to the distribution
of any remainder to Holders generally. Holders acting pursuant to this provision on behalf of all Holders shall have no liability to the
other Holders for such actions. The Representative and all Holders (including the Acting Holders) must enforce any such legal or equitable
rights, remedies or claims under this Agreement against Parent and Purchase and not against the Rights Agent.
Section 6.5 Governing
Law; Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement, the CVRs and all actions arising under or in connection therewith shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.
(b) Each
of the parties hereto (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Chancery
Court of the State of Delaware and any state appellate court therefrom or, if (but only if) such court lacks subject matter jurisdiction,
the United States District Court sitting in New Castle County in the State of Delaware and any appellate court therefrom (collectively,
the “Delaware Courts”); and (ii) consents to service of process by first class certified mail, return receipt
requested, postage prepaid, to the address at which such party is to receive notice in accordance with Section 6.1. Each of
the parties irrevocably and unconditionally: (A) agrees not to commence any such action or proceeding except in the Delaware Courts;
(B) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Delaware Courts; (C) waives,
to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the jurisdiction or laying
of venue of any such action or proceeding in the Delaware Courts; and (D) waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in the Delaware Courts.
(c) EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY HERETO (A) MAKES
THIS WAIVER VOLUNTARILY AND (B) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS CONTAINED IN THIS Section 6.5(c).
Section 6.6 Severability.
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
shall remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid
or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such invalid or unenforceable provision.
Section 6.7 Counterparts
and Signature. This Agreement may be executed in two or more counterparts (including by an electronic scan delivered by electronic
mail), each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties hereto and delivered to the other party, it being understood that
the parties need not sign the same counterpart.
Section 6.8 Termination.
This Agreement will be terminated and of no force or effect, the parties hereto will have no liability hereunder (other than with respect
to monies due and owing by Parent or Purchaser to the Rights Agent and/or the Representative), and no payments will be required to be
made, upon the earliest to occur of: (a) the mailing by the Rights Agent to the address of each Holder as reflected in the CVR Register
of all CVR Payment Amounts (if any) required to be paid under the terms of this Agreement; (b) the delivery of a written notice of
termination duly executed by Parent, Purchaser and the Acting Holders; or (c) the 30th day following the fifth (5th)
anniversary of the Merger Closing date. For the avoidance of doubt and notwithstanding anything to the contrary, nothing herein
shall terminate or otherwise negatively affect any of the rights or remedies of the Representative Group with respect to the Holders pursuant
to this Agreement or otherwise.
Section 6.9 Entire
Agreement. This Agreement, the Merger Agreement (including the schedules, annexes and exhibits thereto and the documents and instruments
referred to therein) contain the entire understanding of the parties hereto and thereto with reference to the transactions and matters
contemplated hereby and thereby and supersede all prior agreements, written or oral, among the parties with respect hereto and thereto.
Section 6.10 Legal
Holiday. In the event that the CVR Payment Date shall not be a Business Day, then, notwithstanding any provision of this Agreement
to the contrary, any payment required to be made in respect of the CVRs on such date need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on the CVR Payment Date.
Section 6.11 Obligations
of Parent. Parent shall ensure that Purchaser, and Purchaser shall ensure that Parent, duly perform, satisfy and discharge each of
the covenants, obligations and liabilities applicable to such party under this Agreement, including the timely payment of any CVR Proceeds,
and Parent shall be jointly and severally liable with Purchaser for the performance and satisfaction of each of said covenants, obligations
and liabilities, including the timely payment of any CVR Proceeds. If, for any reason whatsoever, Purchaser shall fail or be unable to
make full and timely payment as set forth in this Agreement or perform any of its obligations under this Agreement, such payment or obligations
shall be due and payable for the purposes hereof and Parent will forthwith pay and cause to be paid in lawful currency of the United States,
or perform or cause to be performed, Purchaser’s obligations hereunder. The foregoing obligation of Parent constitutes a continuing
guarantee of payment and performance (and not merely of collection), and is and shall be absolute and unconditional under any and all
circumstances, including circumstances which might otherwise constitute a legal or equitable discharge of a guarantor and including any
amendment, extension, modification or waiver of any of Purchaser’s payment or other obligations hereunder, or any insolvency, bankruptcy,
liquidation or dissolution of Purchaser or any assignment thereby.
