false
0001526119
0001526119
2024-07-23
2024-07-23
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
July 23, 2024
Verastem,
Inc.
(Exact Name of Registrant as Specified in
Charter)
| Delaware |
|
001-35403 |
|
27-3269467 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
| 117 Kendrick Street, Suite 500, Needham, MA |
|
02494 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (781) 292-4200
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
| Title of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Common stock, $0.0001 par value per share |
|
VSTM |
|
The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On July 23, 2024, Verastem, Inc.
(the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Guggenheim Securities,
LLC and Cantor Fitzgerald & Co., as representatives of the several underwriters named in Schedule I thereto (the “Underwriters”),
relating to the underwritten offering, issuance and sale by the Company of: (i) 13,333,334 shares (the “Shares”) of the
Company’s common stock, par value $0.0001 per share (the “Common Stock”) and accompanying warrants (the “Warrants”)
to purchase up to 13,333,334 shares of Common Stock; and (ii) to certain investors, pre-funded warrants (the “Pre-Funded Warrants”)
to purchase up to 5,000,000 shares of Common Stock and accompanying Warrants to purchase 5,000,000 shares of Common Stock (collectively,
the “Offering”). All of the Firm Shares, the Pre-Funded Warrants and the Warrants will be sold by the Company. Each share
of Common Stock is being offered and sold together with an accompanying Warrant at a combined offering price to the public of $3.00, less
the underwriting discounts and commissions, and each Pre-Funded Warrant is being offered and sold together with an accompanying Common
Stock Warrant at a combined offering price to the public of $2.999, which is equal to the combined offering price per share of Common
Stock and accompanying Warrant less the $0.001 exercise price of each Pre-Funded Warrant, less the underwriting discounts and commissions.
The Company expects to receive net proceeds
from the Offering of approximately $51.1 million, after deducting underwriting discounts and commissions and estimated offering expenses.
The Offering was made pursuant to the Company’s
shelf registration statement on Form S-3 (File No. 333-275408), which was declared effective on November 20, 2023. The
closing of the Offering is expected to take place on or about July 25, 2024, subject to the satisfaction of customary closing conditions.
Each Pre-Funded Warrant will have an exercise
price equal to $0.001 per underlying share of Common Stock. Each Pre-Funded Warrant is exercisable for the number of shares of our Common
Stock stated therein and will be accompanied by Warrants with the same terms as the Warrants described below. The Pre-Funded Warrants
will not expire and are exercisable in cash or by means of a cashless exercise.
Each Warrant will have an exercise price per
underlying share of Common Stock equal to $3.50. Each Warrant is exercisable for the number of shares of our Common Stock stated therein
(or, in certain limited circumstances in lieu of a share of Common Stock, a pre-funded warrant for one share of our Common Stock at the
warrant exercise price less the exercise price of the pre-funded warrant purchased). Each Warrant will be exercisable from the date of
issuance until their expiration. The Warrants will expire 18 months from the date of issuance, and are exercisable in cash or, in certain
limited circumstances only, by means of a cashless exercise.
Each Warrant and Pre-Funded Warrant will be
exercisable, in whole or, in part, by delivering a duly executed exercise notice accompanied by
payment in full for the number of shares of Common Stock or pre-funded warrants, as applicable, purchased upon such exercise. The exercise
price and the number of shares of Common Stock issuable upon exercise of each Warrant or Pre-Funded Warrant, as applicable, is subject
to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting the Common Stock as well as upon any distribution of assets, including cash, stock or other property, to the
Company’s stockholders.
The Company may not effect the exercise of
any Warrant or Pre-Funded Warrant, and a holder will not be entitled to exercise any portion of any Warrant or Pre-Funded Warrant if,
upon giving effect to such exercise, the aggregate number of shares of Common Stock beneficially owned by the holder (together with its
affiliates) would exceed 4.99% (or such higher percentage up to 19.99%, at the election of the holder) of the number of shares of Common
Stock outstanding immediately after giving effect to the exercise, which percentage may be increased or decreased at the holder’s
election upon 61 days’ notice to the Company subject to the terms of such Warrants or Pre-Funded Warrants, as applicable, provided
that such percentage may in no event exceed 19.99%. In the event that the exercise of a Warrant would cause the holder to beneficially
own in excess of 4.99% (or such higher percentage up to 19.99%, at the election of the holder) of the total number shares of our Common
Stock outstanding immediately after giving effect to such exercise, the holder of a warrant may elect to purchase a pre-funded warrant
for one share of our Common Stock, rather than a share of Common Stock, at the Warrant exercise price less the exercise price of the pre-funded
warrant purchased.
In addition, upon the consummation of an acquisition
(as described in the Warrants and Pre-Funded Warrants, as applicable), each Warrant and Pre-Funded Warrant will automatically be converted
into the right of the holder of such Warrant or Pre-Funded Warrant, as applicable, to receive the kind and amount of securities, cash
or other property that such holders would have received had they exercised such Warrant or Pre-Funded Warrant, as applicable, immediately
prior to such acquisition, without regard to any limitations on exercise contained in the Warrant or Pre-Funded Warrants. The foregoing
description of the Pre-Funded Warrants and Warrants is qualified in its entirety by reference to the Form of Pre-Funded Warrant and
Form of Warrant filed as Exhibit 4.1 and Exhibit 4.2 to this Current Report on Form 8-K, respectively.
The Underwriting Agreement contains customary
representations, warranties, and agreements by the Company and customary conditions to closing, indemnification obligations of the Company
and the Underwriters, including for liabilities under the Securities Act of 1933, as amended (the “Securities Act”), and termination
provisions.
A copy of the Underwriting Agreement is filed
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Ropes & Gray, LLP, counsel to the
Company, has issued an opinion to the Company, dated July 25, 2024, regarding the Shares, Warrants and Pre-Funded Warrants to be
sold in the Offering. A copy of the opinion is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K, including
the exhibits hereto, shall not constitute an offer to sell or the solicitation of an offer to buy any securities of the Company, which
is being made only by means of a written prospectus meeting the requirements of Section 10 of the Securities Act, nor shall there
be any sale of the Company’s securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of such jurisdiction.
Item
9.01. Financial Statements and Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
VERASTEM, INC. |
| |
|
|
| Dated: July 25, 2024 |
By: |
/s/ Daniel W. Paterson |
| |
|
Daniel W. Paterson |
| |
|
President and Chief Executive Officer |
Exhibit 1.1
Verastem, Inc.
13,333,334 Shares of Common Stock
Pre-Funded Warrants to Purchase 5,000,000 Shares of Common Stock
Warrants to Purchase 18,333,334 Shares of Common Stock
($0.0001 par value per share)
Underwriting Agreement
July 23, 2024
Guggenheim Securities, LLC
Cantor Fitzgerald & Co.
As Representatives of the several Underwriters
listed on Schedule I hereto
c/o Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
c/o Cantor Fitzgerald & Co.
110 East 59th Street, 6th Floor
New York, New York 10022
Ladies and Gentlemen:
Verastem, Inc., a Delaware
corporation (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”),
for whom you (the “Representatives”) are acting as representatives, (i) 13,333,334 shares (the “Shares”)
of common stock, $0.0001 par value per share (“Common Stock”) of the Company, (ii) pre-funded warrants to purchase
an aggregate of 5,000,000 shares of Common Stock at an exercise price equal to $0.001 per share (the “Pre-Funded Warrants”)
in the form set forth on Exhibit A hereto, with one share of Common Stock issuable upon exercise of each Pre-Funded Warrant
and (iii) common warrants to purchase an aggregate of up to 18,333,334 shares of Common Stock at an exercise price equal to $3.50
per share in the form set forth on Exhibit B hereto (the “Warrants” and, together with the Shares and Pre-Funded
Warrants, the “Securities”). Each Share is being sold together with a Warrant to purchase one share of Common Stock.
Each Pre-Funded Warrant is being sold with a Warrant to purchase one share of Common Stock. The shares of Common Stock issuable upon exercise
of the Pre-Funded Warrants and the Warrants are herein collectively called the “Warrant Shares.” To the extent there
are no additional Underwriters listed on Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.
1. Representations
and Warranties of the Company. The Company hereby represents and warrants to, and agrees with, each Underwriter, as of the date of
this underwriting agreement (this “Agreement”), as of the Closing Date (as defined herein), as set forth below in this
Section 1.
(a) The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission thereunder (the “Act”), a shelf registration
statement (file number 333-275408) on Form S-3, not earlier than three years prior to the date hereof and such registration statement
became effective on November 20, 2023 and as of the Effective Date (as defined herein) under the Act by the Commission. Such registration
statement, as of any time, means such registration statement as amended by any post-effective amendments thereto at such time, including
the exhibits and any schedules thereto at such time, the documents incorporated by reference therein at such time pursuant to Item 12
of Form S-3 under the Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B (“Rule 430B”)
under the Act (the “Rule 430B Information”), is referred to herein as the “Registration Statement;”
provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended
by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered
the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of
Rule 430B of the Act, including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated
by reference therein at such time pursuant to Item 12 of Form S-3 under the Act and the Rule 430B Information. Any registration
statement filed pursuant to Rule 462(b) of the Act is hereinafter called the “Rule 462(b) Registration Statement,”
and after such filing the term “Registration Statement” shall include the 462(b) Registration Statement. The base prospectus
in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is herein called the
“Base Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the Base Prospectus
as so supplemented), that describes the Securities and the offering thereof, that omitted the Rule 430B Information and that was
used prior to the filing of the final prospectus supplement referred to in the following sentence is herein called a “Preliminary
Prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file with the Commission
a final prospectus supplement to the Base Prospectus relating to the Securities and the offering thereof in accordance with the provisions
of Rule 430B and Rule 424(b) of the Act. Such final prospectus supplement (including the Base Prospectus as so supplemented)
in the form filed with the Commission pursuant to Rule 424(b) is herein called the “Prospectus.” Any reference
herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act as of the date of such prospectus. “Effective Date”
shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B
or otherwise under the Act).
For purposes of this Agreement,
all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus, any Preliminary Prospectus,
the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System or any successor system thereto (“EDGAR”). All
references in this Agreement to financial statements and schedules and other information which is “described,” “contained,”
“included” or “stated” in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information
which is incorporated by reference in or otherwise deemed by the Act to be a part of or included in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
subsequent filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(the “Exchange Act”), and which is deemed to be incorporated by reference therein or otherwise deemed by the Exchange
Act to be a part thereof.
The term “Disclosure
Package” means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately prior to 7:30 p.m. New
York City time, on July 23, 2024 (the “Execution Time”), (ii) any issuer free writing prospectus, as defined
by Rule 433 of the Act (an “Issuer Free Writing Prospectus”) identified in Schedule II hereto, (iii) any
other free writing prospectus, as defined by Rule 405 (a “Free Writing Prospectus”) that the parties hereto shall
hereafter expressly agree to treat as part of the Disclosure Package and (iv) the information set forth on Schedule III.
(b) The
Preliminary Prospectus when filed and the Registration Statement as of the Effective Date and as of the Execution Time, complied or will
comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the
Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with
the requirements of the Act; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act.
(c) As
of the Effective Date, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make the statements therein not misleading. As of the Execution
Time, the Closing Date (as defined in Section 2 herein), the Disclosure Package does not, and the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Prospectus (or any supplement
thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described
as such in Section 7 hereof. There are no contracts or other documents required to be described in the Disclosure Package or the
Prospectus or filed as an exhibit to the Registration Statement which have not been described or filed as required.
(d) As
of the Execution Time and the Closing Date, as applicable, (i) the Disclosure Package, and (ii) each electronic roadshow when
taken together as a whole with the Disclosure Package, did not, does not, and will not, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package or any electronic
roadshow based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 7 hereof.
(e) The
Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information.
The Company satisfies all requirements of the Act for use of Form S-3. No stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the
Commission. No order preventing or suspending the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding
for that purpose has been instituted by the Commission.
(f) (i) At
the Effective Date and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(g) The
Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Act;
any Free Writing Prospectuses that the Company is required to file pursuant to Rule 433(d) under the Act has been, or will be,
filed with the Commission in accordance with the requirements of the Act; and each Free Writing Prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Act or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the Act.
(h) Each
Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement,
including any document incorporated by reference therein that has not been superseded or modified. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.
(i) The
copies of each Preliminary Prospectus, each Issuer Free Writing Prospectus that is required to be filed with the Commission pursuant to
Rule 433 and the Prospectus and any amendments or supplements to any of the foregoing, that have been delivered to the Underwriters
in connection with the offering of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise)
were identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T. For purposes of this Agreement, references to the “delivery” or “furnishing” of any of the
foregoing documents to the Underwriters, and any similar terms, include, without limitation, electronic delivery.
(j) All
documents filed by the Company pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and incorporated or deemed to be incorporated
by reference into the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, when they became effective
or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Act or the Exchange
Act, as applicable and were filed on a timely basis with the Commission, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(k) Each
of the Company and its significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission)
(the “Subsidiaries”) has been duly organized and is validly existing and in good standing as a corporation or other
business entity under the laws of the jurisdiction in which it is chartered or organized with full corporate, limited liability company
or limited partnership power and authority to own or lease, as the case may be, and to operate its properties and conduct its business
as described in the Registration Statement, the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to
be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse
effect on or affecting the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’
equity or results of operations of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with the consummation
of the transactions contemplated hereby (a “Material Adverse Effect”).
