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): April 19, 2022 (April 18, 2022)
CHECKMATE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-39425 | 36-4813934 | ||
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
Checkmate Pharmaceuticals, Inc.
245 Main Street, 2nd Floor |
Cambridge, Massachusetts 02142 |
(Address of Principal Executive Offices) (Zip Code) |
(617) 682-3625
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Common Stock, par value $0.0001 per share | CMPI | The Nasdaq Global 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 1.01 | Entry into a Material Definitive Agreement. |
As previously announced, on April 18, 2022, Checkmate Pharmaceuticals, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (“Merger Agreement”) with Regeneron Pharmaceuticals, Inc., a New York corporation (“Parent”), and Scandinavian Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions therein, Purchaser will commence a cash tender offer (the “Offer”) to acquire all of the issued and outstanding shares of the common stock, par value $0.0001 per share, of the Company (“Common Stock”) at a price per share of $10.50, to be paid to the seller in cash, without interest (the “Offer Price”) and subject to reduction for any applicable withholding of taxes required by applicable law. The Offer will initially remain open for 20 business days, subject to extension under certain circumstances.
Purchaser’s obligation to accept for payment shares of Common Stock validly tendered pursuant to the Offer is subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, including: that (i) there be validly tendered and not validly withdrawn prior to the expiration of the Offer a number of shares of Common Stock that, considered together with all other shares of Common Stock (if any) beneficially owned by Parent and its affiliates, represent one more share of Common Stock than 50% of the total number of shares of Common Stock outstanding at the expiration of the Offer; (ii) the waiting period (and any extension thereof) applicable to the transactions contemplated by the Merger Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), has expired or been terminated; (iii) the accuracy of the representations and warranties of the Company contained in the Merger Agreement, subject to customary thresholds and exceptions; (iv) the Company’s compliance with, or performance of, in all material respects its covenants and agreements contained in the Merger Agreement; (v) the absence of a Material Adverse Effect (as defined in the Merger Agreement); and (vi) other customary conditions set forth in Annex I of the Merger Agreement.
Following the consummation of the Offer, subject to the conditions set forth in the Merger Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), Purchaser will merge with and into the Company, with the Company as the surviving corporation (the “Merger”). If an Offer Termination (as defined below) does not occur, the Merger will be governed by Section 251(h) of the DGCL, with no stockholder vote required to consummate the Merger.
The Merger Agreement also provides an alternative means by which the Merger may be consummated even if the Offer is not completed, which requires the approval of the Company’s stockholders. Pursuant to the Merger Agreement, in certain circumstances Purchaser may elect to proceed with the acquisition through a Merger without any Offer, in which case Purchaser will terminate the Offer or allow it to expire (such termination, an “Offer Termination”). In this case the Company would be required to file a proxy statement to obtain approval of the Merger by the Company’s stockholders at a special stockholders meeting held for the purpose of voting upon the adoption of the Merger Agreement, and the Merger would be effected pursuant to Section 251(c) of the DGCL.
Pursuant to the Merger, each issued and outstanding share of Common Stock (other than (i) shares of Common Stock with respect to which the holders thereof have properly exercised and perfected demands for appraisal of such shares in accordance with the DGCL, (ii) shares of Common Stock that are owned by the Company as treasury stock, and (iii) shares of Common Stock then held by Parent or Purchaser) will be converted automatically into and will thereafter represent only the right to receive $10.50 in cash, without interest and subject to reduction for any applicable withholding of taxes required by applicable law.
In addition, immediately prior to the effective time of the Merger (the “Effective Time”), by virtue of the Merger and without any action on the part of any holder thereof, each outstanding and unexercised option of the Company, whether or not vested, that has a per share exercise price that is less than the Merger Consideration (as defined in the Merger Agreement) (an “In the Money Option”) shall be cancelled and the holder thereof shall be entitled to receive a cash payment equal to (A) the excess, if any, of (x) the Merger Consideration over (y) the exercise price payable per share under such option, multiplied by (B) the total number of shares subject to such option immediately prior to the Effective Time (without regard to vesting).
At the Effective Time, each Company option other than an In the Money Option that is then outstanding and unexercised, whether or not vested, shall be cancelled with no consideration payable in respect thereof.
The Merger Agreement includes customary representations, warranties and covenants of the Company, Parent and Merger Sub for a transaction of this nature, including covenants regarding the operation of the Company’s business prior to the Effective Time.
The Company has agreed to customary restrictions on its ability to solicit alternative acquisition proposals from third parties and engage in discussions or negotiations with third parties regarding acquisition proposals. Notwithstanding these restrictions, the Company may under certain circumstances provide information to and participate in discussions or negotiations with third parties with respect to an unsolicited bona fide written acquisition proposal that the board of directors of the Company has determined constitutes or would reasonably be expected to lead to a Superior Offer (as such term is defined in the Merger Agreement), if failing to do so would be inconsistent with the board of director’s fiduciary duties under applicable law.
The Merger Agreement also provides that, in connection with the termination of the Merger Agreement under specified circumstances, including termination by the Company to accept and enter into an agreement with respect to a Superior Offer, the Company will be required to pay Parent a termination fee in the amount of $8,750,000.
The board of directors of the Company has unanimously (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Offer and the Merger are fair to and in the best interest of the Company and its stockholders, (ii) declared it advisable that the Company enters into the Merger Agreement, (iii) approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of the Transactions, including the Offer and the Merger, (iv) resolved that (a) if the Offer Acceptance Time (as defined in the Merger Agreement) occurs, the Merger shall be effected under Section 251(h) of the DGCL and will be effected as soon as practicable following the consummation of the Offer, and (b) if an Offer Termination occurs, the Merger will be governed by Section 251(c) of the DGCL, in each case, upon the terms and subject to the conditions set forth in the Merger Agreement and (v) resolved to recommend that the Company’s stockholders (1) accept the Offer and tender their shares of Common Stock to Purchaser pursuant to the Offer and (2) adopt the Merger Agreement at any meeting of the Company’s stockholders held for such purpose and any adjournment or postponement thereof.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, and is incorporated herein by reference. A copy of the Merger Agreement has been included to provide investors with information regarding its terms and is not intended to provide any factual information about the Company or Parent.
The Merger Agreement contains representations, warranties, covenants and agreements, which were made only for purposes of such agreement and as of specified dates. The representations and warranties in the Merger Agreement reflect negotiations between the parties to the Merger Agreement and are not intended as statements of fact to be relied upon by the Company’s stockholders. In particular, the representations, warranties, covenants and agreements in the Merger Agreement may be subject to limitations agreed by the parties, including having been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, and having been made for purposes of allocating risk among the parties rather than establishing matters of fact. In addition, the parties may apply standards of materiality in a way that is different from what may be viewed as material by investors. As such, the representations and warranties in the Merger Agreement may not describe the actual state of affairs at the date they were made or at any other time and you should not rely on them as statements of fact. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, and unless required by applicable law, the Company undertakes no obligation to update such information.
Tender and Support Agreement
In connection with the execution of the Merger Agreement, each of Decheng Capital China Life Sciences USD Fund III, L.P. and Arthur Krieg, MD, the Company’s Chief Scientific Officer, solely in their respective capacities as stockholders of the Company who collectively beneficially own approximately 10% of the outstanding shares of Common Stock, entered into a Tender and Support Agreement (the “Tender and Support Agreement”) with Parent and Purchaser. The Tender and Support Agreement provides, among other things, that each applicable stockholder will tender all of the shares of Common Stock held by such stockholder to Purchaser in the Offer and (if applicable) vote all of its shares of Common Stock in favor of the Merger.
The form of Tender and Support Agreement has been included to provide information regarding its terms. It is not intended to modify or supplement any factual disclosures about the applicable stockholder or the Company, Parent or Purchaser in any public reports filed with the U.S. Securities and Exchange Commission (the “SEC”) by the Company, Parent or Purchaser.
The foregoing description of the Tender and Support Agreement does not purport to be complete and is qualified in their entirety by reference to the full text of the Tender and Support Agreement, which is attached hereto as Exhibit 99.1, and is incorporated herein by reference.