[Remainder of Page Left Blank Intentionally]
IN WITNESS WHEREOF, each of the parties has caused
this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.
CONCENTRA BIOSCIENCES, LLC
| By |
|
|
| Name |
Kevin Tang |
|
| Title |
Chief Executive Officer |
|
IN WITNESS WHEREOF, each of the parties has caused
this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.
CONCENTRA MERGER SUB VI, INC.
| By |
|
|
| Name |
Kevin Tang |
|
| Title |
Chief Executive Officer |
|
IN WITNESS WHEREOF, each of the parties has caused
this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.
[·]
solely in its capacity as Rights Agent
IN WITNESS WHEREOF, each of the parties has caused
this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.
[·],
solely in its capacity as Representative
SCHEDULE 1
| Family |
Program |
Cases |
| [·] |
[·] |
[·] |
Exhibit 99.1
June 8, 2025
Joseph J. Ferra, Jr.
jferra@elevationoncology.com
| Re: | Terms of Transition and Separation |
Dear Mr. Ferra:
This letter confirms the agreement
(“Agreement”) between you and Elevation Oncology, Inc. (the “Company”) concerning
the terms of your separation and offers you the separation compensation below in exchange for a general release of claims, covenant not
to sue and other promises herein. If you choose to enter into this Agreement, please sign below no earlier than the Separation Date (as
defined below), and in all events no later than the expiration date of the Consideration Period (as defined below).
1. Separation
Date: June 30, 2025, is your last day of employment with the Company (the “Separation Date”), subject
to your at-will employment through the Separation Date. The Company will treat your separation as a “CIC Qualifying Termination”
within the meaning of Section 2 of that certain Change in Control and Severance Agreement between you and the Company dated July 12,
2023 (the “Severance Agreement”), provided that a Change in Control (as defined in the Severance Agreement)
is consummated no later than six (6) months following the Separation Date (a “CIC Qualifying Event”). If
a CIC Qualifying Event does not occur, the Company will treat your separation as a “Qualifying Termination” within the meaning
of Section 1 of the Severance Agreement. By signing below, you hereby resign, effective as of the Separation Date, from all director
and officer positions you hold with the Company and any of its subsidiaries or other affiliated entities, without the need of acceptance
or any further action by the Company or its Board of Directors (the “Board”).
2. Acknowledgment
of Payment of Wages: By your signature below, you acknowledge that within twenty-four (24) hours following the Separation Date, the
Company will provide you one or more final paychecks for all wages and any other forms of compensation or payment due to you from the
Company as of the Separation Date. By signing below, you acknowledge that the Company does not owe you any other amounts. Please promptly
submit for reimbursement all final outstanding expenses, if any.
3. Separation
Compensation: In exchange for your agreement to the general release and waiver of claims and covenant not to sue set forth below and
your other promises herein, the Company agrees to provide you with the following:
a. Severance:
The Company agrees to pay you a gross amount of $625,000.00 less applicable state and federal payroll deductions, which equals twelve
(12) months of your base salary, as in effect as of the Separation Date (the “Qualifying Severance Payment”).
The Qualifying Severance Payment shall be paid in a lump sum in accordance with the Company’s regular payroll schedule, which payment
shall be made no later than the Company’s first regular payroll date following the sixtieth (60th) day after the Separation Date;
provided that this Agreement has become Effective (as defined herein).
b. COBRA:
Upon your timely election to continue your existing health benefits under COBRA, and consistent with the terms of COBRA and the Company’s
health insurance plan, the Company will, subject to Section 4(c), pay the full amount of insurance premiums to continue your existing
health benefits (the “COBRA Premiums”) until the earlier of: twelve (12) months immediately following the last
day of the calendar month containing the Separation Date; (b) the date when you become eligible for substantially equivalent health
insurance coverage in connection with new employment or self-employment; or (c) the expiration of your eligibility for continuation
coverage under COBRA; provided that if the Company liquidates or dissolves, or if COBRA continuation is otherwise no longer available,
you will be provided with the remainder of the COBRA Premiums in a lump sum cash payment, less applicable state and federal payroll deductions.