(l) All
the outstanding shares of capital stock or limited liability company or limited partnership interests, as applicable, of each Subsidiary
have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock or
interests of the Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or encumbrances. Except as set forth in the Registration Statement, the
Disclosure Package and the Prospectus, there are no outstanding options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities or interests for capital stock or other ownership interests
of any Subsidiary of the Company.
(m) The
Company’s authorized equity capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus
under the heading “Capitalization”; the capital stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to the terms of this Agreement, will be fully
paid and non-assessable; the Shares are duly listed, and admitted and authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the Nasdaq Capital Market; the certificates for the Shares are in valid and sufficient form;
the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the
Securities or the Warrant Shares; except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or ownership interests in the Company are outstanding; and all offers and sales by the
Company of the Company’s shares of Common Stock prior to the date hereof were at all relevant times duly registered under the Act
or were exempt from the registration requirements of the Act and were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky laws. No holder of the Securities will be subject to personal
liability for obligations of the Company solely by reason of being such a holder. The Pre-Funded Warrants and Warrants have been duly
authorized by the Company and, when executed and delivered by the Company pursuant to this Agreement, will constitute valid, legal and
binding obligations of the Company, enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The
Warrant Shares have been duly authorized and validly reserved for issuance upon exercise of the Pre-Funded Warrants and Warrants in a
number sufficient to meet the current exercise requirements and, when issued and delivered in accordance with the terms thereof, will
be validly issued, fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being
such holders.
(n) This
Agreement has been duly authorized, executed and delivered by the Company.
(o) The
Company is not and, immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Disclosure Package and the Prospectus, will not be an “investment company”
or an entity “controlled” by an “investment company”, in each case, as defined in the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder.
(p) No
consent, approval, authorization, filing with, license, registration, qualification or order of any court or governmental agency or body
is required in connection with the transactions contemplated herein, in the Pre-Funded Warrants or in the Warrants, except such as have
been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities and, upon exercise of the Pre-Funded Warrants and Warrants, the Warrant Shares by the Underwriters in the
manner contemplated herein or therein and in the Registration Statement, the Disclosure Package and the Prospectus.
(q) Neither
the issue and sale of the Securities and, upon exercise of the Pre-Funded Warrants and Warrants, the Warrant Shares nor the consummation
of any other of the transactions contemplated herein, in the Pre-Funded Warrants or in the Warrants nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation of, or constitute a default under, result in the termination, modification
or acceleration of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter, by-laws or similar organizational documents of the Company or any of its Subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its or their property is subject
or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or
any of its Subsidiaries or any of its or their properties, except, in the case of clauses (ii) and (iii) above, for any such
conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(r) Neither
the Company nor any Subsidiary is in violation or default of (i) any provision of its charter, bylaws or similar organizational documents,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order, writ or decree of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or such Subsidiary or any of its properties, assets or operations, as applicable,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(s) No
holders of securities of the Company or its Subsidiaries have rights to require the registration of such securities under the Act by reason
of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities and, upon exercise of the Pre-Funded
Warrants or the Warrants, the Warrant Shares.
(t) The
consolidated historical financial statements, including the notes thereto, of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly the financial condition,
results of operations and cash flows of the Company as of the dates and for the periods indicated (subject to normal year-end audit adjustments
for interim financial statements), and have been prepared in compliance with the applicable accounting requirements of the Act and the
Exchange Act, as applicable, and in conformity with U.S. generally accepted accounting principles (“GAAP”) applied
on a consistent basis throughout the periods involved (except for such adjustments to accounting standards and practices as otherwise
noted therein). All non-GAAP financial information included or incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus complies with the requirements of Regulation G and Item 10 of Regulation S-K under the Act, to the extent applicable;
and there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or any
other relationships with unconsolidated entities or other persons, that could reasonably be expected to affect materially the Company’s
liquidity or the availability of or requirements for its capital resources. Except as disclosed therein, there is no pro forma or as adjusted
financial information or other financial statements or supporting schedules or exhibits which are required to be included in the Registration
Statement, the Disclosure Package and the Prospectus or a document incorporated by reference therein in accordance with Regulation S-X.
(u) No
action, suit, inquiry or proceeding brought by or before any court or governmental agency, authority or body or any arbitrator (“Actions”)
involving the Company or any of its Subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened
that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except as set forth in or
contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are
no current or pending Actions that are required under the Act to be described in the Registration Statement, the Disclosure Package and
the Prospectus that are not so described therein.
(v) Each
of the Company and each of its Subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently
conducted except where failure to do so would not be reasonably expected, individually or in the aggregate, to have a Material Adverse
Effect.
(w) Ernst &
Young LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company and its Subsidiaries
within the meaning of the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight
Board (United States) and as required by the Securities Act.
(x) There
are no transfer taxes or other similar taxes, fees or charges under U.S. federal law or the laws of any U.S. state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of this Agreement, the Pre-Funded Warrants and the Warrants
or the issuance, sale or delivery by the Company of the Securities and, upon exercise of the Pre-Funded Warrants or the Warrants, the
Warrant Shares.
(y) The
Company and each of its Subsidiaries has filed all tax returns that are required to be filed or has requested extensions thereof (except
in any case in which the failure so to file would not, individually or in the aggregate, have a Material Adverse Effect and except as
set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto))
and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except (i) for any such assessment, fine or penalty that is currently being contested in good faith
and for which adequate reserves have been provided in accordance with GAAP or as would not have, individually or in the aggregate, a Material
Adverse Effect, or (ii) as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(z) No
labor problem or dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is threatened
or imminent, which would reasonably be expected to result in a Material Adverse Effect.
(aa) The
Company and each of its Subsidiaries are insured by reputable insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance insuring
the Company or any of its Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and
effect; and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(bb) No
Subsidiary of the Company is currently prohibited or restricted, directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary’s capital stock or other ownership interest, from repaying to the Company any loans
or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company
or any other Subsidiary of the Company.
(cc) The
Company and its Subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities
necessary to conduct their respective businesses. The Company and its Subsidiaries are in compliance with the terms of such licenses,
certificates, permits and other authorizations, except where the failure to so comply would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. Neither the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(dd) The
Company and its Subsidiaries maintain a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
GAAP. The Company and its Subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The
Company and its Subsidiaries’ internal controls over financial reporting are effective and the Company and its Subsidiaries are
not aware of any material weakness in their internal controls over financial reporting. The Company’s independent auditors and board
of directors have been advised of: (i) all “material weaknesses” and “significant deficiencies” (each, as
defined in Rule 12b-2 of the Exchange Act), if any, in the design or operation of internal controls which could adversely affect
the Company’s ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s internal controls (whether or not remediated); all
such material weaknesses and significant deficiencies, if any, have been disclosed in the Registration Statement, the Disclosure Package
and the Prospectus in all material respects; and since the date of the most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(ee) The
Company and its Subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that (i) are designed to ensure that material information relating to the Company and its Subsidiaries is made
known to the Company’s principal executive officer and its principal financial officer by others within those entities, especially
during the periods in which the periodic reports required under the Exchange Act are being prepared, (ii) have been evaluated by
management of the Company for effectiveness as of the end of the Company’s most recent fiscal quarter, and (iii) are effective
in all material respects to perform the functions for which they were established. Since the end of the Company’s most recent audited
fiscal year, there have been no significant deficiencies or material weaknesses in the Company’s internal control over financial
reporting, whether or not remediated, and no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ff) The
Company (i) has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities and (ii) will not, directly or indirectly, sell, bid for, or purchase the Securities
to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Securities other than
the Underwriters.
(gg) (i) The
Company and its Subsidiaries and their respective properties, assets and operations are in compliance with, and the Company and its Subsidiaries
hold all permits, authorizations and approvals required under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not, individually or in the aggregate, have a Material Adverse
Effect; there are no past, present or, to the Company’s knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that would reasonably be expected to give rise to any material costs or liabilities
to the Company or its Subsidiaries under, or to interfere with or prevent compliance by the Company or its Subsidiaries with, Environmental
Laws; except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor its Subsidiaries
(i) is the subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any
pending or, to the Company’s knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order
or (v) has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous Materials (as defined below) (as used herein, “Environmental
Law” means any U.S. federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or common law, relating to health, safety or the protection, cleanup or restoration
of the environment or natural resources, including those relating to the distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of Hazardous Materials, and “Hazardous Materials” means
any material (including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated by or
may give rise to liability under any Environmental Law).
(hh) (i) Each
“employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as
amended (“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as an
entity, whether or not incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14) of ERISA
or any entity that would be regarded as a simple employer with the Company under Section 414 of the Code) would have any liability
(each, a “Plan”) complies in form with the requirements of all applicable statutes, rules and regulations including
ERISA and the Code, and has been maintained and administered in substantial compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions to which a
statutory or administrative prohibited transaction exemption applies; and for each such Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412
of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial
assumptions; (iii) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of
ERISA) and no Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered
status” or “critical status” (within the meaning of Sections 304 and 305 of ERISA); (iv) no “reportable
event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is
reasonably expected to occur; and (v) each Plan that is intended to be qualified under Section 401(a) of the Code has received
a favorable determination or opinion letter from the IRS as to its qualification, and to the knowledge of the Company, nothing has occurred,
whether by action or by failure to act, which would cause the loss of such qualification.
(ii) There
is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes-Oxley Act”), including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(jj) (i) Neither
the Company nor the Subsidiaries, nor any director or officer of the Company or any Subsidiary nor, to the Company’s knowledge,
any employee of the Company or any Subsidiary, agent, affiliate, representative or other person acting on behalf of the Company or any
Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to
disclose any contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate for,
any U.S. federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of
any applicable law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or any Subsidiary or, to the Company’s knowledge, any affiliate of any of them, on the one hand, and
the directors, officers and stockholders of the Company or any Subsidiary, on the other hand, that is required by the Act to be described
in the Registration Statement and the Prospectus that is not so described; and (iii) neither the Company nor any Subsidiary nor any
director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person
acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption
Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient, or
securing any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary or received or retained any funds
in violation of any Anti-Corruption Laws.
(kk) The
operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(ll) (i) The
Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”) or, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in
this paragraph (ll), “Person”) that is, or is owned or controlled by a Person that is (A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the
United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor (B) located, organized or resident in a country or territory
that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, Cuba, Iran,
North Korea, Syria, the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine, or any other
Covered Region of Ukraine identified pursuant to Executive Order 14065) (the “Sanctioned Countries”); (ii) the
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person (A) to fund or facilitate any activities or
business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions
or is a Sanctioned Country; or (B) in any other manner that will result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as underwriter, advisor, investor or otherwise); (iii) the Entity represents and covenants
that, except as detailed in the Registration Statement and the Prospectus, for the past five years, it has not engaged in, is not now
knowingly engaging in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.
(mm) The
Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material
respects as required in connection with the operation of the business of the Company as currently conducted, free and clear of all material
bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries have implemented and
maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain and
protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and
data, including all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“Confidential
Data”) used in connection with their businesses. “Personal Data” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR (defined below); (iv) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “HIPAA”); (v) any “personal information” as defined by the California
Consumer Privacy Act (“CCPA”); and (vi) any other piece of information that allows the identification of such
natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health
or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those
that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review
or investigations relating to the same. The Company and its Subsidiaries are presently in material compliance with all applicable laws
or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential Data, and Personal Data
and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or modification.
(nn) The
Company and its Subsidiaries are, and at all prior times were, in material compliance with all applicable U.S. state and federal data
privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the European Union General Data Protection Regulation
(“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance with the Privacy
Laws, the Company has in place, complies with, and takes appropriate steps to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, processing, disclosure, handling, and analysis
of Personal Data and Confidential Data (the “Policies”). The Company has at all times made all disclosures to users
or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in
any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect.
The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would
reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that
imposes any obligation or liability under any Privacy Law.
(oo) The
interactive data in the eXtensible Business Reporting Language (“XBRL”) included as an exhibit to or incorporated by
reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
(pp) The
Company and its Subsidiaries have good and marketable title to all personal property owned by them, free and clear of all encumbrances
and defects except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect. Any real or personal property described in the Registration Statement, the Disclosure Package or the Prospectus as being leased
by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those matters that (A) do
not materially interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries or (B) would
not, individually or in the aggregate, have a Material Adverse Effect.
(qq) No
relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries on the one hand, and the directors, officers,
or shareholders of the Company on the other hand, which is required to be described in the Registration Statement, the Disclosure Package
and the Prospectus and which is not so described.
(rr) The
Subsidiaries listed on Schedule IV attached hereto are the only significant Subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X.
(ss) The
statistical and market-related data included or incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus are based on or derived from sources that the Company believes to be reliable and accurate. To the extent required, the Company
has obtained written consent to the use of such data from such sources.