Forward-Looking Statements
This communication includes forward-looking statements that involve risks and uncertainties relating to future events and the future performance of Regeneron Pharmaceuticals, Inc. (“Regeneron”) and Checkmate Pharmaceuticals, Inc. (“Checkmate”), and actual events or results may differ materially from these forward-looking statements. Words such as “anticipate,” “expect,” “intend,” “plan,” “believe,” “seek,” “estimate,” variations of such words, and similar expressions are intended to identify such forward-looking statements, although not all forward-looking statements contain these identifying words. Risks that may cause these forward-looking statements to be inaccurate include, without limitation: uncertainties as to the timing of the tender offer and merger; uncertainties as to how many of Checkmate’s stockholders will tender their stock in the offer; the possibility that competing offers will be made; the possibility that various closing conditions for the transaction may not be satisfied or waived, including that a governmental entity may prohibit, delay, or refuse to grant approval for the consummation of the transaction (or only grant approval subject to adverse conditions or limitations); the difficulty of predicting the timing or outcome of regulatory approvals or actions, if any; the possibility that the transaction does not close; risks related to Regeneron’s ability to realize the anticipated benefits of the proposed acquisition, including the possibility that the expected benefits from the proposed acquisition will not be realized or will not be realized within the expected time period and that Regeneron and Checkmate will not be integrated successfully; the effects of the transaction on relationships with employees, other business partners or governmental entities; negative effects of this announcement or the consummation of the proposed acquisition on the market price of Regeneron’s or Checkmate’s common stock and/or Regeneron’s or Checkmate’s operating results; significant transaction costs; unknown liabilities; the risk of litigation and/or regulatory actions related to the proposed acquisition; the impact of SARS-CoV-2 (the virus that has caused the COVID-19 pandemic) on Regeneron’s or Checkmate’s business and its employees, collaborators, and suppliers and other third parties on which Regeneron and Checkmate rely; Regeneron’s, Checkmate’s, and their collaborators’ ability to continue to conduct research and clinical programs;
Regeneron’s and Checkmate’s ability to manage their supply chains; Regeneron’s ability to manage net product sales of products marketed or otherwise commercialized by Regeneron and/or its collaborators or licensees (collectively, “Regeneron’s Products”); the nature, timing, and possible success and therapeutic applications of Regeneron’s Products, product candidates being developed by Regeneron and/or its collaborators or licensees (collectively, “Regeneron’s Product Candidates”), and product candidates being developed by Checkmate, such as vidutolimod; the extent to which the results from the research and development programs conducted by Regeneron, Checkmate, and/or their collaborators or licensees may be replicated in other studies and/or lead to advancement of product candidates to clinical trials, therapeutic applications, or regulatory approval; the potential of the Toll-like receptor 9 (TLR9) agonist technology discussed in this communication; uncertainty of the utilization, market acceptance, and commercial success of Regeneron’s Products, Regeneron’s Product Candidates, and vidutolimod and the impact of studies (whether conducted by Regeneron, Checkmate or others and whether mandated or voluntary) on any of the foregoing or any potential regulatory approval of Regeneron’s Products, Regeneron’s Product Candidates, and vidutolimod; the likelihood, timing, and scope of possible regulatory approval and commercial launch of Regeneron’s Product Candidates and vidutolimod and new indications for Regeneron’s Products; the ability of Regeneron’s and Checkmate’s collaborators, licensees, suppliers, or other third parties (as applicable) to perform manufacturing, filling, finishing, packaging, labeling, distribution, and other steps related to Regeneron’s Products, Regeneron’s Product Candidates, and vidutolimod; the ability of Regeneron and/or its collaborators to manufacture and manage supply chains for multiple products and product candidates; safety issues resulting from the administration of Regeneron’s Products, Regeneron’s Product Candidates, and vidutolimod in patients, including serious complications or side effects in connection with the use of Regeneron’s Products, Regeneron’s Product Candidates, and vidutolimod in clinical trials; determinations by regulatory and administrative governmental authorities which may delay or restrict Regeneron’s ability to continue to develop or commercialize Regeneron’s Products, Regeneron’s Product Candidates, or Checkmate’s ability to continue to develop or commercialize vidutolimod; and competing drugs and product candidates that may be superior to, or more cost effective than, Regeneron’s Products, Regeneron’s Product Candidates, or vidutolimod. A more complete description of these and other material risks can be found in Regeneron’s and Checkmate’s filings with the U.S. Securities and Exchange Commission, including their Forms 10-K for the year ended December 31, 2021 as well as the Schedule TO and related tender offer documents to be filed by Regeneron and Scandinavian Acquisition Sub, Inc., and the Schedule 14D-9 to be filed by Checkmate, and, if applicable, the proxy statement referenced below. Any forward-looking statements are made based on the current beliefs and judgments of Regeneron’s and Checkmate’s management, and the reader is cautioned not to rely on any forward-looking statements made by Regeneron or Checkmate. Regeneron and Checkmate do not undertake any obligation to update (publicly or otherwise) any forward-looking statement, including without limitation any financial projection or guidance, whether as a result of new information, future events, or otherwise.
Additional Information and Where to Find It
The tender offer referenced in this communication has not yet commenced. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell securities of Checkmate, nor is it a substitute for the tender offer materials that Checkmate, Regeneron or its acquisition subsidiary, Scandinavian Acquisition Sub, Inc., will file with the Securities and Exchange Commission (“SEC”). The solicitation and offer to buy Checkmate stock will only be made pursuant to an Offer to Purchase and related tender offer materials that Regeneron intends to file with the SEC. At the time the tender offer is commenced, Regeneron and its acquisition subsidiary will file a Tender Offer Statement on Schedule TO and thereafter Checkmate will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender offer. Under certain circumstances described in the definitive transaction documents, Regeneron may determine to instead to terminate or withdraw the offer and effect the transaction through a merger only, in which case the relevant documents to be filed with the SEC will include a proxy statement for the solicitation of votes of Checkmate stockholders to approve the merger. CHECKMATE’S STOCKHOLDERS AND OTHER INVESTORS ARE URGED TO READ CAREFULLY THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9, AND, IF APPLICABLE, THE PROXY STATEMENT BECAUSE THEY WILL EACH CONTAIN IMPORTANT INFORMATION THAT HOLDERS OF CHECKMATE SECURITIES AND OTHER INVESTORS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING WITH RESPECT TO THE TENDER OFFER, OR, IF APPLICABLE, VOTING ON THE TRANSACTION. The Offer to Purchase, the related Letter of
Transmittal, certain other tender offer documents, as well as the Solicitation/Recommendation Statement, and if applicable, the proxy statement will be made available to all stockholders of Checkmate at no expense to them and will also be made available for free at the SEC’s website at www.sec.gov. Additional copies may be obtained for free by contacting either Regeneron or Checkmate. Copies of the documents filed with the SEC by Checkmate will be available free of charge on Checkmate’s website at https://ir.checkmatepharma.com or by contacting Checkmate’s Investor Relations Department at (617) 682-3625. Copies of the documents filed with the SEC by Regeneron will be available free of charge on Regeneron’s website at https://investor.regeneron.com or by contacting Regeneron’s Investor Relations Department at invest@regeneron.com or (914) 847-7741.
In addition to the Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, and if applicable, the proxy statement, Regeneron and Checkmate each file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any reports or other information filed by Regeneron or Checkmate at the SEC public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Regeneron’s and Checkmate’s filings with the SEC are also available for free to the public from commercial document-retrieval services and at the website maintained by the SEC at http://www.sec.gov.
If the tender offer is terminated and the transaction is to be effected by merger only, in which case, the approval of Checkmate stockholders must be obtained, Regeneron, Checkmate and their respective directors and executive officers may be deemed to be participants in any such solicitation of proxies from Checkmate’s stockholders in connection with the proposed transaction. Information regarding Regeneron’s directors and executive officers is available in its proxy statement that was filed with the SEC; information regarding Checkmate’s directors and executive officers is available in its proxy statement that was filed with the SEC. Other information regarding potential participants in any such proxy solicitation will be contained in any proxy statement filed in connection with the transaction.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
Exhibit No. |
Description of Exhibit | |
2.1 | Agreement and Plan of Merger, dated as of April 18, 2022, by and among Checkmate Pharmaceuticals, Inc., Regeneron Pharmaceuticals, Inc., and Scandinavian Acquisition Sub, Inc.* | |
99.1 | Tender and Support Agreement, dated as of April 18, 2022 by and among Regeneron Pharmaceuticals, Inc., Scandinavian Acquisition Sub, Inc. and certain Stockholders of Checkmate Pharmaceuticals, Inc. | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
* | Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission; provided, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: April 19, 2022
CHECKMATE PHARMACEUTICALS, INC. | ||
By: | /s/ Robert Dolski | |
Name: | Robert Dolski | |
Title: | Chief Financial Officer |
Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
among:
Checkmate Pharmaceuticals, Inc.,
a Delaware corporation;
Regeneron Pharmaceuticals, Inc.,
a New York corporation; and
Scandinavian Acquisition Sub, Inc.,
a Delaware corporation
Dated as of April 18, 2022
Table of Contents
Section 1
THE OFFER
1
2
3
AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (Agreement) is made and entered into as of April 18, 2022, by and among: Regeneron
Pharmaceuticals, Inc., a New York corporation (Parent); Scandinavian Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Purchaser); and Checkmate Pharmaceuticals, Inc., a
Delaware corporation (the Company). Certain capitalized terms used in this Agreement are defined in Exhibit A. RECITALS (A) Parent has
agreed to cause Purchaser to commence a tender offer (as it may be amended or extended from time to time as permitted under this Agreement, the Offer) to acquire all of the outstanding shares of Company Common Stock (the
Shares and each such share of Company Common Stock, a Share), other than the Excluded Shares and the Converted Shares, for $10.50 per Share, to be paid to the seller in cash, without interest (such amount, or
any higher amount per Share paid pursuant to the Offer, and as may be adjusted in accordance with Section 1.1(g), being the Offer Price), and subject to reduction for any applicable withholding Taxes,
upon the terms and subject to the conditions of this Agreement. (B) Regardless of whether the Offer Acceptance Time occurs, Purchaser
will be merged with and into the Company (the Merger), with the Company continuing as the surviving corporation in the Merger (the Surviving Corporation), on the terms and subject to the conditions set forth in
this Agreement, whereby (i) each issued and outstanding Share as of the Effective Time (other than Excluded Shares, Converted Shares and Dissenting Shares) shall be converted into the right to receive the Offer Price, in cash, without interest,
and subject to reduction for any applicable withholding Taxes in accordance with Section 2.6(e), and (ii) the Company shall become a wholly owned Subsidiary of Parent as a result of the Merger. (C) The board of directors of the Company (the Board of Directors) has unanimously (i) determined that this Agreement
and the Transactions, including the Offer and the Merger, are fair to, and in the best interest of, the Company and its stockholders, (ii) declared it advisable to enter into this Agreement, (iii) approved the execution, delivery and