You must immediately notify the Company upon your eligibility to receive health insurance coverage from another employer. You will remain
responsible for, and must continue to pay, the portion of co-payments and similar health expenses that you would have paid had your employment
continued.
c. Vesting
Acceleration and Equity Treatment: The Company agrees to accelerate (i) certain of the vesting conditions of your RSUs (as defined
below) and (ii) a portion of your Unvested Shares (as defined below), as applicable and as described in Section 7 below.
d. Consulting
Opportunity: Following the Separation Date, the Company agrees to engage you as a consultant, pursuant to the terms and conditions
of the Consulting Agreement attached hereto as Exhibit A.
By signing below, you acknowledge
that you are receiving the separation compensation outlined in this section in consideration for waiving your rights to claims referred
to in this Agreement and that you would not otherwise be entitled to the separation compensation. Moreover, you expressly acknowledge
that the separation compensation fully satisfies any and all severance obligations the Company may have to you pursuant to the Severance
Agreement or otherwise.
4. CIC
Separation Compensation. If a CIC Qualifying Event occurs, the Company also agrees to provide you with the following if this Agreement
has become Effective:
a. CIC
Severance: The Company agrees to pay you a gross amount of $828,125.00 less applicable state and federal payroll deductions, which
equals the total of six (6) months of your base salary and 150% of your annual target bonus, each as in effect as of the Separation
Date (the “CIC Qualifying Severance Payment”). The CIC Qualifying Severance Payment shall be paid in a lump
sum no later than the CIC Qualifying Event.
b. Transaction
Bonus: The Company agrees to pay you a gross amount of $400,000.00 less applicable state and federal payroll deductions, as a transaction
bonus (the “Transaction Bonus”). The Transaction Bonus shall be paid in a lump sum on the same date as the CIC
Qualifying Severance Payment is paid.
c. COBRA:
The Company will pay you a gross amount equal to the difference between (x) eighteen (18) months of your COBRA premiums minus
(y) any COBRA premiums paid under Section 3(b) prior to the CIC Qualifying Event, less applicable state and federal deductions
(the “COBRA Lump Sum Payment”); provided that you have not become eligible for substantially equivalent health
insurance coverage in connection with new employment or self-employment. The COBRA Lump Sum Payment shall be paid in a lump sum on the
same date as the CIC Qualifying Severance Payment is paid.
d. Vesting
Acceleration: Subject to your continued service as a consultant under the Consulting Agreement through the CIC Qualifying Event, any
Unvested RSU Shares and Unvested Shares that remain unvested as of immediately prior to the CIC Qualifying Event shall vest and accelerate
immediately prior to the CIC Qualifying Event.
5. Return
of Company Data: You acknowledge and agree that, as a condition precedent to receive the separation compensation outlined above, you
must return all data of the Company of any type whatsoever that has been in your possession or control no later than the Separation Date;
provided that, if you execute the Consulting Agreement and it becomes effective on its terms, then you agree to return all data of the
Company of any type whatsoever no later than the last day you provide services to the Company as a consultant.
6. Post-Employment
Obligations: You hereby acknowledge that: (a) you continue to be bound by the attached Proprietary Information, Inventions,
Non-Competition and Non-Solicitation Agreement (Exhibit B hereto), which you previously signed; (b) as a result of your
employment with the Company, you have had access to the Company’s proprietary and/or confidential information, and you will continue
to hold all such information in strictest confidence and not make use of it on behalf of anyone; and (c) you must, and by your signature
below confirm that you shall, deliver to the Company, no later than the Separation Date, all documents and data of any nature containing
or pertaining to such information, and not take with you, or otherwise retain in any respect, any such documents or data or any reproduction
thereof.