(tt) Neither
the issuance, sale and delivery of the Securities and, upon exercise of the Pre-Funded Warrants or the Warrants, the Warrant Shares, nor
the application of the proceeds thereof by the Company as described in each of the Registration Statement, the Disclosure Package and
the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(uu) Since
the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration Statement,
the Disclosure Package and the Prospectus (i) there has not been any change in the capital stock, short-term debt or long-term debt
of the Company or any of its Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by
the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, prospects, earnings, rights, assets, management, financial position, stockholder’s
equity, or results of operations of the Company and its Subsidiaries taken as a whole; (ii) neither the Company nor any of its Subsidiaries
has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and
its Subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its
Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise
disclosed in each of the Registration Statement, the Disclosure Package and the Prospectus.
(vv) No
forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) included in any
of the Registration Statement, the Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(ww) The
Company and its Subsidiaries own, possess, license or have other valid and enforceable rights to use all patents, patent applications,
trademarks, service marks, trademark and service mark registrations, trade names, copyrights, licenses, inventions, technology, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and
other intellectual property (collectively, the “Intellectual Property”) used in or necessary for the conduct of the
Company’s business as presently conducted or proposed to be conducted as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus. Except as set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus: (a) the
Company is either the sole owner or co-owner of the Intellectual Property owned by it and has the valid and enforceable right to use such
Intellectual Property, and to the knowledge of the Company, based on the agreements with co-owners with respect to any co-owned Intellectual
Property to which the Company is a party, has neither the obligation to obtain consent to sublicense nor a duty of accounting to any co-owner,
as applicable, and there are no rights of third parties to any Intellectual Property that is owned by the Company, other than any co-owner
of any patent or patent application constituting Intellectual Property who is listed as such on the records of the U.S. Patent and Trademark
Office (“USPTO”); (b) to the knowledge of the Company, there is no infringement or misappropriation by third parties
of any Intellectual Property owned by or exclusively licensed to the Company, and no third party has infringed or misappropriated any
Intellectual Property owned by or exclusively licensed to the Company; (c) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such claim; (d) the Intellectual Property owned
by the Company and, to the knowledge of the Company, the Intellectual Property licensed to the Company, is valid, subsisting and enforceable,
there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the validity
or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(e) to the knowledge of the Company, the Company does not infringe or misappropriate, and has not infringed or misappropriated, any
third party Intellectual Property, and there is no pending or threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates third party Intellectual Property; (f) the Company is not obligated to pay a material royalty, grant
a license or option, or provide other material consideration to any third party in connection with the Intellectual Property; (g) all
employees or contractors engaged in the development of Intellectual Property on behalf of the Company have executed an invention assignment
agreement whereby such employees or contractors presently assign all of their right, title and interest in and to such Intellectual Property
to the Company, and to the knowledge of the Company no such agreement has been breached or violated; (h) to the knowledge of the
Company, no employee of the Company is in or has been in violation of any term of any employment contract, patent disclosure agreement,
non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer
where the basis of such violation relates to such employee’s employment with the Company; (i) the Company uses, and has used,
commercially reasonable efforts to appropriately maintain the confidentiality all information intended to be maintained as a trade secret;
and (j) no government funding, facilities or resources of a university, college, other educational institution or research center
was used in the development of any Intellectual Property solely owned or purported to be solely owned by the Company that would confer
any governmental agency or body, university, college, other educational institution or research center any claim or right of ownership
to any such Intellectual Property. The Company expects the product candidates described in the Registration Statement, the Preliminary
Prospectus and the Prospectus as under development by the Company to fall within the scope of the claims of one or more patents or patent
applications owned by or exclusively licensed to the Company.
(xx) (a) All
patents and patent applications owned by or exclusively licensed to the Company or under which the Company has rights have, to the knowledge
of the Company, been duly and properly filed and each issued patent is being diligently maintained; (b) the Company is unaware of
any facts that would preclude the issuance of a valid and enforceable patent on any pending patent applications included in the Intellectual
Property; (c) to the knowledge of the Company, the Company and the parties prosecuting such applications have complied or are in
the process of complying with their duty of candor and disclosure to the USPTO, and all such requirements in the relevant foreign patent
authority having similar requirements as the case may be, in connection with such patents and patent applications for which it has filing,
prosecution and/or maintenance responsibilities; and (d) to the knowledge of the Company, there is no third party patent or patent
application that contains claims that dominate or may dominate (as such term is described in 35 U.S.C. §135 and 37 C.F.R. 41.100
to 41.208) the issued claims of any patents owned or exclusively licensed to the Company or from which the issued claims of any patents
owned or exclusively licensed to the Company are derived (as such term is described in 35 U.S.C. §135 and 37 C.F.R. 42.400 to 42.412).
(yy) Except
as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company (i) does not have any material
lending or other relationship with any bank or lending affiliate of the Representatives and (ii) does not intend to use any of the
proceeds from the sale of the Securities (or from the exercise of the Pre-Funded Warrants or the Warrants) hereunder to repay any outstanding
debt owed to the Representatives or any affiliate of the Representatives.
(zz) (i) The
Company and its Subsidiaries have fee simple title to or leasehold interest in all of the properties described in the Registration Statement,
the Disclosure Package and the Prospectus as owned or leased by them and the improvements (exclusive of improvements owned by tenants)
located thereon (the “Properties”), in each case, free and clear of all liens, encumbrances, claims, security interests,
restrictions and defects, except such as are disclosed in the Registration Statement, the Disclosure Package and the Prospectus or do
not materially affect the value of such Property and do not materially interfere with the use made and proposed to be made of such Property
by the Company and any Subsidiary or would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(ii) neither the Company nor any of its Subsidiaries knows of any condemnation which is threatened and which if consummated would
reasonably be expected to have a Material Adverse Effect; (iii) to the best of the Company’s knowledge, each of the Properties
complies with all applicable codes, laws and regulations (including without limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except for such failures to comply that would not individually or in the aggregate reasonably
be expected to materially affect the value of such Property or interfere in any material respect with the use made and proposed to be
made of such Property by the Company or any Subsidiary; and (iv) to the knowledge of the Company, except as set forth in or contemplated
in the Registration Statement, the Disclosure Package and the Prospectus and, with respect to (A) below, except as would not individually
or in the aggregate reasonably be expected to materially affect the value of such Property or interfere in any material respect with the
use made and proposed to be made of such Property by the Company or any Subsidiary: (A) there are no uncured events of default, or
events that with the giving of notice or passage of time, or both, would constitute an event of default by any tenant under any of the
terms and provisions of any lease described in the Disclosure Package; and (B) no tenant under any of the leases at the Properties
has a right of first refusal to purchase the premises demised under such lease.
(aaa) The
preclinical studies and clinical trials that are described in, or the results of which are referred to in, the Registration Statement,
the Disclosure Package and the Prospectus were and, if still pending, are being conducted in all material respects in accordance with
standard accepted medical and scientific research procedures and all applicable protocols, rules and regulations to which they are
subject, including without limitation, any applicable Health Care Laws (as defined below); the descriptions of and information regarding
the results of such studies, tests and trials, and the data and results derived therefrom, described in the Registration Statement, the
Disclosure Package and the Prospectus are accurate and complete, as of the date indicated, in all material respects and fairly present
the data derived from such tests and trials, and neither the Company nor its Subsidiaries, after due inquiry, has any knowledge of any
other studies, tests, trials, publications, presentations or other information relating to the Company’s products or product candidates
not described in the Registration Statement, the Disclosure Package and the Prospectus the results of which reasonably call into question
the results described or referred to in the Registration Statement, the Disclosure Package and the Prospectus; neither the Company nor
its Subsidiaries has received any notices or other correspondence from the Food and Drug Administration of the U.S. Department of Health
and Human Services (“FDA”) or any committee thereof or from any other U.S. or foreign government or drug or medical
device regulatory agency (collectively, the “Regulatory Agencies”) requiring or threatening the termination, suspension
or material modification of any studies, tests or trials that are currently being conducted or proposed to be conducted by or on behalf
of the Company or its Subsidiaries; and the Company and its Subsidiaries have operated and currently are in compliance in all material
respects with all applicable rules, regulations and policies of the Regulatory Agencies.
(bbb) Except
as would not, individually or in the aggregate, have or may reasonably be expected to have a Material Adverse Effect: (i) neither
the Company nor its Subsidiaries has received any written notice of adverse filing, warning letter, untitled letter, FDA Form-483 or other
correspondence or notice from any Regulatory Agency or other relevant regulatory authorities, or any other court or arbitrator or U.S.
federal, state, local or foreign governmental or regulatory authority, alleging or asserting noncompliance with any applicable Health
Care Laws or Regulatory Authorizations (in each case, as defined below); (ii) the Company and its Subsidiaries, and to the Company’s
knowledge, their respective directors, officers, employees or agents, are and have been since January 1, 2016 in compliance with:
(A) applicable health care laws, including without limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.),
the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the U.S.
Civil False Claims Act (31 U.S.C. § 3729 et seq.), 18 U.S.C. §§ 286, 287, 1035, 1347, 1349 and the health care fraud criminal
provisions under HIPAA (42 U.S.C. § 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), Medicare (Title XVIII of the Social
Security Act), Medicaid (Title XIX of the Social Security Act), HIPAA, as amended by the Health Information Technology for Economic and
Clinical Health Act (42 U.S.C. § 17921 et seq.), each as amended, and the regulations promulgated thereunder; and all other comparable
local, state, federal, national, supranational and foreign laws, and the regulations promulgated thereunder, (collectively, “Health
Care Laws”); and (B) any licenses, certificates, approvals, clearances, exemptions, registrations, authorizations, certificates,
permits, and supplements or amendments thereto, required pursuant any such applicable Health Care Laws (“Regulatory Authorizations”);
(iii) the Company and its Subsidiaries possess such valid and current Regulatory Authorizations as required to conduct their respective
businesses as currently conducted, and are not in violation of any term of any such Regulatory Authorizations; (iv) neither the Company
nor any Subsidiary has received written notice that any Regulatory Authority or Governmental Authority has taken, is taking or intends
to take action to limit, suspend, modify or revoke any Regulatory Authorizations, and to the Company’s knowledge, no Regulatory
Authority or Governmental Authority is threatening such action; (v) to the Company’s knowledge, no event that has occurred
which allows, or after notice or lapse of time would reasonably be expected to allow, revocation, termination or other impairment of the
rights of the holder of any Regulatory Authorization; (vi) the Company and its subsidiaries have filed, obtained, maintained or submitted
all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any applicable
Health Care Laws or Regulatory Authorizations and all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission);
(vii) neither the Company nor its Subsidiaries has received written notice of any ongoing or pending claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal, national, state, provincial, local,
municipal, international government or other governmental, administrative or regulatory authority, governmental, administrative or regulatory
agency or body, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public or private)
or self-regulatory organization (each, a “Governmental Authority”) or third party alleging that any product, operation
or activity is in violation of any Health Care Laws or has any knowledge that any such Governmental Authority or third party is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding; (viii) neither the Company nor its Subsidiaries
or any of their respective directors, officers, employees or, to the Company’s knowledge, agents, is or has been debarred, suspended
or excluded, or has been convicted of any crime or engaged in any conduct that would result in a debarment, suspension or exclusion from
any U.S. federal or state government health care program; and (ix) the Company and its Subsidiaries are not a party to nor have any
ongoing reporting obligations pursuant to any corporate integrity agreement, deferred prosecution agreement, monitoring agreement, consent
decree, settlement order, plan of correction or similar agreement imposed by any Governmental Authority.
(ccc) Except
pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
Any certificate signed by
any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company the
number of Shares, Pre-Funded Warrants and Warrants set forth opposite the name of such Underwriter in Schedule I hereto. The combined
purchase price for each Share and accompanying Warrant shall be $2.8200 per unit. The combined purchase price for each Pre-Funded Warrant
and accompanying Warrant shall be $2.8191 per unit.
(b) [Reserved].
Delivery and Payment.
Delivery of and payment for the Securities shall be made at 10:00 AM, New York City time, on July 25, 2024, which date and time
may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time
of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall
be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless
the Representatives shall otherwise instruct. “Business Day” shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
The Company and the Representatives
shall instruct purchasers of the Pre-Funded Warrants and accompanying Warrants to make payment for the Pre-Funded Warrants and accompanying
Warrants on the Closing Date to the Company by wire transfer of same day funds payable to the account specified by the Company at a purchase
price of $2.999 per Pre-Funded Warrant and accompanying Warrant, in lieu of payment by the Underwriters for such Pre-Funded Warrants and
accompanying Warrants, and the Company shall deliver such Pre-Funded Warrants and accompanying Warrants to such purchasers on the Closing
Date in definitive form against such payment, in lieu of the Company’s obligation to deliver such Pre-Funded Warrants and accompanying
Warrants to the Underwriters; provided that the Representatives shall withhold $0.1799 per Pre-Funded Warrant and accompanying Warrant
with respect to such Pre-Funded Warrants and accompanying Warrants as an offset against the payment owed by the Representatives to the
Company with respect to the Securities hereunder.
In the event that any purchaser
of the Pre-Funded Warrants and accompanying Warrants fails to make payment to the Company for all or part of the Pre-Funded Warrants
and accompanying Warrants on the Closing Date, the Representatives agree to make a payment to the Company for such Pre-Funded Warrants
and accompanying Warrants at a price per Pre-Funded Warrant and accompanying Warrant equal to $2.8191 and the Company agrees to deliver
such Pre-Funded Warrants and accompanying Warrants to the Representatives on the Closing Date in definitive form against such payment;
provided, however, that the Representatives may elect, by written notice to the Company, to receive shares of Common Stock and accompanying
Warrants at the combined purchase price for the Securities in lieu of all or a portion of such Pre-Funded Warrants and accompanying
Warrants to be delivered to the Representatives under this Agreement.
3. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
4. Agreements.
The Company agrees with the several Underwriters that:
(a) Prior
to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives (i) when the Prospectus, any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction
or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts
to have such amendment or new registration statement declared effective as soon as practicable.
(b) If,
at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the
Disclosure Package would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify
promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend
or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in
such quantities as you may reasonably request.
(c) If,
at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event occurs as a result of
which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading,
or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder,
the Company promptly will (i) notify the Representatives of any such event; (ii) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (iii) supply any supplemented Prospectus to you in such quantities as you may reasonably
request.
(d) During
the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13,
14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(e) As
soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement
or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(g) The
Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(h) The
Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any controlled affiliate of
the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable
for, shares of Common Stock or shares of any class of capital stock of the Company or any securities convertible into, or exercisable,
or exchangeable for, any of the foregoing; or publicly announce an intention to effect any such transaction, for a period of 90 days after
the date of this Agreement. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, and the issuance of
Warrant Shares in connection with the exercise of the Pre-Funded Warrants and Warrants, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a security outstanding, or as may be contractually obligated
to be issued pursuant to agreements in effect on the date hereof and incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to employee
benefit plans of the Company referred to in the Registration Statement, the Disclosure Package and the Prospectus, (D) any shares
of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration
Statement, the General Disclosure Package and the Prospectus, (E) the filing of a registration statement on Form S-8 or other
appropriate forms, and any amendments thereto, as required by the Act, relating to the Common Stock or other equity-based securities issuable
pursuant to the Company’s equity or other incentive plans or employee stock purchase plans referred to in the Registration Statement,
the Disclosure Package and the Prospectus, (F) the filing of any resale registration statement which the Company may be contractually
obligated to file pursuant to agreements in effect on the date hereof and incorporated by reference in the Registration Statement and
(G) in connection with the acquisition by the Company or any of its Subsidiaries of the securities, business, technology, property
or other assets of another person or entity of which the Representatives have been advised in writing, or provided that the aggregate
number of shares of Common Stock that the company may issue or sell pursuant to this clause (G) shall not exceed 5% of the total
number of shares of Common Stock outstanding immediately following the completion of the transactions contemplated by this Agreement and
provided, further, that the recipient of shares of Common Stock shall execute and deliver to the Representatives a lockup letter as described
in Section 5(m).
(i) If
the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 5(m) hereof
for an officer or director of the Company, the Representatives shall issue to such officer or director of the Company a letter substantially
in the form of the Addendum hereto and provide the Company with notice of the impending release or waiver at least three Business Days
before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release
substantially in the form of Exhibit D hereto through a major news service at least two Business Days before the effective
date of the release or waiver.
(j) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or the Warrant Shares or to result in a violation of Regulation M.
(k) The
Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Securities and the Warrant Shares, including any stamp, transfer
or similar taxes in connection with the original issuance and sale of the Securities and the Warrant Shares; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the
listing of the Shares and the Warrant Shares on the Nasdaq Capital Market; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the
Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Securities, including, without limitation,
expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of roadshow
slides and graphics and travel and lodging expenses of Company representatives; (ix) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and
expenses incident to the performance by the Company of its obligations hereunder; provided, however, that the reasonable
fees and expenses of counsel for the Underwriters incurred pursuant to clauses (vi) and (vii) of this Section 4(k) shall
not exceed $20,000 in the aggregate.
(l) The
Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto
shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic
roadshow. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(m) The
Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation,
the Sarbanes-Oxley Act, and will use its reasonable best efforts to cause the Company’s directors and officers, in their capacities
as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(n) The
Company will use the net proceeds received by the Company from the sale of the Securities by it in the manner specified in the Preliminary
Prospectus and Prospectus under the caption “Use of Proceeds.”
(o) The
Company shall, for a period of one year from the Closing Date, use its commercially reasonable efforts to maintain a registration statement
covering the Warrant Shares issuable upon exercise of the Pre-Funded Warrants and the Warrants, such that the Warrant Shares, when issued,
will not be subject to resale restrictions under the Act except to the extent that the holder thereof is an affiliate of the Company.
The Company shall, at all times while any Pre-Funded Warrants and Warrants are outstanding, reserve and keep available out of the aggregate
of its authorized but unissued and otherwise unreserved shares of Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of such Pre-Funded Warrants and Warrants, the number of Warrant Shares that are initially issuable and
deliverable upon the exercise of the then-outstanding Pre-Funded Warrants and Warrants.
5. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) The
Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material
required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall have requested and caused Ropes & Gray LLP, counsel for the Company, to have furnished to the Representatives their
opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in form and substance reasonably
satisfactory to the Representatives.
(c) The
Company shall have requested and caused Goodwin Procter LLP, as counsel for the Company with respect to intellectual property matters,
to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance
reasonably satisfactory to the Representatives.
(d) The
Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure
Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such
matters.
(e) The
Company shall have furnished to the Representatives a certificate of the Company, signed by the principal executive officer and the principal
financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, and this Agreement
and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) the
Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings,
business, prospectus or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(f) The
Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time
and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory
to the Representatives.
(g) The
Company shall have furnished to the Representatives, at the Execution Time and at the Closing Date, certificates of the Company dated
respectively as of the Execution Time and as of the Closing Date, with respect to certain financial data, signed by the principal financial
or accounting officer of the Company, in form and substance satisfactory to the Representatives.
(h) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company
and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Prior
to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction
of the possible change.
(k) The
Company shall use its best efforts to cause the Shares to be listed on the Nasdaq Capital Market and to maintain such listing on the Nasdaq
Capital Market.
(l) The
FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms
or the Underwriters’ participation in same.
(m) Prior
to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C
hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule V hereto addressed
to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer
instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute
a breach of or default under the applicable Lock-Up Agreement.
(n) The
Company shall not have received an objection from the Nasdaq Capital Market with respect to the listing of additional shares notification
that it filed with the Nasdaq Capital Market in connection with the Shares and the Warrant Shares.
If any of the conditions specified
in this Section 5 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
The documents required to
be delivered by this Section 5 shall be delivered at the office of Latham & Watkins, LLP, counsel for the Underwriters,
at 12670 High Bluff Drive, San Diego, CA 92130 (or such other place as mutually may be agreed upon), on or before the Closing Date.
6. Reimbursement
of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Guggenheim
Securities, LLC on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities.
7. Indemnification
and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any amendment thereof, or in any Preliminary Prospectus, or the
Prospectus, or any Issuer Free Writing Prospectus, any roadshow used in connection with the offering of the Securities or in any amendment
thereof or supplement thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any documented legal or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or
on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the following statements set forth in the Preliminary Prospectus and the Prospectus
under the heading “Underwriting”: (i) the third paragraph thereof related to selling concessions and (ii) the first
and second paragraphs thereof under the subheading “Price Stabilization, Short Positions and Penalty Bids” related to stabilization,
syndicate covering transactions and penalty bids, constitute the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may
have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve
it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In the case
of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected
by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any relevant local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does
not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) If
at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a) hereof
effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(e) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending
the same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or by the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls
an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (e).
8. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
9. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c) As
used in this section:
“BHC Act Affiliate” has the
meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any
of the following:
(i) a “covered entity” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank
Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
10. Termination.
This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and
delivery of this Agreement and on or prior to the Closing Date: (i) trading generally shall have been suspended or materially limited
on or by any of the New York Stock Exchange or The Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by U.S. federal or New York State authorities; (iv) there shall have occurred any outbreak or
escalation of hostilities or acts of terrorism or there is a declaration of a national emergency or war by the United States or any change
in financial markets or any calamity or crisis or any substantial change in United States’ political, financial or economic conditions
that, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date, on the terms and in the manner contemplated by this Agreement, the Disclosure Package and the Prospectus;
or (v) the Representatives shall decline to purchase the Shares for any reason permitted under this Agreement.
11. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
12. Notices.
All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Guggenheim Securities, LLC, Attention: Equity Syndicate Department, 330 Madison Avenue, 8th Floor, New York,
NY 10017, or by telephone at (212) 518-9544, or by email to GSEquityProspectusDelivery@guggenheimpartners.com and to Cantor Fitzgerald &
Co., Attention: Capital Markets, 110 East 59th Street, 6th floor, New York, New York 10022; by email at prospectus@cantor.com,
with a copy to Latham & Watkins LLP, 12670 High Bluff Drive, San Diego, CA 92130, Attention: Michael Sullivan, email: Michael.Sullivan@lw.com;
or, if sent to the Company, will be mailed or delivered to Verastem, Inc., 117 Kendrick Street, Suite 500, Needham, Massachusetts
02494, or via email to dcalkins@verastem.com, with a copy to Ropes & Gray LLP, Prudential Tower, 800 Boylston Street,
Boston, MA 02199, Attention: Thomas Danielski, email: Thomas.Danielski@ropesgray.com.
13. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
14. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company, any
of its Subsidiaries or their respective stockholders, creditors, employees or any other party and (c) the Company’s engagement
of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in
any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters).
The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
16. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement or the transactions contemplated
hereby (including without limitation, any claims sounding in equity, statutory law, contract law or tort law arising out of the subject
matter hereof) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts
of laws doctrine.
17. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech.
§§301-309), as amended from time to time, the U.S. federal ESIGN Act of 2000, or other applicable law will be deemed original
signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart
of this Agreement will constitute due and sufficient delivery of such counterpart.
19. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
[Signature Pages Follow]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several Underwriters.
| |
Very truly yours, |
| |
|
| |
Verastem, Inc. |
| |
|
| |
By: |
/s/ Daniel Paterson |
| |
Name: |
Daniel W. Paterson |
| |
Title: |
President and Chief Executive Officer |
[Signature Page to Underwriting Agreement]
| The foregoing Agreement is
hereby confirmed and accepted as of the date first above written. |
|
| |
|
| Guggenheim Securities, LLC |
|
| Cantor Fitzgerald & Co. |
|
| |
|
| By: |
Guggenheim Securities, LLC |
|
| |
|
| By: |
/s/ Shiv Taylor |
|
| |
Name: Shiv Taylor, M.D. |
|
| |
Title: Senior Managing Director |
|
| |
|
| By: |
Cantor Fitzgerald & Co. |
|
| |
|
| By: |
/s/ Asif Ahmed |
|
| Name: |
Asif Ahmed |
|
| Title: |
Managing Director – Global Co-Head of ECM |
|
| |
|
| For themselves and the other several
Underwriters named in Schedule I to the foregoing Agreement. |
|
[Signature Page to Underwriting Agreement]
Schedule I
| Underwriters | |
Number
of
Shares
to be Purchased | | |
Number
of Pre-
Funded
Warrants
to be Purchased | | |
Number
of
Warrants
to be Purchased | |
| Guggenheim Securities, LLC | |
| 7,333,334 | | |
| 2,750,000 | | |
| 10,083,334 | |
| Cantor Fitzgerald & Co. | |
| 6,000,000 | | |
| 2,250,000 | | |
| 8,250,000 | |
| Total | |
| 13,333,334 | | |
| 5,000,000 | | |
| 18,333,334 | |
Schedule II
Schedule of Issuer Free Writing Prospectuses included in the Disclosure
Package: None.
Schedule III
Pricing Terms:
| 1. | The Company is selling 13,333,334 shares of Common Stock. |
| 2. | The Company is selling 5,000,000 Pre-Funded Warrants. |
| 3. | The Company is selling 18,333,334 Warrants. |
| 4. | The public offering price per share of Common Stock and accompanying Warrant is $3.00. |
| 5. | The public offering price per Pre-Funded Warrant and accompanying Warrant is $2.999. |
Schedule IV
Schedule of Significant Subsidiaries:
Verastem Europe GmbH
Verastem Securities Company
Schedule V
Schedule of Directors, Officers and Stockholders
Subject to Lock-Up:
EXHIBIT A – Form of Pre-Funded
Warrant
[See Exhibit 4.1 to this Current Report
on Form 8-K]
EXHIBIT B – Form of Warrant
[See Exhibit 4.2 to this Current Report
on Form 8-K]
EXHIBIT C – Form of Lock-Up
Agreement
[●], 2024
Guggenheim Securities, LLC
Cantor Fitzgerald & Co.
As Representatives of the several Underwriters
| c/o |
Guggenheim Securities, LLC |
| |
330 Madison Avenue |
| |
New York, NY 10017 |
| |
|
| c/o |
Cantor Fitzgerald & Co. |
| |
110 East 59th Street, 6th Floor |
| |
New York, New York 10022 |
To the addressees set forth above:
This letter agreement is being delivered to you
in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Verastem, Inc., a Delaware
corporation (the “Company”), and each of Guggenheim Securities, LLC and Cantor Fitzgerald & Co. (the “Representatives”)
as representatives of a group of Underwriters named therein, relating to an underwritten public offering of common stock, $0.0001 par
value per share (the “Common Stock”), of the Company (the “Offering”).