performance by the Company of this Agreement and the consummation of the Transactions, including the Offer and the Merger, (iv) resolved that (a) if the Offer Acceptance Time occurs, the Merger shall be effected under Section 251(h)
of the DGCL and will be effected as soon as practicable following the consummation of the Offer, and (b) if an Offer Termination occurs, the Merger will be governed by Section 251(c) of the DGCL, in each case, upon the terms and subject to
the conditions set forth herein, and (v) resolved to recommend that the stockholders of the Company (1) accept the Offer and tender their Shares to Purchaser pursuant to the Offer and (2) adopt this Agreement at any meeting of the
Companys stockholders held for such purpose and any adjournment or postponement thereof (collectively, the Company Board Recommendation), in each case, on the terms and subject to the conditions of this Agreement. (D) The board of directors of each of Parent and Purchaser have approved this Agreement and declared it advisable for Parent and Purchaser,
respectively, to enter into this Agreement. 4
(E) Parent, Purchaser and the Company acknowledge and agree that (a) if the Offer
Acceptance Time occurs, the Merger shall be effected under Section 251(h) of the DGCL and will be effected as soon as practicable following the consummation of the Offer, and (b) if an Offer Termination occurs, the Merger will be governed
by Section 251(c) of the DGCL, in each case, upon the terms and subject to the conditions set forth herein. (F) As a condition and
inducement to the willingness of Parent and Purchaser to enter into this Agreement, concurrently with the execution and delivery of this Agreement, certain of the Companys stockholders are entering into a tender and support agreement with
Parent and Purchaser (the Support Agreement) pursuant to which, among other things, each such stockholder has agreed to tender all of its Shares (totaling, in the aggregate, approximately 10% of the outstanding Shares) to
Purchaser in the Offer and (if applicable) vote all of its Shares in favor of the Merger. AGREEMENT The Parties to this Agreement, intending to be legally bound, agree as follows: SECTION 1 THE
OFFER 1.1 The Offer. (a) Commencement of the Offer. Provided that this Agreement shall not have been terminated in accordance with
Section 8, as promptly as practicable after the date of this Agreement but in no event more than ten (10) business days after the date of this Agreement (subject to the Company having timely provided any information
required to be provided by it pursuant to Sections 1.1(e) and 1.2(b)), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the
Offer to purchase all of the outstanding Shares (other than Shares to be cancelled pursuant to Sections 2.5(a)(i) and 2.5(a)(ii) (collectively, the Excluded Shares)), and other than Shares to be converted pursuant to
Section 2.5(a)(iii) (collectively, the Converted Shares)), at a price per Share equal to the Offer Price, to be paid to the seller in cash, without interest, and subject to reduction for any applicable
withholding Taxes in accordance with Section 2.6(e). (b) Terms and Conditions of the Offer. If the Offer
Termination has not occurred, the obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not validly withdrawn) pursuant to the Offer are subject only to the terms and
conditions set forth in this Agreement, including the satisfaction of the Minimum Condition and the Termination Condition, and the satisfaction or waiver of the other conditions set forth in Annex I (collectively, the Offer
Conditions). The Offer shall be made by means of an offer to purchase (the Offer to Purchase) that contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer
Conditions. Purchaser and Parent expressly reserve the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, the Termination Condition or the conditions set forth in clauses
(e) and (g) (solely in respect of any Antitrust Law) of Annex I and (iii) make any 5
other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in
this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought
to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (e) and
(g) (solely in respect of any Antitrust Law) of Annex I, (F) otherwise amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in its
capacity as such, (G) terminate the Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Sections 1.1(c), 1.1(d) or 5.4 (including, for the avoidance of doubt, in
connection with an Offer Termination), or (H) provide any subsequent offering period (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer
may not be terminated or withdrawn prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer, unless this Agreement is terminated in accordance with Section 8 or the Offer is terminated or withdrawn in
connection with an Offer Termination. (c) Expiration and Extension of the Offer. The Offer shall initially be scheduled to expire
at one minute after 11:59 p.m. Eastern Time on the date that is twenty (20) business days (determined as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the
Exchange Act) from the Offer Commencement Date (unless otherwise agreed to in writing by Parent and the Company) (the Initial Expiration Date, and such date and time or such subsequent date and time to which the expiration of the
Offer is extended in accordance with the terms of this Agreement, the Expiration Date). Notwithstanding anything to the contrary contained in this Agreement, but subject to the Parties respective termination rights under
Section 8: (i) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived by Purchaser or Parent, to the extent waivable by Purchaser or Parent, Purchaser may, in its
discretion (and without the consent of the Company or any other Person), extend the Offer on one or more occasions, for an extension period of up to ten (10) business days per extension, to permit such Offer Condition to be satisfied; and
(ii) subject to Purchasers right to terminate the Offer and pursue the Merger in connection with an Offer Termination pursuant to Section 1.1(d), (A) if, as of the then-scheduled Expiration Date, any Offer
Condition (other than (x) the Offer Condition set forth in clause (f) of Annex I and (y) the Minimum Condition) is not satisfied and has not been waived by Purchaser or Parent, to the extent waivable by Purchaser or
Parent, upon the Companys written request, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for successive extension periods of ten (10) business days per extension, to permit such Offer Condition to be satisfied,
(B) if, as of the then-scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions (other than the Offer Condition set forth in clause (f) of Annex I) have been satisfied or waived, at the
written request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer on up to two (2) occasions for an additional period of up to ten (10) business days per extension, to permit the Minimum Condition to be
satisfied and (C) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time for any period required by any Legal Requirement, any interpretation or position of the SEC, the staff thereof or NASDAQ applicable to
the Offer; provided, however, that in no event shall Purchaser: (1) be required to extend the Offer beyond the earlier to occur of (x) the valid termination of this Agreement in compliance with
Section 8 and (y) the End Date (such earlier 6
occurrence, the Extension Deadline); or (2) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company;
provided that, in each case, the extensions contemplated by this Section 1.1(c) shall be subject to Purchasers right to terminate the Offer and pursue the Merger in connection with an Offer Termination pursuant
to Section 1.1(d). Except (i) as provided in Section 1.1(d), (ii) in the event that this Agreement is terminated pursuant to Section 8 or (iii) if Purchaser is
not obligated to extend the Offer as provided in this Section 1.1(c), Purchaser shall not terminate the Offer, or permit the Offer to expire, prior to any scheduled Expiration Date without the prior written consent of the
Company. (d) Termination of Offer. Nothing in this Section 1.1 shall be deemed to impair, limit or
otherwise restrict in any manner the right of the Company, Parent or Purchaser to terminate this Agreement pursuant to Section 8. If Parent delivers a Meeting Election, Purchaser shall (and Parent shall cause Purchaser to)
promptly terminate and withdraw the Offer or permit the Offer to expire without accepting for payment, and without paying for, any Shares pursuant to the Offer. The termination or expiration of the Offer by Purchaser pursuant to the preceding
sentence is referred to in this Agreement as an Offer Termination. The Parties hereto acknowledge and agree that in no event shall an Offer Termination following a valid Meeting Election in accordance with the terms of this
Agreement, in and of itself give, rise to a right of termination of this Agreement, and, if an Offer Termination occurs, (i) absent any valid termination of this Agreement pursuant to Section 8, the obligations of the
Parties hereunder (other than those related to the Offer) shall continue to remain in effect, including those obligations with respect to the Merger, (ii) Purchaser shall not (and Parent shall cause Purchaser not to) (A) acquire any Shares
pursuant to the Offer, or (B) without the Companys prior written consent, commence within the meaning of Rule 14d-2 promulgated under the Exchange Act another tender offer or exchange offer with
respect to the Shares after the Offer Termination and (iii) the text of clause (v)(1) of the definition of Company Board Recommendation shall be deemed to have been deleted in its entirety. If this Agreement is validly
terminated pursuant to Section 8, Purchaser shall (and Parent shall cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant to the Offer. If the Offer is
terminated or withdrawn by Purchaser in accordance with the terms of this Agreement, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all
tendered Shares to the registered holders thereof. (e) Offer Documents. As promptly as practicable on the Offer Commencement Date,
Parent and Purchaser shall (i) file with the SEC a tender offer statement on Schedule TO with respect to the Offer (together with any exhibits, amendments or supplements thereto, including the Offer to Purchase and form of the related letter of
transmittal, the Offer Documents) that will contain or incorporate by reference the Offer to Purchase and form of the related letter of transmittal and (ii) cause the Offer to Purchase and related documents to be disseminated
to holders of Shares as and to the extent required by applicable Legal Requirements. Parent and Purchaser agree that they shall cause the Offer Documents filed by either Parent or Purchaser with the SEC (x) to comply in all material respects
with the Exchange Act and other applicable Legal Requirements and (y) to not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided, however, that no covenant is made by Parent or Purchaser with respect to information supplied by or on behalf of the Company for inclusion or
incorporation by reference in the Offer 7
Documents. Each of Parent, Purchaser and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it for use in the Offer
Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Purchaser further agree to take all steps necessary to promptly cause the Offer Documents as so corrected to be filed
with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Legal Requirements. The Company consents to the inclusion of the Company Board Recommendation in the Offer Documents (unless the Board
of Directors has made a Company Adverse Recommendation Change in compliance with Section 6.1(b)). The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parents legal counsel all
information concerning the Company and the Companys stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 1.1(e). The Company and its counsel shall be
given reasonable opportunity to review and comment on the Offer Documents (including any response to any comments (including oral comments) of the SEC or its staff with respect thereto) prior to the filing thereof with the SEC, and Parent and
Purchaser shall give reasonable and good faith consideration to any such comments made by the Company or its counsel. Parent and Purchaser agree to provide the Company and its counsel with any comments (including oral comments) Parent, Purchaser or
their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of those comments (including oral comments). (f) Funds. Without limiting the generality of Section 9.10, Parent shall cause to be provided to Purchaser,
on a timely basis (and in any event prior to the Offer Acceptance Time), all of the funds necessary to purchase all Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis,
all of Purchasers obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective controlled Affiliates shall, tender any Shares held by them into the Offer. (g) Adjustments. If, between the date of this Agreement and the Offer Acceptance Time, the outstanding Shares are changed into a