7. Equity:
a. Restricted
Stock Units: Pursuant to your Notice of Restricted Stock Unit Awards and Restricted Stock Unit Agreements (the “RSU Award
Agreements”) with the Company and the Company’s 2021 Equity Incentive Plan (the “Plan,”
and together with the RSU Award Agreements, the “RSU Agreements”), you were granted restricted stock unit awards
settleable for up to an aggregate of 300,996 shares of the Company’s Common Stock (the “RSUs”). As of
the Separation Date, an aggregate of 232,246 shares underlying the RSUs have vested (the “Vested RSU Shares”)
and an aggregate of 68,750 shares underlying the RSUs remain unvested (the “Unvested RSU Shares”). For the avoidance
of doubt, your separation of employment on the Separation Date constitutes a Termination of Service as such term is defined in your RSU
Award Agreement, and because your employment is terminating on the Separation Date, none of the Unvested RSU Shares can ever vest or settle.
However, if you sign this Agreement, and it becomes Effective, then the Company agrees to, and hereby does, accelerate the vesting
of 25,000 shares underlying the RSUs (the “Accelerated RSUs”), which is equal to the number of shares that would
have vested had you remained employed with the Company for twelve (12) months following the Separation Date (the “Acceleration
Period”), such that on the Effective Date, the Accelerated RSUs will have vested. Further, if you sign the Consulting
Agreement and it becomes effective on its terms, then your Unvested RSU Shares as of the first vesting installment date following
the Acceleration Period will continue to vest through the end of the Service Period (as defined in the Consulting Agreement) in accordance
with the terms of the RSU Agreements. For avoidance of doubt, if you do not sign the Consulting Agreement or the Consulting Agreement
does not become effective on its terms, or if you cease providing services to the Company prior to the end of the Service Period, then
vesting of any RSUs will cease immediately as of the Separation Date or the date you cease providing services to the Company, as applicable
and you will forfeit any remaining unvested RSUs on such date. If you enter into this Agreement, your rights concerning your RSUs will
otherwise continue to be governed by the RSU Award Agreements, as amended herein.
b. Options:
Pursuant to your Stock Option Agreements with the Company and the Plan (hereafter collectively referred to as the “Stock Option
Agreements”), you were granted options to purchase an aggregate of 2,284,104 shares of the Company’s common stock
(the “Options”). The Options have vested as to an aggregate of 908,374 shares (the “Vested Shares”)
and remain unvested as to an aggregate of 1,375,730 shares (the “Unvested Shares”). You have exercised 0 of
the Vested Shares leaving 908,374 unexercised Vested Shares (the “Unexercised Vested Shares”). Because your
employment is terminating on the Separation Date, none of the Unvested Shares can ever vest. However, if you sign this Agreement, and
it becomes Effective, then the Company agrees to, and hereby does, accelerate the vesting of 537,916 Unvested Shares (the “Accelerated
Shares”), which is equal to the number of shares that would have vested had you remained employed with the Company for twelve
(12) months following the Separation Date, such that on the Effective Date, the Accelerated Shares will have vested and become exercisable.
Further, if you sign the Consulting Agreement and it becomes effective on its terms, then your Unvested Shares as of the first
vesting installment date following the Acceleration Period (as defined above) will continue to vest through the end of the Service Period
(as defined in the Consulting Agreement) in accordance with the terms the Stock Option Agreements. For avoidance of doubt, if you do not
sign the Consulting Agreement or the Consulting Agreement does not become effective on its terms, or if you cease providing services to
the Company prior to the end of the Service Period, then vesting of any Unvested Shares will cease immediately as of the Separation Date
or the date you cease providing services to the Company, as applicable and you will forfeit any remaining Unvested Shares on such date.