In order to induce you and the other Underwriters
to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of the Representatives, offer, sell,
contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by
the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned),
directly or indirectly, including the filing (or participation in the filing) of a registration statement (except for the filing of any
resale registration statement which the Company may be contractually obligated to file pursuant to agreements in effect on the date hereof
and incorporated by reference in the Registration Statement, as such term is defined in the Underwriting Agreement) with the Securities
and Exchange Commission (the “Commission”) in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder (the “Exchange Act”) with respect to, any shares of capital
stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period from the date hereof until 90 days after the date of the Underwriting Agreement
(the “Restricted Period”). The foregoing sentence shall not apply to:
(a) transactions relating to shares of Common
Stock or other securities acquired in the Offering or in open market transactions after the completion of the Offering; provided that
no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such transactions (other than as otherwise permitted pursuant to the other provisions
of this letter agreement);
(b) transfers to the Company pursuant to a
“net” or “cashless” exercise by the undersigned of outstanding equity awards pursuant to an employee benefit plan
of the Company as in effect and disclosed in the final prospectus used for the Offering, including to satisfy the exercise price or withholding
tax or remittance obligations; provided that (i) any shares of Common Stock received upon such exercise shall be subject to all of
the restrictions set forth in this letter agreement and (ii) no filing under Section 16(a) of the Exchange Act, reporting
a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period,
unless such filing indicates in the footnotes thereto that the filing relates to the exercise of equity awards, that no shares were sold
to the public by the reporting person and the shares of Common Stock received upon exercise of such securities are subject to a lock-up
agreement with the Underwriters of the Offering;
(c) the exercise of options, stock appreciation
rights or warrants to purchase shares of Common Stock pursuant to an employee benefit plan disclosed in the final prospectus used for
the Offering; provided that (i) any shares of Common Stock received upon such exercise shall be subject to all of the restrictions
set forth in this letter agreement and (ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, unless such
filing shall indicate in the footnotes thereto that such filing relates to the exercise of options, stock appreciation rights or warrants
to purchase shares of Common Stock and the shares of Common Stock received upon exercise of such securities are subject to a lock-up agreement
with the Underwriters of the Offering;
(d) transfers of shares of Common Stock or
any security convertible into Common Stock as a bona fide gift; provided that (i) no filing under Section 16(a) of the
Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made
during the Restricted Period, unless such filing indicates in the footnotes thereto that such transfer was made in connection with a bona
fide gift and the shares of Common Stock or securities convertible into Common Stock, as applicable, received pursuant to the bona fide
gift are subject to a lock-up agreement with the Underwriters of the Offering, and (ii) each donee, distributee or transferee shall
sign and deliver a lock-up letter substantially in the form of this letter agreement;
(e) distributions of shares of Common Stock
or any security convertible into Common Stock to partners, limited partners, members, managers, affiliates (within the meaning set forth
in Rule 405 under the Securities Act of 1933, as amended, and including the subsidiaries of the undersigned), stockholders or holders
of similar equity interests of the undersigned or to any investment fund or other entity that directly or indirectly controls or manages,
is under common control with, or is controlled or managed by, the undersigned or affiliates of the undersigned (including, for the avoidance
of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds controlled
or managed by such partnership) (including upon the liquidation or dissolution of the undersigned pursuant to a plan of liquidation approved
by the undersigned’s equity holders) or in the case of a trust, to a grantor or beneficiary of the trust, and such transfer does
not involve a disposition for value; provided that (i) each donee, distributee or transferee shall sign and deliver a lock-up letter
substantially in the form of this letter agreement, and (ii) no filing under Section 16(a) of the Exchange Act, reporting
a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period,
unless such filing indicates in the footnotes thereto that such transfer is a distribution to limited partners, members, stockholders
or holders of similar equity interests, that no shares of Common Stock or securities convertible into Common Stock, as applicable, were
sold to the public by the reporting person and the shares of Common Stock or securities convertible into Common Stock, as applicable,
distributed are subject to a lock-up agreement with the Underwriters of the Offering;
(f) transfers of shares of Common Stock, (i) to
any immediate family member, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned
or any of their successors upon death, or any partnership or limited liability company, the partners or members of which consist of the
undersigned and/or immediate family members or other dependents of the undersigned, and in each case such transfer does not involve a
disposition for value, or (ii) to a nominee or custodian of a person or entity to whom disposition or transfer would be permitted
under clause (f)(i) above (for purposes of this letter agreement, “immediate family” means any relationship by blood,
marriage or adoption, not more remote than first cousin); provided that in the case of any transfer pursuant to this clause (f), (i) each
donee, distributee or transferee shall sign and deliver a lock-up letter substantially in the form of this letter agreement, and (ii) no
filing by any party (donor, donee, transferor or transferee) under the Exchange Act (other than any required filing on a Form 5 made
after the expiration of the Restricted Period or, if a Form 5 filing is required to be made prior to the expiration of the Restricted
Period, such Form 5 filing is made on the latest date permitted under the Exchange Act) or other public announcement reporting a
reduction in beneficial ownership of Common Stock shall be required or shall be made voluntarily in connection with such transfer or distribution;
(g) transfers of shares of Common Stock or
any other options or warrants or other rights to acquire Common Stock or any securities exchangeable or exercisable for or convertible
into Common Stock by will or intestacy or pursuant to a domestic order divorce settlement, divorce decree or separation agreement; provided
that in the case of any transfer pursuant to (g), unless prohibited by an order of a court, (i) each donee or distributee shall sign
and deliver a lock-up letter substantially in the form of this letter, and (ii) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the
Restricted Period, unless such filing indicates in the footnotes thereto the nature of the transfer or disposition;
(h) transfers or dispositions of Common Stock
or any security convertible into or exercisable or exchangeable for Common Stock to the Company (i) pursuant to any contractual arrangement
in effect on the date of this agreement and described in the final prospectus used for the Offering that provides for the repurchase of
the undersigned’s Common Stock or other securities by the Company or (ii) in connection with the termination of the undersigned’s
employment with or service to the Company; provided that in each case no filing under Section 16(a) of the Exchange Act, reporting
a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period,
unless such filing indicates in the footnotes thereto the nature of the transfer or disposition;
(i) the establishment of a trading plan pursuant
to Rule 10b5-1 under the Exchange Act (a “Rule 10b5-1 Trading Plan”) for the transfer of shares of Common Stock,
provided that (x) such plan does not provide for the transfer of Common Stock during the Restricted Period, (y) no public announcement
or filing under the Exchange Act shall be voluntarily made by or on behalf of the undersigned or the Company during the Restricted Period
regarding the establishment of such plan, and (z); to the extent a public announcement or filing under the Exchange Act, if any, is required
by or on behalf of the undersigned or the Company regarding the establishment of a Rule 10b5-1 Trading Plan during the Restricted
Period, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such Rule 10b5-1
Trading Plan during the Restricted Period;
(j) (i) the transfer of shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock pursuant to a bona fide third party tender
offer, merger, consolidation or other similar transaction made to all holders of Common Stock and approved by the Company’s board
of directors involving a Change of Control (as defined below) and (ii) entry into any lock-up, voting or similar agreement pursuant
to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Stock or such other securities in connection
with a transaction described in (i) above, provided, that in the event that the tender offer, merger, consolidation or other such
transaction is not completed, the undersigned’s Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock shall remain subject to the terms of this letter agreement;
(k) transfers pursuant to an order of a court
or regulatory agency; provided that in the case of any transfer pursuant to (k), (i) unless prohibited by an order of a court or
regulatory agency, the undersigned must request that each transferee sign and deliver a lock-up letter substantially in the form of this
letter and (ii) any filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares
of Common Stock required to be made during the Restricted Period shall state that such transfer is pursuant to an order of a court or
regulatory agency;
(l) transfers to the Company for the purpose
of satisfying any tax or other governmental withholding obligation with respect to, or in connection with, a vesting event of the Company’s
securities, upon the exercise of the Company’s securities or upon expiration of the Company’s securities, in each case held
by the undersigned; provided that no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, unless such filing indicates in
the footnotes thereto that the shares were transferred to the Company in order to satisfy tax or other governmental withholding obligations
of the reporting person and that no shares were sold to the public by the reporting person;
(m) sales of common stock for the purpose
of satisfying any tax or other governmental withholding obligation with respect to, or in connection with, a vesting event of the Company’s
securities, upon the exercise of the Company’s securities or upon expiration of the Company’s securities, in each case held
by the undersigned; provided that no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, unless such filing indicates in
the footnotes thereto that the shares were sold in order to satisfy tax or other governmental withholding obligations of the reporting
person; or
(n) in connection with sales of Common Stock
made pursuant to a Rule 10b5-1 Trading Plan that has been entered into by the undersigned prior to the date of this letter agreement;
provided that (i) such Rule 10b5-1 Trading Plan was established by the undersigned prior to the execution of this letter agreement,
a copy of such Rule 10b5-1 Trading Plan was provided to the Underwriters prior to the execution of this letter agreement, (ii) such
Rule 10b5-1 Trading Plan will not be amended or otherwise modified during the Restricted Period, and (iii) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made
during the Restricted Period, unless such filing indicates in the footnotes thereto that the shares were sold pursuant to such Rule 10b5-1
Trading Plan.
For purposes of clause (j) above, “Change
of Control” means any bona fide third party tender offer, merger, consolidation or other similar transaction, in one transaction
or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of
the Exchange Act) or group of persons, other than the Company, becomes the beneficial owner (as defined Rule 13d-3 and 13d-5 of the
Exchange Act) of more than 50% of total voting power of the voting stock of the Company (or the surviving entity).
Whether or not the Offering actually occurs depends
on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the Underwriters. The undersigned understands that if (1) the Company withdraws
the registration statement relating to the Offering, (2) the Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, (3) the
Representatives, on behalf of the Underwriters, advise the Company, or the Company advises the Representatives, in writing, prior to the
execution of the Underwriting Agreement, that they have determined not to proceed with the Offering or (4) the closing of the Offering
shall not have occurred on or before July 31, 2024, the undersigned shall be released from all obligations under this letter agreement.
The undersigned hereby consents to receipt of this
letter agreement in electronic form and understands and agrees that this letter agreement may be signed electronically. In the event that
any signature is delivered by electronic mail, or otherwise by electronic transmission evidencing an intent to sign this letter agreement,
such electronic mail or other electronic submission shall create a valid and binding obligation of the undersigned with the same force
and effect as if such signature were an original. Execution and delivery of this lock-up agreement by electronic mail or other electronic
transmission is legal, valid and binding for all purposes.
| |
Very truly yours, |
|
| |
|
|
| |
|
|
| |
Name of Securityholder (Print exact name) |
|
| |
|
|
| |
By: |
|
|
| |
|
Signature |
|
| |
|
|
| |
If not signing in an individual capacity: |
|
| |
|
|
| |
|
|
| |
Name of Authorized Signatory (Print) |
|
| |
|
|
| |
|
|
| |
Title of Authorized Signatory (Print) |
|
(indicate capacity of person signing if signing
as custodian, trustee, or on behalf of an entity)
EXHIBIT D – Form of Press
Release
Verastem, Inc.
[Date]
Verastem, Inc. (the “Company”) announced today that
Guggenheim Securities, LLC and Cantor Fitzgerald & Co., the joint book-running managers in the Company’s recent public
sale of shares of common stock and pre-funded warrants to purchase shares of common stock, is [waiving] [releasing] a lock-up restriction
with respect to [ ] shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the
Company. The [waiver] [release] will take effect on [ ], [ ] 2024, and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in
the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United
States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
ADDENDUM – Form of Waiver of Lock-Up
Verastem, Inc.
Public Offering of Common Stock
[●], 2024
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection
with the offering by Verastem, Inc. (the “Company”) of [ ] shares of common stock, $0.0001 par value per share, of the
Company (the “Common Stock”), warrants to purchase [ ] shares of Common Stock, and pre-funded warrants to purchase [ ] shares
of Common Stock and the lock-up letter dated [ ], 2024 (the “Lock-up Letter”), executed by you in connection with such offering,
and your request for a [waiver] [release] dated [ ], 2024, with respect to [ ] shares of Common Stock (the “Shares”).
Guggenheim Securities, LLC and Cantor Fitzgerald &
Co. hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares,
effective [ ], 2024; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending
[waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release].
This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby,
the Lock-up Letter shall remain in full force and effect.
Yours very truly,
[Signature of Guggenheim Securities, LLC Representative]
[Name and title of Guggenheim Securities, LLC
Representative]
[Signature of Cantor Fitzgerald & Co.
Representative.]
[Name and title of Cantor Fitzgerald &
Co. Representative.]
cc: Verastem, Inc.