different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price
shall be appropriately adjusted; provided, that nothing in this Section 1.1(g) shall be construed to permit the Company to take any action that is prohibited by the terms of this Agreement. (h) Acceptance. Subject only to the satisfaction or, to the extent waivable by Purchaser or Parent, waiver by Purchaser or Parent of
each of the Offer Conditions, Purchaser shall (and Parent shall cause Purchaser to) (i) promptly after (and in any event prior to 9:30 a.m. Eastern Time on the Business Day following) the Expiration Date, irrevocably accept for payment all
Shares tendered (and not validly withdrawn) pursuant to the Offer (the time of such acceptance, the Offer Acceptance Time) and (ii) promptly after (and in any event no later than the second (2nd) business day after) the Offer
Acceptance Time, pay for such Shares. 8
(i) Notification of Offer Status. Parent shall, upon the reasonable request of the
Company, advise the Company at least on a daily basis on each of the last seven (7) business days prior to the then-scheduled Expiration Date as to the number of Shares that have been validly tendered and not validly withdrawn in accordance
with the terms of the Offer. 1.2 Company Actions. (a) Schedule 14D-9. As promptly as practicable on the Offer Commencement Date, following the
filing of the Schedule TO that forms a part of the Offer Documents, the Company shall (i) file with the SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
exhibits, amendments or supplements thereto, the Schedule 14D-9) that includes the Company Board Recommendation (unless the Board of Directors has made a Company Adverse Recommendation
Change in accordance with Section 6.1(b)) and the notice and other information required by Section 262(d)(2) of the DGCL and (ii) cause the Schedule 14D-9 and related
documents to be disseminated to holders of Shares as and to the extent required by applicable Legal Requirements, including by setting the Stockholder List Date as the record date for purposes of receiving the notice required by
Section 262(d)(2) of the DGCL. The Company agrees that it shall cause the Schedule 14D-9 (x) to comply in all material respects with the Exchange Act and other applicable Legal Requirements and
(y) to not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that no covenant is made by the Company with respect to information supplied by or on behalf of Parent or Purchaser for inclusion or incorporation by reference in the Schedule 14D-9. Each of Parent, Purchaser and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to promptly cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Legal Requirements. Parent and Purchaser shall promptly furnish or
otherwise make available to the Company or the Companys legal counsel all information concerning Parent or Purchaser that may be required or reasonably requested in connection with any action contemplated by this
Section 1.2(a). Except with respect to any disclosure regarding a Company Adverse Recommendation Change made in compliance with Section 6.1, Parent and its counsel shall be given reasonable
opportunity to review and comment on the Schedule 14D-9 (including any response to any comments (including oral comments) of the SEC or its staff with respect thereto) prior to the filing thereof with the SEC,
and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel. Except with respect to any disclosure regarding a Company Adverse Recommendation Change made in compliance with
Section 6.1, the Company agrees to provide Parent and its counsel with any comments (including oral comments) the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments (including oral comments). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or
otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Shares. 9
(b) Stockholder Lists. The Company shall (or shall cause its transfer agent to)
promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock
depositories, in each case accurate and complete (except for de minimis inaccuracies), as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels
and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer and the Merger (the date of the list used to determine the Persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated, which date shall not be more than ten (10) business days prior to the date the Offer Documents and the Schedule 14D-9 are first
disseminated, the Stockholder List Date). Subject to applicable Legal Requirements, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions,
Parent and Purchaser and their agents shall hold in confidence the information contained in any such labels, listings and files in accordance with the Confidentiality Agreement, shall use such information only in connection with the Offer and the
Merger and, if this Agreement shall be terminated, shall, upon request by the Company, deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or, at Parents option, destroy) all copies and any
extracts or summaries from such information then in their possession or control, and, if requested by the Company, promptly certify to the Company in writing that all such material has been returned or destroyed. (c) Share Registry. The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares accepted
for payment by Purchaser effective immediately after the Offer Acceptance Time. SECTION 2 MERGER TRANSACTION 2.1 Merger of Purchaser into the Company. Upon the terms and subject to the conditions set forth in this Agreement and in
accordance with the DGCL, at the Effective Time, the Company and Parent shall consummate the Merger, whereby Purchaser shall be merged with and into the Company, the separate existence of Purchaser shall cease, and the Company will continue as the
Surviving Corporation. If the Offer Acceptance Time occurs, the Merger shall be governed by Section 251(h) of the DGCL; if an Offer Termination occurs, the Merger shall be governed by Section 251(c) of the DGCL. 2.2 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Purchaser shall vest in the Surviving Corporation, and all of the debts,
liabilities and duties of the Company and Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. 2.3 Closing; Effective Time. (a) Unless this Agreement shall have been terminated pursuant to Section 8, and unless otherwise mutually agreed in
writing between the Company, Parent and Purchaser, the consummation of the Merger (the Closing) shall take place at 9:00 a.m. Eastern Time by means of a virtual closing through electronic exchange of documents and signatures
(i) if the Offer 10
Acceptance Time occurs (in which case the Merger will be governed by Section 251(h) of the DGCL), as soon as practicable following (but in any event on the same date as) the Offer Acceptance
Time, except if any of the applicable conditions set forth in Section 7 shall not be satisfied or, to the extent permissible by applicable Legal Requirements, waived as of such date, in which case, on the first business day
on which all applicable conditions set forth in Section 7 are satisfied or, to the extent permissible by applicable Legal Requirements, waived, or (ii) if an Offer Termination occurs, as soon as practicable (but in any
event no more than two (2) business days) following the satisfaction or, to the extent permitted by applicable Legal Requirements, waiver of the last of the conditions set forth in Section 7 (other than conditions that
by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Legal Requirements, waiver of such conditions), unless, in each case, another date or time is agreed to in writing by the
Company and Parent. The date on which the Closing occurs is referred to in this Agreement as the Closing Date. (b)
Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the Company and Purchaser shall file or cause to be filed a certificate of merger with the Secretary of State of the State of Delaware with respect to the
Merger, in such form as required by, and executed and acknowledged in accordance with, the relevant provisions of the DGCL, and the Parties shall take all such further actions as may be required by applicable Legal Requirements to make the Merger
effective. The Merger shall become effective upon the date and time of the filing of that certificate of merger with the Secretary of State of the State of Delaware or such later date and time as is agreed upon in writing by the Parties and
specified in the certificate of merger (such date and time, the Effective Time). 2.4 Certificate of
Incorporation and Bylaws; Directors and Officers. (a) As of the Effective Time, the certificate of incorporation of the Company
shall, by virtue of the Merger and without any further action, be amended and restated to read in its entirety as set forth on Annex II and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation
until thereafter changed or amended as provided therein or by applicable Legal Requirements, subject to Section 6.5(a) (provided that the certificate of incorporation of the Surviving Corporation will be amended so that the
name of the Surviving Corporation will be Checkmate Pharmaceuticals, Inc.). (b) As of the Effective Time, the bylaws of the
Surviving Corporation shall be amended and restated to conform to the bylaws of Purchaser as in effect immediately prior to the Effective Time (but amended so that the name of the Surviving Corporation shall be Checkmate Pharmaceuticals,
Inc.), until thereafter changed or amended as provided therein or by applicable Legal Requirements, subject to Section 6.5(a), except that references to the name of Purchaser shall be replaced by references to the
name of the Surviving Corporation. (c) As of the Effective Time, the directors and officers of the Surviving Corporation shall be the
respective individuals who served as the directors and officers of Purchaser as of immediately prior to the Effective Time and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or
removal. 11
2.5 Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Purchaser, the Company or any
stockholder of the Company: (i) any Shares held immediately prior to the Effective Time by the Company (or held in the Companys
treasury) shall automatically be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; (ii) any Shares held immediately prior to the Effective Time by Parent or Purchaser shall automatically be cancelled and retired and shall
cease to exist, and no consideration shall be delivered in exchange therefor; (iii) any Shares held immediately prior to the Effective
Time by any direct or indirect wholly owned Subsidiary of Parent (other than Purchaser) or of the Company shall be converted into such number of shares of stock of the Surviving Corporation such that each such Subsidiary shall own the same
percentage of the outstanding capital stock of the Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time and no other consideration shall be delivered in
exchange therefor; (iv) except as provided in clauses (i), (ii) and (iii) above and subject to
Section 2.5(b), each Share outstanding immediately prior to the Effective Time (other than any Dissenting Shares, which shall have only those rights set forth in Section 2.7) shall be converted
into the right to receive the Offer Price (the Merger Consideration), in each case in cash, without any interest thereon and subject to any applicable withholding Tax in accordance with Section 2.6(e);
and (v) each share of the common stock, $0.01 par value per share, of Purchaser then outstanding shall be converted into one share of
common stock of the Surviving Corporation. From and after the Effective Time, subject to Section 2.5(a)(iii), all Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each
applicable holder of such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such shares of Company Common Stock in accordance with
Section 2.6. (b) If, between the date of this Agreement and the Effective Time, the outstanding Shares are
changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then
the Merger Consideration shall be appropriately adjusted; provided, that nothing in this Section 2.5(b) shall be construed to permit the Company to take any action that is prohibited by the terms of this Agreement.
12
2.6 Surrender of Certificates; Stock Transfer Books. (a) Prior to the Offer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent
(the Depository Agent) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the
Paying Agent) for the holders of Shares to receive the aggregate Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 2.5 and, in connection therewith, prior to
the Closing Date, Parent shall enter into an agreement with the Paying Agent with terms reasonably acceptable to the Company. Prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash
sufficient to make prompt payment of the aggregate Offer Price payable. Prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to
Section 2.5 (together with the amount deposited pursuant the immediately preceding sentence, the Payment Fund). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer
Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be (w) in
obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by Moodys Investors Service, Inc.