Per the Stock Option Agreements, you will have three (3) months following the Separation Date to exercise the Unexercised Vested
Shares and Accelerated Shares (assuming you sign this Agreement, and it becomes effective on its terms). However, if you execute this
Agreement and the Consulting Agreement and they each become effective on their terms, then the Unexercised Vested Shares, the Accelerated
Shares and any of the Unvested Shares that vest pursuant to the Consulting Agreement will remain exercisable until the earlier of (x) the
three-month anniversary of the termination of your services as a consultant, (y) a Corporate Transaction (as defined in the Plan)
and (z) the expiration date of the applicable Options. After the applicable date as described herein, you will no longer have a right
to exercise the Option as to any shares. Your rights concerning the Option will continue to be governed by the Stock Option Agreements,
as amended herein.
8. General
Release and Waiver of Claims:
a. The
payments and promises set forth in this Agreement are in full satisfaction of all accrued salary, vacation pay, bonus and commission pay,
profit-sharing, stock, stock options or other ownership interest in the Company, termination benefits or other compensation to which you
may be entitled by virtue of your employment with the Company or your separation from the Company. To the fullest extent permitted by
law, you hereby release and waive any other claims you may have against the Company and its owners, agents, officers, shareholders, employees,
directors, attorneys, insurers, professional employer organizations, subscribers, subsidiaries, affiliates, successors and assigns (collectively
“Releasees”), whether known or not known, including, without limitation, claims under any employment laws, including,
but not limited to, claims of unlawful discharge, breach of contract, breach of the covenant of good faith and fair dealing, fraud, violation
of public policy, defamation, physical injury, emotional distress, claims for additional compensation or benefits arising out of your
employment or your separation of employment, claims under Title VII of the 1964 Civil Rights Act, as amended, the Tennessee Human Rights
Act and any other laws and/or regulations relating to employment or employment discrimination, including, without limitation, claims based
on age or under the Age Discrimination in Employment Act or Older Workers Benefit Protection Act, and/or claims based on disability or
under the Americans with Disabilities Act.
b. You
hereby acknowledge that you are aware of the principle that a general release does not extend to claims that the releasor does not know
or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected
his or her settlement with the releasee. With knowledge of this principle, you hereby agree to expressly waive any rights you may have
to that effect.
c. You
and the Company do not intend to release claims that you may not release as a matter of law, including but not limited to any claims:
(i) for indemnification under any contractual indemnification agreement with the Company and/or pursuant to the Company’s bylaws
or other governing instruments; and (ii) for enforcement of this Agreement. To the fullest extent permitted by law, any dispute regarding
the scope of this general release shall be determined by an arbitrator under the procedures set forth in the arbitration clause below.
9. Covenant
Not to Sue:
a. To
the fullest extent permitted by law, at no time subsequent to the execution of this Agreement will you pursue, or cause or knowingly permit
the prosecution, in any state, federal or foreign court, or before any local, state, federal or foreign administrative agency, or any
other tribunal, of any charge, claim or action of any kind, nature and character whatsoever, known or unknown, which you may now have,
have ever had, or may in the future have against Releasees, which is based in whole or in part on any matter released by this Agreement.
b. Nothing
in this paragraph shall prohibit or impair you or the Company from complying with all applicable laws, nor shall this Agreement be construed
to obligate either party to commit (or aid or abet in the commission of) any unlawful act.
10. Protected
Rights: You understand that nothing in this Agreement, including the General Release and Waiver of Claims, Covenant Not to Sue, Non-disparagement
and Confidentiality sections contained herein, limits, impedes or restricts your ability to file a charge or complaint with the Equal
Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities
and Exchange Commission or any other federal, state or local government agency or commission (“Government Agencies”).
You further understand that this Agreement does not limit your ability to communicate with any Government Agencies or otherwise participate
and/or assist in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other
information, without notice to the Company. This Agreement does not limit your right to receive an award for information provided
to any Government Agencies or prohibit you from providing truthful information in response to a subpoena or other legal process.
11. Non-disparagement:
Subject to the Protected Rights section above, and otherwise to the fullest extent permitted by applicable law, you agree that you will
not, directly or indirectly, disparage or make negative remarks regarding Releasees or their products, services, agents, representatives,
directors, officers, shareholders, attorneys, employees, vendors, affiliates, successors or assigns, or any person acting by, through,
under or in concert with any of them, with any written or oral statement, including, but not limited to, any statement posted on social
media (including online company review sites) or otherwise on the Internet, whether or not made anonymously or with attribution.