Exhibit 4.1
PRE-FUNDED WARRANT TO PURCHASE STOCK
Company:
Verastem, Inc., a Delaware corporation
Warrant
No. 2024-[___]
Number
of Shares: [___], subject to adjustment
Type/Series of
Stock: Common Stock, $0.0001 par value per share
Issue
Date: July 25, 2024
THIS
WARRANT CERTIFIES THAT, for good and valuable consideration, [___] (together with any successor or permitted assignee or transferee
of this warrant to purchase stock (this “Warrant”) or of any shares issued upon exercise hereof, “Holder”)
is entitled, at any time on or after the above-referenced Issue Date, to purchase up to the above-stated number of fully paid and non-assessable
shares (the “Shares”) of the above-stated Type/Series of Stock (the “Class”)
of the above-named company (the “Company”) until this Warrant is exercised in full, all as set forth above
and as adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in
this Warrant. The aggregate exercise price of this Warrant of $[___], except for a nominal exercise price of $0.001 per Warrant Share
(as defined below), was paid to the Company on or prior to the date of issuance of this Warrant, and consequently, no additional consideration
(other than the nominal exercise price of $0.001 per Warrant Share) shall be required to be paid by Holder to effect any exercise of
this Warrant. Holder shall not be entitled to return or refund of all, or any portion, of such prepaid aggregate exercise price under
any circumstance or for any reason whatsoever. The remaining unpaid exercise price per share of Common Stock under this Warrant shall
be $0.001, subject to adjustment as provided herein (the “Warrant Price” or “Exercise Price”).
SECTION 1. EXERCISE.
1.1 Method
of Exercise; Delivery of Warrant Shares. Holder may at any time and from time to time exercise this Warrant, in whole or in part,
by delivering to the Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form
attached hereto as Appendix 1 and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2,
wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the
aggregate Warrant Price for the Shares being purchased (such date of delivery, the “Exercise Date”). Notwithstanding
any contrary provision herein, if this Warrant was originally executed and/or delivered electronically, in no event shall Holder be required
to surrender or deliver an ink-signed paper copy of this Warrant in connection with its exercise hereof or of any rights hereunder, nor
shall Holder be required to surrender or deliver a paper or other physical copy of this Warrant in connection with any exercise hereof.
Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a new
warrant evidencing the right to purchase the remaining number of Warrant Shares (any such new warrant, a “New Warrant”),
which New Warrant shall in all other respects be identical with this Warrant. The Company shall cause the shares underlying the Warrant
(the “Warrant Shares”) purchased hereunder to be transmitted by the Transfer Agent to the Holder by the date
that is one (1) Trading Day after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share
Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within one (1) Trading Day following delivery of the Notice of Exercise. If the Company fails to cause the Transfer
Agent to transmit to the Holder the Warrant Shares pursuant to this section by the Warrant Share Delivery Date and the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”) but did not receive by the Warrant
Share Delivery Date, then the Company shall, within two (2) Trading Days after the Holder’s request and in the Holder’s
sole discretion, either (1) pay in cash to the Holder an amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased, at which point the Company’s obligation to issue and deliver
such Warrant Shares shall terminate or (2) promptly honor its obligation to deliver to the Holder or its designee the Warrant Shares
and pay cash to the Holder in an amount equal to the excess (if any) of Holder’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased in the Buy-In, less the product of (A) the number of shares of Common Stock
purchased in the Buy-In, times (B) the closing sale price of a share of Common Stock on the Exercise Date.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Transfer Agent”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity, or if none, the Company.
1.2 Cashless
Exercise. On any exercise of this Warrant, in lieu of payment of the aggregate Warrant Price in the manner as specified in Section 1.1
above, but otherwise in accordance with the requirements of Section 1.1, Holder may elect to receive Shares equal to the value of
this Warrant, or portion hereof as to which this Warrant is being exercised. Thereupon, the Company shall issue to the Holder such number
of fully paid and non-assessable Shares as are computed using the following formula:
X = Y(A-B)/A
where:
| |
|
X = |
the number of Shares to be issued to the Holder; |
| |
|
|
| |
|
Y = |
the number of Shares with respect to which this Warrant
is being exercised (inclusive of the Shares surrendered to the Company in payment of the aggregate Warrant Price); |
| |
|
|
| |
|
A = |
the fair market value (as determined pursuant
to Section 1.3 below) of one Share; and |
| |
|
|
| |
|
B = |
the Warrant Price. |
1.3 Fair
Market Value. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “Trading Market”), the fair market value of a Share shall be
the closing price or last sale price of a share of the Class reported for the Business Day (as defined below) immediately before
the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not
then traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable
good faith judgment.
1.4 Delivery
of New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1 or 1.2 above,
if this Warrant has not been fully exercised and has not expired, the Company shall deliver to Holder a New Warrant of like tenor representing
the Shares not so acquired, which may be delivered electronically.
1.5 Replacement
of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and
amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall,
within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
1.6 Treatment
of Warrant Upon Acquisition of Company.
(a) Acquisition.
For the purpose of this Warrant, “Acquisition” means any transaction or series of related transactions involving:
(i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any
merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively
to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity
as such immediately prior to such merger, consolidation or reorganization, own less than fifty percent (50%) of the Company’s (or
the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization (or,
if such Company stockholders beneficially own greater than fifty percent (50%) of the outstanding voting power of the surviving or successor
entity as of immediately after such merger, consolidation or reorganization, such surviving or successor entity is not the Company);
or (iii) any sale or other transfer by the stockholders of the Company of shares representing greater than fifty percent (50%) of
the Company’s then-total outstanding combined voting power.
(b) Treatment
of Warrant at Acquisition. In the event of an Acquisition and if Holder has not exercised this Warrant pursuant to Section 1
above as to all Shares, then, following such Acquisition, the Holder shall receive upon exercise hereof the kind and amount of securities,
cash or other property which the Holder would have been entitled to receive (the “Alternate Consideration”)
pursuant to such Acquisition if such exercise had taken place immediately prior to such Acquisition. In any such case, appropriate adjustment
(as reasonably determined in good faith by the Board of Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the Holder, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Warrant. The Company shall
not effect any Acquisition in which the Company is not the surviving entity or the Alternate Consideration includes securities of another
entity unless any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall
assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder
may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply
to subsequent transactions analogous to an Acquisition.
1.7 Limitations
on Exercise.
Notwithstanding anything
to the contrary herein, the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this
Warrant, for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to
such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, its Affiliates and
any Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed [[9.99%]//[4.99%]]1
(the “Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock of the
Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder
and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed
the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise.
For purposes of this paragraph, beneficial ownership and whether a Holder is a member of a Section 13(d) group shall be calculated
and determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding
shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s
most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, filed with the Commission prior
to the date hereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within
one (1) Trading Day confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder since the date as of which such number of outstanding shares of Common
Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to
any other percentage not in excess of 19.99% specified in such notice; provided that any such increase will not be effective until the
sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 1.7, the aggregate number of
shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members
of a Section 13(d) group with such Holder or its Affiliates shall include the shares of Common Stock issuable upon: (x) the
exercise of this Warrant with respect to which such determination is being made plus the remaining unexercised and non-cancelled portion
of this Warrant but taking into account the limitations on exercise contained herein, but shall exclude the number of shares of Common
Stock which would otherwise be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant but for
the limitations on exercise contained herein; and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled
portion of any other securities of the Company beneficially owned by the Holder or any of its Affiliates and other Persons who are members
of a Section 13(d) group with such Holder or its Affiliates that do not have voting power (including without limitation any
securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any
debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock), but shall exclude any such securities subject to any further
limitation on conversion or exercise analogous to the limitation contained herein. This Section 1.7 shall not restrict the number
of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration
that such Holder may receive in the event of an Acquisition as contemplated in Section 1.6 of this Warrant. For purposes of clarity,
the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to
be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated
thereunder or Section 16 of the Exchange Act Rule 16a-1(a)(1) promulgated thereunder. No prior inability to exercise this
Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any
subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 1.7 to the extent necessary to correct this paragraph or any portion of
this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1.7
or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this
paragraph may not be waived and shall apply to a successor holder of this Warrant.
1 NTD: Each Investor to confirm applicable Maximum Percentage.
SECTION 2. ADJUSTMENTS TO THE SHARES AND
WARRANT PRICE.
2.1 Stock
Dividends, Splits, Etc. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class or other securities or property (other than cash), then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder
would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides
the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares of the
Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be proportionately decreased.
2.2 Reclassification,
Exchange, Combinations or Substitution. Upon any event whereby all of the outstanding shares of the Class are reclassified,
exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from
and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that
Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment
thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly
apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
2.3 Adjustment
for Cash Distributions.
(a) If
the Company, prior to the exercise in whole or expiration of this Warrant, pays a cash distribution to all holders of its Common Stock,
then the number of Warrant Shares issuable upon the exercise of this Warrant shall be adjusted in accordance with the formula:
where:
W’ = the adjusted number of Warrant
Shares issuable upon exercise of the Warrant;
W = the number of Warrant
Shares then issuable upon exercise of the Warrant;
M
= the fair market value (as determined pursuant to Section 1.3) per Share on the applicable record date; and
F = the amount of cash or fair market
value on the record date of the evidences of its indebtedness, assets, rights, warrants or other securities to be distributed in respect
of one Share as determined in good faith by the Board of Directors of the Company.
(b) The
adjustment pursuant to this Section 2.3 shall be made successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of holders entitled to receive the distribution.
2.4 No
Fractional Share. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall
be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest by (i) the
fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective Warrant
Price.
2.5 Notice/Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, Class and/or number of Shares, the Company, at the Company’s
expense, shall notify Holder in writing within a reasonable time setting forth the adjustments to the Warrant Price, Class and/or
number of Shares and facts upon which such adjustment is based. The Company shall, upon written request from Holder, furnish Holder with
a certificate of its Chief Financial Officer, including computations of such adjustment and the Warrant Price, Class and number
of Shares in effect upon the date of such adjustment.
2.6 Purchase
Rights. If at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”),
then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder
could have acquired if Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that to the extent that Holder’s right to participate in any such Purchase Right would result in Holder, its
Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding the Maximum
Percentage then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase
Right to such extent shall be held in abeyance for the benefit of Holder until such time or times as its right thereto would not result
in Holder, its Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding
the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold
on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been
no such limitation).
2.7 Registration
Under the Securities Act. This Warrant, as initially issued by the Company, is offered and sold pursuant to the Registration Statement
(as defined below). As of the Issue Date, the Warrant Shares are issuable under the Registration Statement. Accordingly, the Warrant
and, assuming issuance pursuant to the Registration Statement or an exchange meeting the requirements of Section 3(a)(9) of
the Exchange Act as in effect on the Issue Date, the Warrant Shares, are not “restricted securities” under Rule 144
promulgated under the Securities Act of 1933, as amended.
“Registration
Statement” means the Company’s registration statement on Form S-3 (File No. 333-275408), which was declared
effective by the Securities and Exchange Commission on November 20, 2023.
2.8 No
Voting Rights. Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant.
SECTION 3. REPRESENTATIONS AND COVENANTS
OF THE COMPANY.
3.1 Representations
and Warranties. The Company represents and warrants to, and agrees with, the Holder as follows:
(a) All
Shares which may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized
and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise
in full of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed.
3.2 Notice
of Certain Events. If the Company proposes at any time to:
(a) declare any
dividend or distribution upon the outstanding shares of the Class, whether in cash, property, stock, or other securities and whether
or not a regular cash dividend;
(b) offer for
subscription or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series
of the Company’s stock (other than pursuant to contractual pre-emptive rights);
(c) effect any
reclassification, exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class; or
(d) effect an
Acquisition or to liquidate, dissolve or wind up;
then, in connection with each such event, the
Company shall give Holder notice thereof at the same time and in the same manner as it gives notice thereof to holders of the outstanding
shares of the Class.
The Company will also provide information requested
by Holder from time to time, within a reasonable time following each such request, that is reasonably necessary to enable Holder to comply
with Holder’s accounting or reporting requirements.
SECTION 4. MISCELLANEOUS.
4.1 Term.
(a) Term.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time.
(b) Reserved.
4.2 Compliance
with Securities Laws on Transfer. Subject to compliance with all applicable securities laws, the Company shall, or will cause its
Transfer Agent to, record the transfer of all or any portion of this Warrant in its or their records, upon surrender of this Warrant,
and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a New Warrant to purchase Common Stock
in substantially the form of this Warrant evidencing the portion of this Warrant so transferred shall be issued to the transferee, and
a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and
obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer
Agent to, prepare, issue, and deliver at the Company’s own expense any New Warrant under this Section 4.2. Until due presentment
for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder of this Warrant for all purposes
and the Company shall not be affected by any notice to the contrary.
4.3 Notices.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or
certified mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed
in writing by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier
fee prepaid, in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company
or such Holder from time to time in accordance with the provisions of this Section 4.3. All notices to Holder shall be addressed
as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:
| |
|
| |
[___] |
| |
Attn: [____] |
| |
[Address] |
| |
Telephone: [____] |
| |
Email address: [____] |
Notice to the Company shall
be addressed as follows until Holder receives notice of a change in address:
| |
Verastem, Inc. |
| |
Attn: Chief Financial Officer |
| |
117 Kendrick Street, Suite 500 |
| |
Needham, MA 02494 |
| |
Telephone: (781) 469-1694 |
| |
Email: dcalkins@verastem.com |
| |
|
| |
With a copy (which shall not constitute
notice) to: |
| |
|
| |
Ropes & Gray LLP |
| |
Attn: Thomas J. Danielski |
| |
Prudential Tower |
| |
800 Boylston Street |
| |
Boston, MA 02199 |
| |
Telephone: (617) 951-7000 |
| |
Email:
thomas.danielski@ropesgray.com |
| |
|
4.4 Amendment
and Waiver. This Warrant and any term hereof may be amended or otherwise changed, waived, discharged or terminated (either generally
or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which
enforcement of such amendment or other change, waiver, discharge or termination is sought.