or Standard & Poors Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or bankers acceptances of commercial banks with capital exceeding $5 billion, or (z) in money market funds
having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three
(3) months. To the extent that there are losses with respect to such investments, or the Payment Fund diminishes for other reasons below the level required to make prompt payment of the Merger Consideration as contemplated hereby, Parent shall
promptly replace or restore the portion of the Payment Fund lost through investments or other events so as to ensure that the Payment Fund is maintained at a level sufficient to make such payments. Any interest and other income resulting from such
investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be promptly returned to Parent. (b) Promptly after the Effective Time (but in no event later than three (3) business days thereafter), the Surviving Corporation shall
cause the Paying Agent to mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the Certificates) or
(ii) Book-Entry Shares, who, in each case was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall
specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof in accordance with
Section 2.6(e), if applicable) to the Paying Agent, or a customary agents message in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares
in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in
accordance with Section 2.6(e), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and
such other documents as may be required pursuant to the instructions, the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly evidenced by such
Certificates or Book-Entry Shares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the
benefit of the holder thereof. 13
If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Shares is registered on the stock
transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and
other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes
either have been paid or are not required to be paid. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any
circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this
Section 2.6, each Certificate and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by
Section 2.5. (c) At any time following six (6) months after the Effective Time, Parent shall be entitled
to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the
Paying Agent and not disbursed to holders of Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to
look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or
Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificates or Book-Entry Shares for the Merger Consideration
delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or
become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled
thereto. (d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the
Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall
cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. (e)
Notwithstanding any provision contained herein to the contrary, each of the Surviving Corporation, Parent, Purchaser, and the Paying Agent shall be entitled to deduct and withhold from amounts otherwise payable in connection with this Agreement any
amounts as are required to be withheld or deducted with respect to such payment under the Code or any applicable Legal Requirement. To the extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes of this
Agreement as having been paid to the Person in respect of which 14
such deduction or withholding was made. The payment of any transfer, documentary, sales, use, stamp, registration, value added or other Tax by a holder of Shares in connection with the
transactions contemplated by this Agreement, and the filing of any related Tax Return or other documentation with respect to any such Tax, shall be the responsibility of such holder. (f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Shares
formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a customary bond, in such
reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which shall not exceed the Merger Consideration payable with respect to such Certificate), the Paying Agent will pay
(less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly
represented by such Certificate, as contemplated by this Section 2. 2.7
Dissenters Rights. Notwithstanding anything in this Agreement to the contrary, Shares outstanding immediately prior to the Effective Time, and held by holders who are entitled to appraisal rights under Section 262 of
the DGCL and have properly exercised and perfected their respective demands for appraisal of such Shares in the time and manner provided in Section 262 of the DGCL and, as of the Effective Time, have neither effectively withdrawn nor lost their
rights to such appraisal and payment under the DGCL (the Dissenting Shares), shall not be converted into the right to receive Merger Consideration, but shall, by virtue of the Merger, be automatically cancelled and no longer
outstanding, shall cease to exist and shall be entitled to only such consideration as shall be determined pursuant to Section 262 of the DGCL; provided that if any such holder shall have failed to perfect or shall have effectively
withdrawn or lost such holders right to appraisal and payment under the DGCL, such holders Shares shall be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration (less any amounts
entitled to be deducted or withheld pursuant to Section 2.6(e)), and such Shares shall not be deemed to be Dissenting Shares. The Company shall give prompt notice to Parent and Purchaser of any demands received by the
Company for appraisal of any Dissenting Shares, withdrawals of such demands and any other instruments served pursuant to Section 262 of the DGCL, in each case prior to the Effective Time. Parent and Purchaser shall have the right to direct and
participate in, and after the Effective Time, direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent and Purchaser, settle or offer to
settle, or make any payment with respect to, any such demands, or agree or commit to do any of the foregoing. 2.8 Treatment of
Company Options. (a) At the Effective Time, each Company Option that is then outstanding and unexercised, whether or not vested and
which has a per share exercise price that is less than the Merger Consideration (each, an In the Money Option), shall be cancelled and the holder thereof shall be entitled to receive a cash payment equal to (A) the excess, if
any, of (x) the Merger Consideration over (y) the exercise price payable per Share under such In the Money Option, multiplied by (B) the total number of Shares subject to such In the Money Option immediately prior to the Effective
Time (without regard to vesting). 15
(b) At the Effective Time, each Company Option other than an In the Money Option that is
then outstanding and unexercised, whether or not vested, shall be cancelled with no consideration payable in respect thereof. (c) As soon
as reasonably practicable after the Effective Time (but no later than the second payroll date after the Effective Time), Parent shall cause the Surviving Corporation to pay the aggregate consideration payable pursuant to
Section 2.8(a), net of any applicable withholding Taxes or other deductions (which amounts may be paid to current and former employees of the Company through the Surviving Corporations payroll). Without limiting the
generality of the foregoing, any disqualifying disposition with respect to a Company Option that is an incentive stock option (within the meaning of Section 422 of the Code) or of any Shares acquired upon the exercise thereof shall be subject
to Tax reporting and withholding in accordance with applicable Legal Requirements. Prior to the Effective Time, the Company shall take all actions appropriate or necessary (under the Company Equity Plans and award agreements pursuant to which
Company Options are outstanding or otherwise) to effect the transactions described in this Section 2.8, so that as of the Effective Time there are no obligations in respect of the Company Options other than the right to
receive the payments under Section 2.8(a). 2.9 Further Action. If no Offer Termination has
occurred, the Parties agree to take all necessary action to cause the Merger to become effective in accordance with this Section 2 as soon as practicable following the consummation of the Offer without a meeting of the
Companys stockholders, as provided in Section 251(h) of the DGCL. If, at any time after the Effective Time, any further action is reasonably determined by Parent to be necessary or desirable to carry out the purposes of this Agreement or
to vest the Surviving Corporation with full right, title and possession of and to all rights and property of Purchaser and the Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized (in the name of
Purchaser, in the name of the Company and otherwise) to take such action. SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to Parent and Purchaser as follows (it being understood that each representation and warranty
contained in this Section 3 (other than, in the case of clauses (b) and (c) of this paragraph, the representation and warranty contained in Section 3.5(a)(ii)) is subject to:
(a) exceptions and disclosures set forth in the section or subsection of the Company Disclosure Schedule corresponding to the particular Section or subsection in this Section 3; (b) any exception or disclosure set
forth in any other section or subsection of Section 3 of the Company Disclosure Schedule to the extent the applicability of such exception or disclosure is reasonably apparent on its face to qualify such other representation and warranty; and
(c) disclosure in the Company SEC Documents filed on or after January 1, 2021 and publicly available prior to the date of this Agreement (provided that (i) in no event shall any information in the Risk Factors or
Forward-Looking Statements sections of such Company SEC Documents or other cautionary, predictive or forward-looking statements in any other sections of such Company SEC Documents be deemed to be an exception to or disclosure for the
purposes of the Companys representations and warranties contained in this Section 3 and (ii) this clause (c) shall not apply to any of the representations and warranties set forth in Sections
3.1 (Due Organization; Subsidiaries), 3.2 (Certificate of Incorporation and Bylaws), 3.3 (Capitalization), 3.20 (Authority; Binding Nature of Agreement), 3.21 (Takeover Laws), 3.23 (Opinion of Financial
Advisor) or 3.24 (Brokers and Other Advisors)): 16
3.1 Due Organization; Subsidiaries (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the
Companys only Subsidiary is Checkmate Pharmaceuticals Security Corporation, Inc. a security corporation duly organized, validly existing and in good standing under the laws of the State of Massachusetts (the Company
Subsidiary) (each of the Company and the Company Subsidiary, an Acquired Corporation and collectively, the Acquired Corporations). Each Acquired Corporation has all necessary power and authority:
(i) to conduct its business in the manner in which its business is currently being conducted; and (ii) to own and use its assets in the manner in which its assets are currently owned and used. Each Acquired Corporation is qualified or
licensed to do business as a foreign corporation, and is in good standing, in each jurisdiction where the nature of its business requires such qualification or licensing, except where the failure (i) does not have, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) would not reasonably be expected to prevent, materially delay or materially impair the ability of the Company to perform its obligations under this Agreement
or to consummate the Offer and Merger in a timely manner. (b) The Company owns beneficially and of record all of the outstanding shares
of capital stock of the Company Subsidiary, free and clear of all Encumbrances, except for transfer restrictions of general applicability as may be provided under the Securities Act or applicable securities laws. Except for the shares of capital
stock of the Company Subsidiary held by the Company, no Acquired Corporation owns, directly or indirectly, any capital stock or equity interests in (including any security or other Contract convertible into or exchangeable for any such equity or
ownership interest) of any nature in any other Entity, or subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire, or other securities convertible into or exchangeable or exercisable for, any capital stock
or equity interests of any Entity. None of the Acquired Corporations has agreed or is obligated to make, or is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity.