12. Arbitration:
Except for any claim for injunctive relief arising out of a breach of a party’s obligations to protect the other’s proprietary
information, the parties agree to arbitrate, in Providence, Rhode Island through JAMS, any and all disputes or claims arising out of or
related to the validity, enforceability, interpretation, performance or breach of this Agreement, whether sounding in tort, contract,
statutory violation or otherwise, or involving the construction or application or any of the terms, provisions, or conditions of this
Agreement. Any arbitration may be initiated by a written demand to the other party. The arbitrator's decision shall be final, binding,
and conclusive. The parties further agree that this Agreement is intended to be strictly construed to provide for arbitration as the sole
and exclusive means for resolution of all disputes hereunder to the fullest extent permitted by law. The parties expressly waive any entitlement
to have such controversies decided by a court or a jury.
13. Attorneys’
Fees: If any action is brought to enforce the terms of this Agreement, the prevailing party will be entitled to recover its reasonable
attorneys’ fees, costs and expenses from the other party, in addition to any other relief to which the prevailing party may be entitled.
14. Confidentiality:
Subject to the Protected Rights section above, and otherwise to the fullest extent permitted by applicable law, the contents, terms and
conditions of this Agreement must be kept confidential by you and may not be disclosed except to your immediate family, accountant or
attorneys or pursuant to subpoena or court order. You agree that if you are asked for information concerning this Agreement, you will
state only that you and the Company reached an amicable resolution of any disputes concerning your separation from the Company. Any breach
of this confidentiality provision shall be deemed a material breach of this Agreement.
15. No
Admission of Liability: This Agreement is not and shall not be construed or contended by you to be an admission or evidence of any
wrongdoing or liability on the part of Releasees, their representatives, heirs, executors, attorneys, agents, partners, officers, shareholders,
directors, employees, subsidiaries, affiliates, divisions, successors or assigns. This Agreement shall be afforded the maximum protection
allowable under the Federal Rules of Evidence 408 and/or any other state or federal provisions of similar effect.
16. Complete
and Voluntary Agreement: This Agreement, together with any exhibits hereto and the applicable equity-related agreements, constitute
the entire agreement between you and Releasees with respect to the subject matter hereof and supersedes all prior negotiations and agreements,
whether written or oral, relating to such subject matter. You acknowledge that neither Releasees nor their agents or attorneys have made
any promise, representation or warranty whatsoever, either express or implied, written or oral, which is not contained in this Agreement
for the purpose of inducing you to execute the Agreement, and you acknowledge that you have executed this Agreement in reliance only upon
such promises, representations and warranties as are contained herein, and that you are executing this Agreement voluntarily, free of
any duress or coercion.
17. Severability:
The provisions of this Agreement are severable, and if any part of it is found to be invalid or unenforceable, including, without limitation,
any part of the General Release, Covenant Not to Sue, Non-disparagement and/or Confidentiality sections above, the other parts shall remain
fully valid and enforceable. Specifically, should a court, arbitrator, or government agency conclude that a particular claim may not be
released as a matter of law, it is the intention of the parties that the general release, the waiver of unknown claims and the covenant
not to sue above shall otherwise remain effective to release any and all other claims.
18. Modification;
Counterparts; Electronic/PDF Signatures: It is expressly agreed that this Agreement may not be altered, amended, modified, or otherwise
changed in any respect except by another written agreement that specifically refers to this Agreement, executed by authorized representatives
of each of the parties to this Agreement. This Agreement may be executed in any number of counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same instrument. Execution of an electronic or PDF copy shall have
the same force and effect as execution of an original, and a copy of a signature will be admissible in any legal proceeding as if an original.