4.5 Attorneys’
Fees. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.
4.6 Counterparts;
Facsimile/Electronic Signatures. This Warrant may be executed by one or more of the parties hereto in any number of separate counterparts,
all of which together shall constitute one and the same instrument. The Company, Holder and any other party hereto may execute this Warrant
by electronic means and each party hereto recognizes and accepts the use of electronic signatures and the keeping of records in electronic
form by any other party hereto in connection with the execution and storage hereof. To the extent that this Warrant or any agreement
subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically, it shall be binding to the same
extent as though it had been executed on paper with an original ink signature, as provided under applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed, signed, stored or delivered electronically
shall not prevent the transfer by any Holder of this Warrant pursuant to, or the enforcement of, the terms hereof.
4.7 Headings.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision
of this Warrant.
4.8 Business
Days. “Business Day” is any day that is not a
Saturday, Sunday or a day on which the Nasdaq Capital Market and commercial banks in the City of New York are closed.
SECTION 5. GOVERNING LAW, VENUE, JURY
TRIAL WAIVER, AND JUDICIAL REFERENCE.
5.1 Governing
Law. This Warrant shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
5.2 Jurisdiction
and Venue. The Company and Holder each submit to the exclusive jurisdiction of the state and federal courts in the State of New York;
provided, however, that nothing in this Warrant shall be deemed to operate to preclude Holder from bringing suit or taking other legal
action in any other jurisdiction to enforce a judgment or other court order in favor of Holder. The Company expressly submits and consents
in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby waives any objection that it
may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such
legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints,
and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made in
accordance with Section 4.3 of this Warrant.
5.3 Jury
Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND HOLDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS WARRANT, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES’ AGREEMENT TO THIS WARRANT. EACH PARTY HAS REVIEWED THIS WAIVER WITH
ITS COUNSEL.
5.4 Survival.
This Section 5 shall survive the termination of this Warrant.
[Remainder of page left blank intentionally]
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this
Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
| |
| |
| “COMPANY” | |
| |
| |
| VERASTEM, INC. | |
| | |
| By: |
| |
| |
| |
| Name: |
Daniel Paterson | |
| Title: |
President and Chief Executive Officer | |
[Signature
Page to the Pre-Funded Warrant]
APPENDIX 1
FORM OF NOTICE OF EXERCISE
1. The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Verastem, Inc. (the “Company”)
in accordance with the attached Pre-Funded Warrant To Purchase Stock (the “Warrant”), and tenders payment of
the aggregate Warrant Price for such shares as follows:
| | |
|
| | [
] |
Wire transfer of immediately available funds to the Company’s
account |
| | |
|
| | [
] |
Cashless Exercise pursuant to Section 1.2 of the Warrant |
| | |
|
| | [
] |
Other [Describe] __________________________________________ |
2. Please
deliver to the Holder Shares in accordance with the terms of the Warrant. The Warrant Shares shall be delivered to the following DWAC
Account Number:________________.
3. By its delivery of this
Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder
will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 1.7 of the Warrant to which this notice relates.
Capitalized terms used herein and not otherwise defined herein have
the respective meanings set forth in the Warrant.
| |
HOLDER: |
| |
|
| |
|
| |
|
|
| |
By: |
|
| |
|
|
| |
Name: |
|
| |
|
|
| |
Title: |
|
| |
|
|
| |
(Date): |
|
Schedule 1
Exhibit 4.2
WARRANT TO PURCHASE STOCK
Company: Verastem, Inc., a Delaware corporation
Warrant No. 2024-[___]
Number of Shares: [___], subject to adjustment
Type/Series of Stock: Common Stock, $0.0001 par value
per share
Warrants Price (“Exercise Price”): $3.50 per Share,
subject to adjustment as provided herein
Issue Date: July 25, 2024
Expiration Date: January 25, 2026
THIS WARRANT CERTIFIES THAT,
for good and valuable consideration, [___] (together with any successor or permitted assignee or transferee of this warrant to purchase
stock (this “Warrant”) or of any shares issued upon exercise hereof, “Holder”) is
entitled, to purchase up to the above-stated number of fully paid and non-assessable shares (the “Shares”)
of the above-stated Type/Series of Stock (the “Class”) of the above-named company (the “Company”)
at the above stated Exercise Price, , all as set forth above and as adjusted pursuant to Section 2 of this Warrant, subject to the
provisions and upon the terms and conditions set forth in this Warrant.
SECTION 1. EXERCISE.
1.1 Method
of Exercise; Delivery of Warrant Shares. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part,
at any time or times on or after the Issue Date and on or before the Expiration Date, by delivering to the Company the original of this
Warrant together with a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 and, unless at
the time of exercise there is no effective registration statement registering, or the prospectus contained therein is not available for
the issuance of the Warrant Shares (as defined below) to the Holder and the Holder is exercising this Warrant pursuant to a cashless
exercise set forth in Section 1.2, wire transfer of same-day funds (to an account designated by the Company), or other form of payment
acceptable to the Company for the aggregate Exercise Price for the Shares being purchased (such date of delivery, the “Exercise
Date”). Notwithstanding any contrary provision herein, if this Warrant was originally executed and/or delivered electronically,
in no event shall Holder be required to surrender or deliver an ink-signed paper copy of this Warrant in connection with its exercise
hereof or of any rights hereunder, nor shall Holder be required to surrender or deliver a paper or other physical copy of this Warrant
in connection with any exercise hereof. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the
original Warrant and issuance of a new warrant evidencing the right to purchase the remaining number of Warrant Shares (any such new
warrant, a “New Warrant”), which New Warrant shall in all other respects be identical with this Warrant. The
Company shall cause the shares underlying the Warrant (the “Warrant Shares”) purchased hereunder to be transmitted
by the Transfer Agent to the Holder by the date that is one (1) Trading Day after the delivery to the Company of the Notice of
Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder
shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price
(other than in the case of a cashless exercise) is received within one (1) Trading Day following delivery of the Notice of Exercise.
If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to this section by the Warrant
Share Delivery Date and the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”)
but did not receive by the Warrant Share Delivery Date, then the Company shall, within two (2) Trading Days after the Holder’s
request and in the Holder’s sole discretion, either (1) pay in cash to the Holder an amount equal to the Holder’s total
purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased, at which point the Company’s
obligation to issue and deliver such Warrant Shares shall terminate or (2) promptly honor its obligation to deliver to the Holder
or its designee the Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of Holder’s total purchase
price (including brokerage commissions, if any) for the shares of Common Stock so purchased in the Buy-In, less the product of (A) the
number of shares of Common Stock purchased in the Buy-In, times (B) the closing sale price of a share of Common Stock on the Exercise
Date.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Transfer Agent”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity, or if none, the Company.
1.2 Cashless
Exercise. If, and only if, at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance or resale of the Warrant Shares to or by Holder, then on any exercise of this Warrant,
in lieu of payment of the aggregate Exercise Price in the manner as specified in Section 1.1 above, but otherwise in accordance
with the requirements of Section 1.1, Holder may elect to receive Shares equal to the value of this Warrant, or portion hereof as
to which this Warrant is being exercised. Thereupon, the Company shall issue to the Holder such number of fully paid and non-assessable
Shares as are computed using the following formula:
X = Y(A-B)/A
where:
| |
X = |
the number of Shares to be issued to the Holder; |
| Y = | the
number of Shares with respect to which this Warrant is being exercised (inclusive of the
Shares surrendered to the Company in payment of the aggregate Exercise Price); |
| A = | the
fair market value (as determined pursuant to Section 1.3 below) of one Share; and |
1.3 Fair
Market Value. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “Trading Market”), the fair market value of a Share shall be
the closing price or last sale price of a share of the Class reported for the Business Day (as defined below) immediately before
the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not
then traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable
good faith judgment.
1.4 Delivery
of New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1 or 1.2 above,
if this Warrant has not been fully exercised and has not expired, the Company shall deliver to Holder a New Warrant of like tenor representing
the Shares not so acquired, which may be delivered electronically.
1.5 Replacement
of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and
amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall,
within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
1.6 Treatment
of Warrant Upon Acquisition of Company.
(a) Acquisition.
For the purpose of this Warrant, “Acquisition” means any transaction or series of related transactions involving:
(i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any
merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively
to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity
as such immediately prior to such merger, consolidation or reorganization, own less than fifty percent (50%) of the Company’s (or
the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization (or,
if such Company stockholders beneficially own greater than fifty percent (50%) of the outstanding voting power of the surviving or successor
entity as of immediately after such merger, consolidation or reorganization, such surviving or successor entity is not the Company);
or (iii) any sale or other transfer by the stockholders of the Company of shares representing greater than fifty percent (50%) of
the Company’s then-total outstanding combined voting power.
(b) Treatment
of Warrant at Acquisition. In the event of an Acquisition and if Holder has not exercised this Warrant pursuant to Section 1
above as to all Shares, then, following such Acquisition, the Holder shall receive upon exercise hereof the kind and amount of securities,
cash or other property which the Holder would have been entitled to receive (the “Alternate Consideration”)
pursuant to such Acquisition if such exercise had taken place immediately prior to such Acquisition. In any such case, appropriate adjustment
(as reasonably determined in good faith by the Board of Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the Holder, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Warrant. The Company shall
not effect any Acquisition in which the Company is not the surviving entity or the Alternate Consideration includes securities of another
entity unless any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall
assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder
may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply
to subsequent transactions analogous to an Acquisition.
1.7 Limitations
on Exercise.
Notwithstanding anything to the contrary herein,
except as specifically contemplated by this Section 1.7, the Company shall not effect any exercise of this Warrant, and the Holder
shall not be entitled to exercise this Warrant, for a number of Warrant Shares in excess of that number of Warrant Shares which, upon
giving effect or immediately prior to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially
owned by the Holder, its Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates
to exceed [[9.99%]//[4.99%]]1 (the “Maximum
Percentage”) of the total number of issued and outstanding shares of Common Stock of the Company following such exercise,
or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other
Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the
combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this paragraph,
beneficial ownership and whether a Holder is a member of a Section 13(d) group shall be calculated and determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the
rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, filed with the Commission prior to the date hereof,
(y) a more recent public announcement by the Company or (z) any other notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within one (1) Trading
Day confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder since the date as of which such number of outstanding shares of Common Stock was reported. By written
notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess
of 19.99% specified in such notice; provided that any such increase will not be effective until the sixty-first (61st) day after such
notice is delivered to the Company. For purposes of this Section 1.7, the aggregate number of shares of Common Stock or voting securities
beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such
Holder or its Affiliates shall include the shares of Common Stock issuable upon: (x) the exercise of this Warrant with respect to
which such determination is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking into account
the limitations on exercise contained herein, but shall exclude the number of shares of Common Stock which would otherwise be issuable
upon exercise of the remaining unexercised and non-cancelled portion of this Warrant but for the limitations on exercise contained herein;
and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company
beneficially owned by the Holder or any of its Affiliates and other Persons who are members of a Section 13(d) group with such
Holder or its Affiliates that do not have voting power (including without limitation any securities of the Company which would entitle
the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock), but shall exclude any such securities subject to any further limitation on conversion or exercise analogous
to the limitation contained herein. Notwithstanding the foregoing, in the event that the exercise of this Warrant would cause the Holder
to beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to
such exercise, then, in lieu of receiving Shares upon such exercise, such Holder may elect to receive a pre-funded warrant for one share
of Common Stock in the form of Annex A hereto (the “Pre-Funded Warrant”). In such event, the Exercise Price
shall be reduced by $0.001 per share of Common Stock, and the exercise price of the Pre-Funded Warrant shall be $0.001 per underlying
share of Common Stock. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 1.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with
the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to
such limitation. This Section 1.7 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially
own in order to determine the amount of securities or other consideration that such Holder may receive in the event of an Acquisition
as contemplated in Section 1.6 of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms
of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including
for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange
Act Rule 16a-1(a)(1) promulgated thereunder. No prior inability to exercise this Warrant pursuant to this paragraph shall have
any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The
provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this
Section 1.7 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent
with the intended beneficial ownership limitation contained in this Section 1.7 or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor
holder of this Warrant.
1 NTD: Each Investor to confirm applicable Maximum
Percentage.
SECTION 2. ADJUSTMENTS TO THE SHARES AND
EXERCISE PRICE.
2.1 Stock
Dividends, Splits, Etc. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class or other securities or property (other than cash), then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder
would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides
the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased and the Exercise Price shall be proportionately decreased. If the outstanding shares of
the Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall
be proportionately increased and the number of Shares shall be proportionately decreased.
2.2 Reclassification,
Exchange, Combinations or Substitution. Upon any event whereby all of the outstanding shares of the Class are reclassified,
exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from
and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that
Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment
thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly
apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
2.3 Adjustment
for Cash Distributions.