3.2 Certificate of Incorporation and Bylaws. The Company has delivered or made available to Parent accurate and complete
copies of the certificate of incorporation, bylaws and other charter and organizational documents of each Acquired Corporation, including all amendments thereto, as in effect on the date hereof. 3.3 Capitalization (a)
The authorized capital stock of the Company consists of: (i) 300,000,000 Shares, of which 21,630,627 Shares had been issued and were outstanding as of the close of business on April 18, 2022 (the Capitalization Date); and
(ii) 10,000,000 shares of Company Preferred Stock, of which no shares were outstanding as of the Capitalization Date. All of the outstanding Shares and the issued and outstanding shares of capital stock of the Acquired Corporations have been
duly authorized and validly issued, and are fully paid and nonassessable. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options outstanding as of the
Capitalization Date in accordance with their terms and the Company has not issued any Company Options or other equity-based awards. 17
(b) (i) None of the outstanding shares of capital stock of the Acquired Corporations
are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of capital stock of the Acquired Corporations are subject
to any right of first refusal in favor of any Acquired Corporation; (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the
Acquired Corporations have a right to vote; and (iv) there is no Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar
right with respect to), any shares of capital stock of the Acquired Corporations. No Acquired Corporation is under any obligation, or bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any
outstanding shares of capital stock of the Acquired Corporations. The Shares constitute the only outstanding class of securities of the Company registered under the Securities Act. There are no voting trusts or other Contracts with respect to the
voting of any Shares. All outstanding Shares have been offered and issued in compliance in all material respects with all applicable securities Legal Requirements, including the Securities Act and blue sky Legal Requirements. (c) As of the close of business on the Capitalization Date: (i) 4,670,896 Shares were subject to issuance pursuant to Company Options
granted and outstanding under the Company Equity Plans, (ii) 1,980,756 Shares were reserved for future issuance under Company Equity Plans and (iii) 269,790 Shares were reserved for future issuance under the Company ESPP. As of the close of business
on the Capitalization Date, the weighted average exercise price of the Company Options outstanding as of that date was $6.85. Other than as set forth in this Section 3.3(c), there is no issued, reserved for issuance,
outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Corporation. (d) Except as set forth in this Section 3.3, there are no: (i) outstanding shares of capital stock of or other
securities of any Acquired Corporation; (ii) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or
any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of any Acquired Corporation, in each case other than derivative securities not issued by an
Acquired Corporation; (iii) outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of the capital stock or other securities of any Acquired
Corporation; or (iv) stockholder rights plans (or similar plans commonly referred to as a poison pill) or Contracts under which any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital
stock or any other securities. 18
(e) All Company Options are evidenced by award agreements in the forms that have been
provided to Parent. Section 3.3(e) of the Company Disclosure Schedule sets forth a listing of all Persons who hold outstanding Company Options as of the close of business on the Capitalization Date, indicating, with respect
to each Company Option, the number of Shares subject thereto, the date of grant or issuance, the vesting schedule, the exercise price, expiration date and whether such Company Option is intended to be an incentive stock option (within the meaning of
Section 422 of the Code). 3.4 SEC Filings; Financial Statements. (a) Since August 6, 2020, the Company has filed or furnished on a timely basis all reports, schedules, forms, statements and other
documents (including exhibits and all other information incorporated therein) required to be filed or furnished by the Company with the SEC (as supplemented, modified or amended since the time of filing, the Company SEC
Documents). As of their respective dates, or, if amended prior to the date of this Agreement, as of the date of (and giving effect to) the last such amendment (and, in the case of registration statements and proxy statements, on the date
of effectiveness and the dates of the relevant meetings, respectively), the Company SEC Documents complied in all material respects with the requirements of the Securities Act, the Exchange Act or the Sarbanes-Oxley Act of 2002, as amended (the
Sarbanes-Oxley Act), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to those Company SEC Documents, and, except to the extent that information contained in such Company SEC Document
has been revised, amended, modified or superseded (prior to the date of this Agreement) by a later filed Company SEC Document, none of the Company SEC Documents when filed or furnished contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No executive officer of the Company has failed to make the
certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act with respect to any Company SEC Document. (b) The consolidated financial statements (including any related notes and schedules) contained or incorporated by reference in the Company
SEC Documents: (i) complied in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with United States generally accepted accounting principles
(GAAP) applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as may be permitted by the SEC on
Form 10-Q, Form 8-K or any successor form under the Exchange Act); and (iii) fairly presented, in all material respects, the financial position of the Company as of
the respective dates thereof and the results of operations and cash flows of the Company for the periods covered thereby (subject, in the case of the unaudited financial statements, to the absence of notes and to normal and recurring year-end adjustments that are not material). (c) The Company maintains, and at all times since
August 6, 2020, has maintained, a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act) which is designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of
19
records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and the Board of Directors; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company that could have a material effect on the financial statements. The Companys management has completed an
assessment of the effectiveness of the Companys system of internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2021, and, except
as set forth in the Company SEC Documents filed prior to the date of this Agreement, that assessment concluded that those controls were effective. To the knowledge of the Company, except as set forth in the Company SEC Documents filed prior to the
date of this Agreement, since January 1, 2019, neither the Company nor the Companys independent registered accountant has identified or been made aware of: (1) any significant deficiency or material weakness in the design or
operation of the internal control over financial reporting utilized by the Company, which is reasonably likely to adversely affect the Companys ability to record, process, summarize and report financial information; (2) any illegal act or
fraud, whether or not material, that involves the management or other employees of the Company; or (3) any claim or allegation regarding any of the foregoing. (d) The Company maintains and since August 6, 2020 has maintained disclosure controls and procedures as defined in and required by Rule 13a-15 or 15d-15 under the Exchange Act that are reasonably designed to ensure that all information required to be disclosed in the Companys reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that all such information is accumulated and communicated to the Companys management as
appropriate to allow timely decisions regarding required disclosure and to enable the principal executive officer of the Company and the principal financial officer of the Company to make the certifications required under the Exchange Act with
respect to such reports. The Company is, and since August 6, 2020 has been, in compliance in all material respects with all current listing and corporate governance requirements of NASDAQ. (e) Since January 1, 2019, (i) neither the Company nor the Company Subsidiary has received any material written complaint, allegation,
assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or the Company Subsidiary or their respective internal accounting controls, including any credible complaint, allegation,
assertion or claim that the Company or the Company Subsidiary has engaged in questionable accounting or auditing practices and (ii) no attorney representing the Company or the Company Subsidiary, whether or not employed by the Company or the
Company Subsidiary, has reported evidence of a material violation of applicable Legal Requirements, breach of fiduciary duty or similar violation by the Company or the Company Subsidiary or their respective officers, directors, employees or agents
to the Board of Directors or any committee thereof or to any director or officer of the Company pursuant to the rules of the SEC adopted under Section 307 of the Sarbanes-Oxley Act. 20
(f) No Acquired Corporation is a party to, nor does any Acquired Corporation have any
obligation or other commitment to become a party to, off-balance sheet arrangements (as defined in Item 303(a) of Regulation S-K under the Exchange Act)
where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, such Acquired Corporation in the Company SEC Documents. (g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to
the Company SEC Documents. To the knowledge of the Company, none of the Company SEC Documents is the subject of ongoing SEC review and there are no inquiries or investigations by the SEC or any internal investigations pending or threatened, in each
case regarding any accounting practices of the Company. (h) Each document required to be filed by the Company with the SEC in connection
with the Offer, including the Schedule 14D-9 (the Company Disclosure Documents), and any amendments or supplements thereto, when filed, distributed or otherwise disseminated to the
Companys stockholders, as applicable, will comply in all material respects with the applicable requirements of the Exchange Act. The Company Disclosure Documents, at the time of the filing of such Company Disclosure Documents or any supplement
or amendment thereto with the SEC and at the time such Company Disclosure Documents or any supplements or amendments thereto are first distributed or otherwise disseminated to the Companys stockholders, 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 made therein, in light of the circumstances under which they were made, not misleading. (i) The information with respect to the Company that the Company furnishes to Parent or Purchaser specifically for use in the Offer
Documents, and the Schedule 14D-9 and the Merger Proxy Statement (and any amendment or supplement thereto), if applicable, at the time of the filing of and at the time of any distribution or dissemination of
the Offer Documents, the Schedule 14D-9 and/or the Merger Proxy Statement (and any amendment or supplement thereto), if applicable, or on the date that the Offer is consummated or on the date of the Company
Stockholder Meeting, if any, 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 made therein, in light of the circumstances under
which they were made, not misleading. (ii) Notwithstanding the foregoing, the Company makes no representation with respect to statements
made or incorporated by reference therein based on information supplied by or on behalf of Parent or Purchaser for inclusion or incorporation by reference in the Company Disclosure Documents. 3.5 Absence of Changes; No Material Adverse Effect. (a) From December 31, 2021 through the date of this Agreement; (i) except for discussions, negotiations and activities related to this Agreement, the Acquired Corporations have operated in all material
respects in the ordinary course of business consistent with past practice; and 21
(ii) there has not been any Effect that, individually or in the aggregate, has had or would
reasonably be expected to have, a Material Adverse Effect. (b) Since December 31, 2021, there has not been any action taken by the
Acquired Corporations that, if taken during the period from the date of this Agreement through the Effective Time without Parents consent, would require Parents consent under Section 5.2(b) (other than
clauses (iii), and (vii) thereof). 3.6 Title to Assets. Each Acquired Corporation has good and valid
title to all material assets (excluding Intellectual Property Rights) owned by it as of the date of this Agreement, and such assets are owned by the Acquired Corporations free and clear of any Encumbrances (other than Permitted Encumbrances). 3.7 Real Property. (a) The Acquired Corporations do not own any real property or hold any licenses for real property. (b) The Acquired Corporations hold valid and existing leasehold interests in the real property that is leased or subleased by the Acquired
Corporations from another Person (the Leased Real Property), free and clear of all Encumbrances other than Permitted Encumbrances. Section 3.7(b) of the Company Disclosure Schedule sets forth an accurate
and complete list of (and the Company has made available to Parent prior to the date hereof a copy of) each Leased Real Property in effect as of the date hereof. No Acquired Corporation has received any notice regarding any (i) material
violation or breach or default under any lease related to the Leased Real Property that has not since been cured, (ii) pending or threatened condemnation of any portion of the Leased Real Property or (iii) building, fire or zoning code
violations with respect to the Leased Real Property. None of the Leased Real Property is subleased. 3.8 Intellectual
Property. (a) Section 3.8(a) of the Company Disclosure Schedule identifies (i) the name of the current
owner, (ii) the jurisdiction of application or registration and (iii) the application or registration number for each item of Company IP that is Registered IP, and all such Patents and registered Trademarks are subsisting, and to the
knowledge of the Company, valid and enforceable in all respects. In addition, Section 3.8(a) of the Company Disclosure Schedule identifies Company IP that is not Registered IP, including tangible forms of Know-How, such as invention disclosures, proprietary processes, data and trade secrets. Except as set forth in Section 3.8(a) of the Company Disclosure Schedule, no interference,
opposition, reissue, reexamination proceeding, inter partes review, cancellation proceeding, or other Legal Proceeding (other than routine examination proceedings with respect to pending applications) is pending or, to the knowledge of the
Company, threatened against any Acquired Corporation, in which the scope, validity, enforceability, priority, inventorship or ownership of any Registered IP owned by or exclusively licensed to an Acquired Corporation is being contested or
challenged. (b) The Acquired Corporations are the sole and exclusive owners or licensees of all Company IP owned or purported to be owned
or licensed by the Acquired Corporations, free and clear of all Encumbrances other than Permitted Encumbrances and the Acquired Corporations have the legal power to convey to a successor all of their ownership, rights, interests, and control in all
Company IP. 22
(c) To the knowledge of the Company, no Company Associate owns or has any valid material