19. Review
of Separation Agreement; Expiration of Offer: You understand that you may take up to twenty-one (21) days to consider this Agreement
(the “Consideration Period”). You and the Company further agree that any changes to this Agreement, whether
material or immaterial, do not re-start the Consideration Period. The offer set forth in this Agreement, if not accepted by you before
the end of the Consideration Period, will automatically expire. You agree that changes to this Agreement, whether material or immaterial,
do not toll or restart the Consideration Period. By signing below, you affirm that you were advised to consult with an attorney prior
to signing this Agreement. You also understand you may revoke this Agreement within seven (7) days of signing this document and that
the separation compensation to be provided to you pursuant to Paragraph 3 will be provided only after the expiration of that seven (7) day
revocation period.
20. Effective
Date: This Agreement is effective on the eighth (8th) day after you sign it and without revocation by you (the “Effective
Date”).
21. Governing
Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Rhode Island.
If you agree to abide by the
terms outlined in this Agreement, please sign this and return it to me. I wish you the best in your future endeavors.
| |
Sincerely, |
| |
|
| |
Elevation Oncology, Inc. |
| |
|
| |
|
| |
By: |
/s/ Steven A. Elms |
| |
Name: Steven A. Elms |
| |
Title: Chairman of the Board |
READ, UNDERSTOOD AND AGREED
| /s/
Joseph J. Ferra, Jr. |
|
Date: |
6/8/2025 |
| Joseph
J. Ferra, Jr. |
|
|
Exhibit 99.2
Elevation Oncology Enters into Agreement to
Be Acquired by Concentra Biosciences for $0.36 in Cash per Share Plus a Contingent Value Right
Boston, Mass. June 9, 2025
– Elevation Oncology, Inc. (Nasdaq: ELEV), an innovative oncology company focused on the discovery and development of selective
cancer therapies to treat patients across a range of solid tumors with significant unmet medical needs, today announced that it has entered
into a definitive merger agreement (the “Merger Agreement”) with Concentra Biosciences, LLC (“Concentra”), whereby
Concentra will acquire Elevation Oncology for $0.36 in cash per share of Elevation Oncology common stock (“Common Stock”),
plus one non-tradeable contingent value right (“CVR”), which represents the right to receive: (i) 100% of the closing net cash in excess of $26.4 million; and (ii) 80% of any net proceeds received within five years following closing
from any disposition of EO-1022 that occurs within one year following closing, each pursuant to the contingent value rights agreement
(the “CVR Agreement”).
The Elevation Oncology Board of Directors has unanimously determined
that the acquisition by Concentra is in the best interests of all Elevation Oncology stockholders and has approved the Merger Agreement
and related transactions.
Pursuant and subject to the terms of the Merger Agreement, a wholly
owned subsidiary of Concentra will commence a tender offer (the “Offer”) by June 23, 2025 to acquire all outstanding
shares of Common Stock. Closing of the Offer is subject to certain conditions, including the tender of Common Stock representing at least
a majority of the total number of outstanding shares (including any shares held by Concentra), the availability of at least $26.4 million
of cash (net of transaction costs, contractual payments to warrant holders and other liabilities at closing), and other customary closing
conditions. Elevation Oncology officers, directors and their respective affiliates holding approximately 5.1% of Common Stock have signed
tender and support agreements under which such parties have agreed to tender their shares in the Offer and support the merger transaction.
The merger transaction is expected to close in July 2025.
Advisors
Fenwick & West LLP is acting as legal counsel to Elevation
Oncology. Gibson, Dunn & Crutcher LLP is acting as legal counsel to Concentra.
About Elevation Oncology, Inc.
Elevation Oncology is an innovative
oncology company focused on the discovery and development of selective cancer therapies to treat patients across a range of solid tumors
with significant unmet medical needs. For more information, visit www.ElevationOncology.com.