(a) If
the Company, prior to the exercise in whole or expiration of this Warrant, pays a cash distribution to all holders of its Common Stock,
then the number of Warrant Shares issuable upon the exercise of this Warrant shall be adjusted in accordance with the formula:
where:
W’ = the adjusted number of Warrant
Shares issuable upon exercise of the Warrant;
W = the number of Warrant
Shares then issuable upon exercise of the Warrant;
M = the fair market value (as determined
pursuant to Section 1.3) per Share on the applicable record date; and
F = the amount of cash or fair market
value on the record date of the evidences of its indebtedness, assets, rights, warrants or other securities to be distributed in respect
of one Share as determined in good faith by the Board of Directors of the Company.
(b) The
adjustment pursuant to this Section 2.3 shall be made successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of holders entitled to receive the distribution.
2.4 No
Fractional Share. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall
be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest by (i) the
fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective Exercise
Price.
2.5 Notice/Certificate
as to Adjustments. Upon each adjustment of the Exercise Price, Class and/or number of Shares, the Company, at the Company’s
expense, shall notify Holder in writing within a reasonable time setting forth the adjustments to the Exercise Price, Class and/or
number of Shares and facts upon which such adjustment is based. The Company shall, upon written request from Holder, furnish Holder with
a certificate of its Chief Financial Officer, including computations of such adjustment and the Exercise Price, Class and number
of Shares in effect upon the date of such adjustment.
2.6 Purchase
Rights. If at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”),
then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder
could have acquired if Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that to the extent that Holder’s right to participate in any such Purchase Right would result in Holder, its
Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding the Maximum
Percentage then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase
Right to such extent shall be held in abeyance for the benefit of Holder until such time or times as its right thereto would not result
in Holder, its Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding
the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold
on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been
no such limitation).
2.7 Registration
Under the Securities Act. This Warrant, as initially issued by the Company, is offered and sold pursuant to the Registration Statement
(as defined below). As of the Issue Date, the Warrant Shares are issuable under the Registration Statement. Accordingly, the Warrant
and, assuming issuance pursuant to the Registration Statement or an exchange meeting the requirements of Section 3(a)(9) of
the Exchange Act as in effect on the Issue Date, the Warrant Shares, are not “restricted securities” under Rule 144
promulgated under the Securities Act of 1933, as amended. The Holder acknowledges that the Warrant Shares acquired upon the exercise
of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by
state and federal securities laws.
“Registration Statement”
means the Company’s registration statement on Form S-3 (File No. 333-275408), which was declared effective by the Securities
and Exchange Commission on November 20, 2023.
2.8 No
Voting Rights. Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant.
SECTION 3. REPRESENTATIONS AND COVENANTS
OF THE COMPANY.
3.1 Representations
and Warranties. The Company represents and warrants to, and agrees with, the Holder as follows:
(a) All
Shares which may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized
and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise
in full of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed.
3.2 Notice
of Certain Events. If the Company proposes at any time to:
(a) declare any dividend
or distribution upon the outstanding shares of the Class, whether in cash, property, stock, or other securities and whether or not a
regular cash dividend;
(b) offer for subscription
or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series of the Company’s
stock (other than pursuant to contractual pre-emptive rights);
(c) effect any reclassification,
exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class; or
(d) effect an Acquisition
or to liquidate, dissolve or wind up;
then, in connection with each such event, the
Company shall give Holder notice thereof at the same time and in the same manner as it gives notice thereof to holders of the outstanding
shares of the Class.
The Company will also provide information requested
by Holder from time to time, within a reasonable time following each such request, that is reasonably necessary to enable Holder to comply
with Holder’s accounting or reporting requirements.
SECTION 4. MISCELLANEOUS.
4.1 Term.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time
on or before 6:00 PM, Eastern time, on the Expiration Date and shall be void thereafter.
4.2 Compliance
with Securities Laws on Transfer. Subject to compliance with all applicable securities laws, the Company shall, or will cause its
Transfer Agent to, record the transfer of all or any portion of this Warrant in its or their records, upon surrender of this Warrant,
and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a New Warrant to purchase Common Stock
in substantially the form of this Warrant evidencing the portion of this Warrant so transferred shall be issued to the transferee, and
a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and
obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer
Agent to, prepare, issue, and deliver at the Company’s own expense any New Warrant under this Section 4.2. Until due presentment
for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder of this Warrant for all purposes
and the Company shall not be affected by any notice to the contrary.
4.3 Notices.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or
certified mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed
in writing by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier
fee prepaid, in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company
or such Holder from time to time in accordance with the provisions of this Section 4.3. All notices to Holder shall be addressed
as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:
[___]
Attn: [____]
[Address]
Telephone: [____]
Email address: [____]
Notice to the Company shall
be addressed as follows until Holder receives notice of a change in address:
Verastem, Inc.
Attn: Chief Financial Officer
117 Kendrick Street, Suite 500
Needham, MA 02494
Telephone: (781) 469-1694
Email: dcalkins@verastem.com
With a copy (which shall not constitute
notice) to:
Ropes & Gray LLP
Attn: Thomas J. Danielski
Prudential Tower
800 Boylston Street
Boston, MA 02199
Telephone: (617) 951-7000
Email: thomas.danielski@ropesgray.com
4.4 Amendment
and Waiver. This Warrant and any term hereof may be amended or otherwise changed, waived, discharged or terminated (either generally
or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which
enforcement of such amendment or other change, waiver, discharge or termination is sought.
4.5 Attorneys’
Fees. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.
4.6 Counterparts;
Facsimile/Electronic Signatures. This Warrant may be executed by one or more of the parties hereto in any number of separate counterparts,
all of which together shall constitute one and the same instrument. The Company, Holder and any other party hereto may execute this Warrant
by electronic means and each party hereto recognizes and accepts the use of electronic signatures and the keeping of records in electronic
form by any other party hereto in connection with the execution and storage hereof. To the extent that this Warrant or any agreement
subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically, it shall be binding to the same
extent as though it had been executed on paper with an original ink signature, as provided under applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed, signed, stored or delivered electronically
shall not prevent the transfer by any Holder of this Warrant pursuant to, or the enforcement of, the terms hereof.
4.7 Headings.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision
of this Warrant.
4.8 Business
Days. “Business Day” is any day that is not a
Saturday, Sunday or a day on which the Nasdaq Capital Market and commercial banks in the City of New York are closed.
SECTION 5. GOVERNING LAW, VENUE, JURY
TRIAL WAIVER, AND JUDICIAL REFERENCE.
5.1 Governing
Law. This Warrant shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
5.2 Jurisdiction
and Venue. The Company and Holder each submit to the exclusive jurisdiction of the state and federal courts in the State of New York;
provided, however, that nothing in this Warrant shall be deemed to operate to preclude Holder from bringing suit or taking other legal
action in any other jurisdiction to enforce a judgment or other court order in favor of Holder. The Company expressly submits and consents
in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby waives any objection that it
may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such
legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints,
and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made in
accordance with Section 4.3 of this Warrant.
5.3 Jury
Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND HOLDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS WARRANT, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES’ AGREEMENT TO THIS WARRANT. EACH PARTY HAS REVIEWED THIS WAIVER WITH
ITS COUNSEL.
5.4 Survival.
This Section 5 shall survive the termination of this Warrant.
[Remainder of page left blank intentionally]
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this
Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
| “COMPANY” |
|
| |
|
| VERASTEM, INC. |
|
| |
|
| By: |
|
|
| |
|
| Name: |
Daniel Paterson |
|
| Title: |
President and Chief Executive Officer |
|
[Signature Page to the
Warrant]
APPENDIX 1
FORM OF NOTICE OF EXERCISE
1. The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Verastem, Inc. (the “Company”)
in accordance with the attached Warrant To Purchase Stock (the “Warrant”), and tenders payment of the aggregate
Exercise Price for such shares as follows:
| |
[ ] |
Wire transfer of immediately available
funds to the Company’s account |
| |
|
|
| |
[ ] |
Cashless Exercise pursuant to Section 1.2
of the Warrant |
| |
|
|
| |
[ ] |
Other [Describe] __________________________________________ |
2. Please
deliver to the Holder Shares in accordance with the terms of the Warrant. The Warrant Shares shall be delivered to the following DWAC
Account Number:________________.
3. By its delivery of this
Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder
will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 1.7 of the Warrant to which this notice relates.
Capitalized terms used herein and not otherwise defined herein have
the respective meanings set forth in the Warrant.
| |
HOLDER: |
| |
|
| |
|
| |
|
| |
By: |
|
| |
|
| |
Name: |
|
| |
|
| |
Title: |
|
| |
|
| |
(Date): |
|
[Signature Page to the
Warrant]
ANNEX A
FORM OF PRE-FUNDED WARRANT
[See Exhibit 4.1 to this Current Report
on Form 8-K]
Exhibit 5.1
|  | ROPES & GRAY LLP
PRUDENTIAL TOWER
800 BOYLSTON STREET
BOSTON, MA 02199-3600
WWW.ROPESGRAY.COM
|
July 25, 2024
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
| Re: | Registration Statement on Form S-3 (File No. 333-275408) |
Ladies and Gentlemen:
We have acted as counsel to Verastem, Inc.,
a Delaware corporation (the “Company”), in connection with the issuance and sale of (i) 13,333,334 shares of the Company’s
common stock (“Common Stock”), $0.0001 par value per share (the “Shares”) (ii) warrants (the “Warrants”)
to purchase up to an aggregate of 18,333,334 shares of Common Stock (“the Warrant Shares”) (or, in certain limited circumstances
in lieu of shares of Common Stock, may be exercised to purchase pre-funded warrants to purchase shares of Common Stock); and (iii) pre-funded
warrants (the “Pre-Funded Warrants”) to purchase up to an aggregate of 5,000,000 shares of Common Stock (the “Pre-Funded
Warrant Shares”); pursuant to the above-referenced registration statement (as amended through the date hereof, the “Registration
Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Securities Act”). The Shares, the Warrants and the Pre-funded Warrants are being sold pursuant
to an underwriting agreement, dated July 23, 2023 (the “Underwriting Agreement”), among the Company and the underwriters
named therein.
In connection with this opinion letter, we have
examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed
appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without
independent verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the
Delaware General Corporation Law.
Based upon and subject to the foregoing, we are
of the opinion that (i) the Shares have been duly authorized and, when issued and delivered pursuant to the Underwriting Agreement
against payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable, (ii) provided that
the Warrants and Pre-Funded Warrants have been duly executed and delivered by the Company and duly delivered to the purchaser thereof
against payment therefor, then the Warrants and Pre-funded Warrants, when issued and sold as described in the prospectus supplement dated
July 23, 2024 (the “Prospectus”), assuming a sufficient number of Warrant Shares and Pre-Funded Warrant Shares are at
the time available for issuance, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity) and implied covenants of good faith and fair dealing, provided that
we express no opinion as to the validity, legally binding effect or enforceability of any provision in the Warrants or Pre-Funded Warrants
that requires or relates to adjustments to the exercise price at a price or in an amount that a court would determine in the circumstances
under applicable law to be commercially unreasonable or a penalty or forfeiture, and (iii) the Warrant Shares and Pre-Funded Warrant
Shares, when issued upon exercise of the Warrants or Pre-Funded Warrants in accordance with their respective terms, as applicable, will
have been duly authorized and validly issued and will be fully paid and non-assessable.
Verastem, Inc.
We hereby consent to your filing this opinion
as an exhibit to a Current Report on Form 8-K to be incorporated by reference into the Registration Statement and to the use of
our name therein and in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Ropes & Gray LLP |
| |
|
| |
Ropes & Gray LLP |
Exhibit 99.1
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
The following table sets forth estimates of
the various expenses, other than any underwriting discounts and commissions, in connection with the sale and distribution of the securities
being registered.
| Securities and Exchange Commission Registration Fee | |
$ | (1) | |
| Printing and related expenses | |
| 15,000 | |
| Legal fees and expenses | |
| 475,000 | |
| Accounting fees and expenses | |
| 70,000 | |
| Transfer Agent and Registrar fees | |
| 5,000 | |
| Miscellaneous | |
| 20,000 | |
| Total | |
$ | 585,000.00 | |
| (1) | A fee of $ 44,280.00 was previously paid in connection with the filing of the registration statement on Form S-3. |
v3.24.2
Cover
|
Jul. 23, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Jul. 23, 2024
|
| Entity File Number |
001-35403
|
| Entity Registrant Name |
Verastem,
Inc.
|
| Entity Central Index Key |
0001526119
|
| Entity Tax Identification Number |
27-3269467
|
| Entity Incorporation, State or Country Code |
DE
|
| Entity Address, Address Line One |
117 Kendrick Street
|
| Entity Address, Address Line Two |
Suite 500
|
| Entity Address, City or Town |
Needham
|
| Entity Address, State or Province |
MA
|
| Entity Address, Postal Zip Code |
02494
|
| City Area Code |
781
|
| Local Phone Number |
292-4200
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Common stock, $0.0001 par value per share
|
| Trading Symbol |
VSTM
|
| Security Exchange Name |
NASDAQ
|
| Entity Emerging Growth Company |
false
|
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 2 such as Street or Suite number
| Name: |
dei_EntityAddressAddressLine2 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Verastem (NASDAQ:VSTM)
Historical Stock Chart
From Oct 2024 to Nov 2024
Verastem (NASDAQ:VSTM)
Historical Stock Chart
From Nov 2023 to Nov 2024