claim, right (whether or not currently exercisable) or interest to or in any Company IP owned by an Acquired Corporation and each Company Associate who is or was involved in the creation or development of any Company IP has signed an agreement
containing a present assignment of Intellectual Property Rights to an Acquired Corporation and confidentiality provisions protecting the Company IP, and there is no material breach under any such agreement. (d) Except as set forth on Section 3.8(d) of the Company Disclosure Schedule, no funding, facilities or personnel of
any Governmental Body or any university, college, research institute, educational institution or other institutions is being or has been used to create, in whole or in part, Company IP owned by the Acquired Corporations, except for any such funding
or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership or any rights to Company IP. (e) The Acquired Corporations have taken reasonable steps to maintain the confidentiality of and otherwise protect and enforce their rights in
all Know-How held by an Acquired Corporation in all material respects. (f)
Section 3.8(f) of the Company Disclosure Schedule sets forth each license agreement pursuant to which an Acquired Corporation licenses in any material Intellectual Property Right (each an In-bound License) or licenses out any material Intellectual Property Right owned by an Acquired Corporation (each an Out-bound License)
(provided, that, In-bound Licenses shall not include commercially available off-the-shelf software or non-disclosure agreements entered into in the ordinary course of business consistent with past practice, and, Out-bound Licenses shall not include non-exclusive outbound licenses contained in non-disclosure, service provider, contract research organization or clinical trial agreements entered into in the ordinary course
of business consistent with past practice). (g) To the knowledge of the Company, the operation of the Acquired Corporations
business as currently conducted does not infringe, misappropriate or otherwise violate in any respect any Intellectual Property Rights owned by any other Person. No Legal Proceeding is pending (or, to the knowledge of the Company, is being
threatened) against an Acquired Corporation relating to any actual, alleged or suspected infringement, misappropriation or other violation of any Intellectual Property Rights of another Person. Except as would not reasonably be expected,
individually or in the aggregate, to be material to the Acquired Corporations, taken as a whole, no Acquired Corporation has received any notice or other communication relating to any actual, alleged or suspected infringement, misappropriation or
other violation of any Intellectual Property Right of another Person by an Acquired Corporation. (h) To the knowledge of the Company, no
Person is infringing, misappropriating or otherwise violating, or has infringed, misappropriated or otherwise violated in any material respect any Company IP. No Legal Proceeding is pending or threatened in writing by an Acquired Corporation
relating to any actual, alleged or suspected material infringement, misappropriation or other violation of any Company IP by any other Person. 23
(i) None of the Company IP owned by an Acquired Corporation is subject to any pending or
outstanding injunction, directive, order, judgment, settlement, consent ruling or other disposition of dispute that adversely restricts the use, transfer or licensing of any such Company IP by an Acquired Corporation, or otherwise adversely affects
in any respect the validity, scope, use, registrability, or enforceability of any such Company IP. (j) The consummation of the
Transactions will not result in the loss of, impairment of, violation of, alteration in, forfeiture of, termination of, or payment of any material additional amounts with respect to, nor require the consent of any other Person in respect of, the
Company IP. (k) To the knowledge of the Company, each of the Acquired Corporations owns or is licensed to use, or otherwise has the right
to use, all Registered IP necessary or useful for the conduct of business substantially in the manner conducted, or as currently contemplated to be conducted. The execution, delivery, and performance of the Agreement will not result in the loss,
termination or material impairment of any rights in the Registered IP owned by or licensed to an Acquired Corporation. (l) Within three
(3) business days prior to the Expiration Date, the Company shall provide Purchaser with a schedule of any Taxes, maintenance fees or actions falling due within ninety (90) days of such expiration with respect to such patents, registered
trademarks and registered copyrights, and applications for issuance of registration of any of the foregoing. (m) To the knowledge of the
Company, the Company has (i) used commercially reasonable efforts to diligently file and prosecute patent applications for all inventions included in Company IP, (ii) complied with all applicable laws, including any duties of candor to
applicable patent offices, in connection with the filing, prosecution and maintenance of the Patents included in Company IP, (iii) each of the Patents included in Company IP properly identifies each inventor of the claims thereof as determined
in accordance with the applicable law of the jurisdiction in which such Patent is issued or is pending. To the knowledge of the Company, all material filings, renewals, fees and other maintenance actions related to the Registered IP have been timely
filed with and paid to each relevant Governmental Authority and internet domain name registrar. (n) The Company has established and
implemented organizational, physical, administrative and technical measures regarding privacy, cybersecurity and data security that are commercially reasonable and consistent in all material respects with all (i) Data Privacy Laws,
(ii) applicable industry standards including the Payment Card Industry Data Security Standard, (iii) publicly facing policies and notices of the Company relating to Personal Information, and (iv) Contract obligations of the Company or
any of its Subsidiaries relating to the Processing of Personal Information ((i) through (iv), collectively, the Privacy and Security Requirements). The Acquired Corporations are, and since January 1, 2019 have been, in all
material respects in compliance with and not in material default under or in material violation of any applicable Privacy and Security Requirements and, since January 1, 2019, no Acquired Corporation has been given notice of or been charged
with any material violation of, any applicable Privacy and Security Requirement. To the knowledge of the Company, since January 1, 2019, no Acquired Corporation has experienced any material security breach or cybersecurity event, including,
without limitation, any theft, loss, or unauthorized access or acquisition of Personal Information. 24
(o) The Company has not embedded, used or distributed any open source, copyleft or community
source code (including but not limited to any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License or similar license arrangement or other
distribution model described by the Open Source Initiative at www.opensource.org, collectively Open Source Software) in connection with any of its products or services that are generally available or in development in any manner
that would materially restrict the ability of the Company to protect its proprietary interests in any such product or service or in any manner that requires, or purports to require (i) any Company IP (other than the Open Source Software itself)
be disclosed or distributed in source code form or be licensed for the purpose of making derivative works, (ii) any restriction on the consideration to be charged for the distribution of any Company IP, (iii) the creation of any obligation
for the Company with respect to Company IP owned by the Company, or the grant to any third party of any rights or immunities under Company IP owned by the Company, or (iv) any other limitation, restriction or condition on the right of the
Company with respect to its use or distribution of any Company IP. 3.9 Contracts. (a) Section 3.9(a) of the Company Disclosure Schedule identifies each Contract to which any Acquired Corporation is
a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Corporation is a party or by which it is bound as of the date of
this Agreement (whether or not set forth on Section 3.9(a) of the Company Disclosure Schedule) constitutes a Material Contract: (i) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which
(A) an Acquired Corporation will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on such Acquired Corporations conduct; (ii) any Contract (A) materially limiting the freedom or right of any Acquired Corporation or any of its Affiliates to engage in any
line of business or to compete with any other Person in any location or line of business, (B) containing any most favored nations terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or
(C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Corporation or any of its Affiliates to sell, distribute or manufacture any products or services for any other Person; (iii) any Contract (A) under which aggregate payments in excess of $500,000 were made by or to the Acquired Corporations in the fiscal
year ending December 31, 2021 or (B) that requires by its terms or is reasonably expected to require the payment or delivery of cash or other consideration to or by any Acquired Corporation in an amount having an expected value in excess
of $500,000 in the fiscal year ending December 31, 2022 and in each case which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days notice; 25
(iv) any Contract relating to (A) the pricing or reimbursement terms for the Key
Product, (B) the distribution of the Key Product (for the avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the purchase from any Acquired Corporation of the Key Product; (v) any Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of any
Acquired Corporation; (vi) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar
profit sharing arrangement; (vii) any Contract with a material group purchasing organization; (viii) any Contract (excluding any Employee Plan) that by its express terms requires an Acquired Corporation, or any successor to, or
acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a Change of Control Payment) or gives another Person a right to receive or elect to
receive a Change of Control Payment; (ix) any Contract that prohibits the declaration or payment of dividends or distributions in
respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation; (x) any (A) In-bound License and (B) Out-bound
License; (xi) any Contract for the lease or sublease of any real property; (xii) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to
Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (xiii) any Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more
of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing; (xiv) any Contract pursuant to which any Acquired Corporation has continuing obligations or interests involving (A) milestone or similar
payments, including upon the achievement of regulatory or commercial milestones, in each case in excess of $1,000,000 of future payments in the aggregate or (B) payment of royalties or other amounts calculated based upon any revenues or income
of any Acquired Corporation, in each case in excess of $1,000,000 of future payments in the aggregate; (xv) any Contract that relates to
the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of the Key Product, which, if terminated or not renewed, would reasonably be expected to have a
material and adverse effect on the Key Product; 26
(xvi) any Contract that is with any Person who is a supplier to the Company of
(A) material tangible products or services relating to the Key Product, or (B) such products or services relating to the Key Product that cannot be obtained from another source for a substantially similar cost with substantially similar
quality; (xvii) any Contract that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of the Companys product candidates, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Companys product
candidates; (xviii) any Contract with any Governmental Body under which payments in excess of $500,000 were received by the Acquired
Corporations in the most recently completed fiscal year or under which payments in excess of such amount are reasonably expected to be made in the current or any future fiscal year; (xix) any Contract for the acquisition or divestiture of assets that contains financial covenants, indemnities or other payment obligations
that would reasonably be expected to result in the receipt or making of future payments by the Company or any Company Subsidiary in excess of $1,000,000; and (xx) any Contract not otherwise required to be disclosed under the foregoing clauses (i) through (xix) that would
reasonably be expected to, as of the date hereof, involve payments by or to the Company of more than $1,000,000 between the date hereof and December 31, 2024 and which cannot be cancelled by the Company without penalty or further payment
without more than ninety (90) days notice. (b) As of the date of this Agreement, the Company has either delivered or made
available to Parent an accurate, unredacted and complete copy of each Material Contract or has publicly made available an accurate, unredacted and complete copy of such Material Contract in the Electronic Data Gathering, Analysis and Retrieval
(EDGAR) database of the SEC. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no (i) Acquired Corporation nor, to the knowledge of the Company, the other party to
a Material Contract is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the Company, the other party to a Material Contract has taken or failed to take any action that with
or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract and (ii) each Material Contract is, with respect to the Acquired Corporations and, to the knowledge of the Company,
the other party, a valid and binding agreement in full force and effect, enforceable in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar
laws of general applicability relating to or affecting creditors rights, and by general equitable principles. Since January 1, 2019, the Acquired Corporations have not received any written notice regarding any material violation or breach
or default under any Material Contract that has not since been cured. No Acquired Corporation has waived in writing any rights under any Material Contract, the waiver of which would have, either individually or in the aggregate, a Material Adverse
Effect. 27
3.10 Liabilities. The Acquired Corporations do not have any liabilities or
obligations (whether accrued, absolute, contingent, fixed or otherwise) except for: (i) liabilities reflected or reserved against in the audited consolidated balance sheet (or notes thereto) of the Company and the Company Subsidiary as of
December 31, 2021; (ii) liabilities or obligations incurred pursuant to the terms of this Agreement; (iii) liabilities or obligations that have been discharged or paid in full; (iv) liabilities incurred in the ordinary course of
business consistent with past practice since December 31, 2021; and (v) liabilities that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 3.11 Compliance with Legal Requirements. The Acquired Corporations are, and since January 1, 2019 have been, in all
material respects in compliance with and not in default under or in violation of any applicable Legal Requirements and, since January 1, 2019, no Acquired Corporation has been given written notice of or been charged with any material violation
of, any applicable Legal Requirement. Since January 1, 2019, the Acquired Corporations have not been given written notice by a Governmental Body of being under investigation with respect to and have not been threatened in writing to be charged
with or given written notice of any material violation of, any Legal Requirements. 3.12 Regulatory and Compliance Matters.