Forward-Looking Statements
This press release contains “forward-looking statements”
within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not limited to, statements regarding Elevation
Oncology’s beliefs and expectations and statements about the Offer, the merger and related transactions contemplated by the Merger
Agreement and the CVR Agreement (the “Transactions”), the ability to complete the transactions contemplated by the Merger
Agreement, including the ability to satisfy the conditions to the consummation of the Offer contemplated thereby and the other conditions
set forth in the Merger Agreement, the timing of the Transactions, the potential effects of the proposed Transactions on Elevation Oncology
and the potential payment of proceeds to Elevation Oncology’s stockholders, if any, pursuant to the CVR Agreement. These statements
may be identified by their use of forward-looking terminology including, but not limited to, “anticipate,” “believe,”
“continue,” “could,” “estimate,” “expect,” “goal,” “intend,” “may,”
“might,” “plan,” “potential,” “predict,” “project,” “should,”
“target,” “will,” and “would,” and similar words expressions are intended to identify forward-looking
statements. Forward-looking statements are neither historical facts nor assurances of future performance and involve risks and uncertainties
that could cause actual results to differ materially from those projected, expressed or implied by such forward-looking statements. These
risks and uncertainties include, but are not limited to: the possibility that various closing conditions set forth in the Merger Agreement
may not be satisfied or waived, including uncertainties as to the percentage of Elevation Oncology’s stockholders tendering their
shares in the Offer; the possibility that competing offers will be made; the risk that the Transactions may not be completed in a timely
manner, or at all, which may adversely affect Elevation Oncology’s business and the price of its common stock; significant costs
associated with the proposed Transactions; the risk that any stockholder litigation in connection with the Transactions may result in
significant costs of defense, indemnification and liability; the risk that activities related to the CVR Agreement may not result in any
value to Elevation Oncology’s stockholders; and other risks and uncertainties discussed in Elevation Oncology’s most recent
Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission (“SEC”) on March 6, 2025 as well
as in Elevation Oncology’s subsequent filings with the SEC. As a result of such risks and uncertainties, Elevation Oncology’s
actual results may differ materially from any future results, performance or achievements discussed in or implied by the forward-looking
statements contained herein. There can be no assurance that the proposed Transactions will in fact be consummated. Elevation Oncology
cautions investors not to unduly rely on any forward-looking statements.
The forward-looking statements contained in this press release are
made as of the date hereof, and Elevation Oncology undertakes no obligation to update any forward-looking statements, whether as a result
of future events, new information or otherwise, except as expressly required by law. All forward-looking statements in this press release
are qualified in their entirety by this cautionary statement.
Additional Information and Where to Find It
The Offer described in this press release has not yet commenced, and
this press release is neither a recommendation, nor an offer to purchase nor a solicitation of an offer to sell any shares of the common
stock of Elevation Oncology or any other securities, nor is it a substitute for the tender offer materials that Concentra will file with
the SEC on commencement of the Offer. On the commencement date of the Offer, Concentra will file with the SEC a tender offer statement
on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, and Elevation Oncology will file with the
SEC a Solicitation/Recommendation Statement on Schedule 14D-9. The Offer to purchase the outstanding shares of Common Stock will only
be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule TO.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE TENDER OFFER
MATERIALS (INCLUDING THE OFFER TO PURCHASE, A LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT
ON SCHEDULE 14D-9 REGARDING THE OFFER, AS THEY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION THAT INVESTORS AND SECURITY HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING
THEIR SHARES, INCLUDING THE TERMS AND CONDITIONS OF THE OFFER.
Investors and security holders may obtain a free copy of these statements
(when available) and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests
to the information agent for the Offer, which will be named in the tender offer statement. Investors and security holders may also obtain,
at no charge, the documents filed or furnished to the SEC by Elevation Oncology under the “SEC Filings” subsection of Elevation
Oncology’s website at https://investors.elevationoncology.com. The information contained in, or that can be accessed through, Elevation
Oncology’s website is not a part of, or incorporated by reference herein. In addition to the Offer to Purchase, the related Letter
of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, Elevation Oncology files
annual, quarterly, and current reports, proxy statements and other information with the SEC. You may read any reports, statements or other
information filed by Elevation Oncology with the SEC for free on the SEC’s website at www.sec.gov.
Elevation Oncology Investor and Media Contact
Tammy Furlong
Chief Financial Officer
tfurlong@elevationoncology.com
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