(a) The Acquired Corporations have filed, maintained or furnished with the applicable regulatory authorities (including the FDA, the EMA,
the United Kingdoms Medicines and Healthcare Products Regulatory Agency (the MHRA) or any other Governmental Body performing functions similar to those performed by the FDA, the EMA, the MHRA or otherwise having jurisdiction
over the safety, efficacy, approval, development, testing, labeling, manufacture, storage, shipment, import, export or distribution of pharmaceutical products, including the Centers for Medicare & Medicaid Services (such Governmental
Bodies, collectively, the Specified Governmental Bodies) and institutional review boards, data safety monitoring boards or ethics committees responsible for review, oversight, or approval of any clinical trial involving a product
candidate of the Acquired Corporations in any jurisdiction (such boards and committees, collectively, Review Boards) all required material filings, declarations, listings, registrations, reports or submissions, including any
required adverse event reports. All such filings, declarations, listings, registrations, reports or submissions (i) have been made available to Parent and (ii) were in material compliance with applicable Legal Requirements when filed, and
no deficiencies have been asserted in writing by any applicable Governmental Body with respect to any such filings, declarations, listings, registrations, reports or submissions. (b) The Acquired Corporations hold all Regulatory Permits required for their business as currently conducted, and each such Regulatory Permit
is valid and in in full force and effect. The Acquired Corporations are in compliance in all material respects with the terms and requirements of such Regulatory Permits. Since January 1, 2019, no deficiencies have been asserted in writing by
any applicable Governmental Body with respect to any Regulatory Permits of the Acquired Corporations. 28
(c) Since January 1, 2019, the Acquired Corporations have not received any written
notice from a Governmental Body that any of their products are misbranded as defined in 21 U.S.C. § 352 or adulterated as defined in 21 U.S.C. § 351, as amended, and the rules and regulations promulgated thereunder, or as defined in
comparable Legal Requirements in any jurisdiction. (d) Except as set forth in the Company Disclosure Schedule, all preclinical and
clinical investigations sponsored or conducted by the Acquired Corporations or, to the knowledge of the Company, any of the Acquired Corporations research, development, collaboration or similar commercialization partners with respect to any
material product or material product candidate of the Acquired Corporations (solely while acting in such capacity) (Collaboration Partners) have been and are being conducted in material compliance with applicable Legal
Requirements, rules and regulations, including Good Clinical Practice Requirements, Good Manufacturing Practice Requirements, Good Laboratory Practice Requirements and federal and state laws, rules and regulations restricting the use and disclosure
of individually identifiable health information. No human clinical trial conducted or sponsored by or on behalf of any Acquired Corporation, or, to the knowledge of the Company, any Collaboration Partner, has been terminated or suspended by FDA or
any other applicable Governmental Body or any Review Board. No Acquired Corporation nor, to the knowledge of the Company, any Collaboration Partner has received any written notice or other correspondence from any Specified Governmental Bodies or
Review Board with respect to any ongoing clinical or pre-clinical studies or tests requiring or recommending the termination, suspension or material modification of such studies or tests. (e) No Acquired Corporation nor, to the knowledge of the Company, any Collaboration Partner has (i) made an untrue statement of a
material fact or fraudulent statement to the Specified Governmental Bodies, (ii) failed to disclose a material fact required to be disclosed to the Specified Governmental Bodies or (iii) committed any other act, made any statement or
failed to make any statement, that (in any such case) establishes a reasonable basis for the FDA to invoke its Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities Final Policy. As of the date of this Agreement, no Acquired
Corporation nor, to the knowledge of the Company, any Collaboration Partner is the subject of any pending or, to the knowledge of the Company, threatened investigation by the FDA pursuant to its Fraud, Untrue Statements of Material Facts, Bribery,
and Illegal Gratuities Final Policy. No Acquired Corporation nor, to the knowledge of the Company, any officers, employees, agents or clinical investigators or Collaboration Partner has been suspended or debarred or convicted of any crime or engaged
in any conduct that would reasonably be expected to result in (A) debarment under 21 U.S.C. § 335a or any similar Legal Requirement or (B) exclusion under 42 U.S.C. § 1320a-7 or any similar
Legal Requirement. (f) Each Acquired Corporation and, to the knowledge of the Company, each Collaboration Partner is in compliance and
has, since January 1, 2019, been in compliance, in each case, in all material respects, with all pharmaceutical- and healthcare-related Legal Requirements applicable to the operation of its business, including (together with their implementing
regulations) (i) the FDCA; (ii) the Clinical Laboratory Improvement Amendments of 1988; (iii) the Health Insurance Portability and Accountability Act of 1996, the Health Information and Technology for Economic and Clinical Health Act;
(iv) Section 5(a) of the FTC Act; (v) the federal Medicare and Medicaid statutes; (vi) government program and price reporting Legal Requirements under the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8), the Public Health Service Act (42 U.S.C. 29
§ 256b(a)(4)), and the United States Department of Veterans Affairs Federal Supply Schedule (38 U.S.C. § 8126) including requirements under related contracts and agreements;
(vii) the Physician Payments Sunshine Act; (viii) the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7(b)); (ix) the Stark Law (42 U.S.C. § 1395nn); (x) the federal False Claims Act (42
U.S.C. § 1320a-7b(a)); (xi) the Civil Monetary Penalty provisions of the Social Security Act; (xii) Legal Requirements the violation of which is cause for exclusion from any federal health care
program; (xiii) state laws relevant to pharmaceutical and healthcare products, companies, and services; and (xiv) any foreign equivalent Legal Requirements in respect of any of the foregoing, including, in the case of the European Union,
any such equivalent Laws of the European Union and the corresponding implementing national rules of each member thereof, as well as the equivalent Legal Requirements of the United Kingdom. No Acquired Corporation nor, to the knowledge of the
Company, any Collaboration Partner is subject to any enforcement, regulatory or administrative proceedings, audit, or investigation against or affecting such Acquired Corporation relating to or arising under the FDCA or the other pharmaceutical- and
healthcare-related Legal Requirements described in this Section 3.12(f) or similar Legal Requirements, and no such enforcement, regulatory or administrative proceeding, or audit or investigation has been threatened in
writing. (g) Since January 1, 2019, there have been no product recalls conducted by the Acquired Corporations or, to the knowledge
of the Company, any Collaboration Partner and no written requests from any Governmental Body requiring the Acquired Corporations or, to the knowledge of the Company, any Collaboration Partner to cease to manufacture, market, distribute or sell any
products of the Acquired Corporations. (h) To the knowledge of the Company, no person has filed against the Company an Action relating to
the Company under any federal or state whistleblower statute, including under the False Claims Act of 1863 (31 U.S.C. § 3729 et seq.). (i) Since January 1, 2019, no Acquired Corporation has been notified in writing by any Governmental Body or Review Board of any failure
(or any investigation with respect thereto) by it or any Collaboration Partner, representative, agent, licensor, licensee, contract manufacturing organization, contract research organization, clinical trial investigator, clinical trial site, partner
or distributor to comply with any Drug Law including those pertaining to programs or systems regarding the conduct of clinical studies, product quality, notification of facilities and products, corporate integrity, pharmacovigilance and conflict of
interest, including current Good Manufacturing Practice Requirements, Good Laboratory Practice Requirements, Good Clinical Practice Requirements, establishment registration and product listing requirements, requirements applicable to the debarment
of individuals, requirements applicable to the conflict of interest of clinical investigators and Adverse Drug Reaction Reporting requirements, in each case with respect to any material product or material product candidates of any Acquired
Corporation, except for such failures or investigations which would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Corporations. (j) Since January 1, 2019, no Acquired Corporation or, to the knowledge of the Company, any Collaboration Partner, has received any FDA
Form 483 or warning letter, untitled letter, inspectional observation or other similar correspondence or written notice from FDA or any other Governmental Body. 30
(k) No Acquired Corporation is a party to any corporate integrity agreement, monitoring
agreement, consent decree, settlement order or similar agreement with or imposed by any Specified Governmental Body. 3.13
Certain Business Practices. Since January 1, 2019, no Acquired Corporation, nor any of their respective officers, directors or employees, nor, to the knowledge of the Company, any of their respective agents or Collaboration Partners (in
each case, acting in their capacity as such and in connection with activities undertaken for or on behalf of any Acquired Corporation) has (i) used any funds (whether of an Acquired Corporation or otherwise) for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii) made or offered to make any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns,
(iii) accepted any unlawful payments, (iv) violated any provision of any applicable Anti-Corruption Laws or any rules or regulations promulgated thereunder, applicable anti-money laundering laws or any rules or regulations promulgated
thereunder or any applicable Legal Requirement of similar effect or (v) materially violated any applicable Global Trade Laws and Regulations. Since January 1, 2019, no Acquired Corporation has received any written communication from a
Governmental Body that alleges any of the foregoing. 3.14 Governmental Authorizations. The Acquired Corporations hold all
material Governmental Authorizations necessary to enable the Acquired Corporations to conduct their business in the manner in which such business is currently being conducted. The material Governmental Authorizations held by the Acquired
Corporations are valid and in full force and effect. The Acquired Corporations are in compliance in all material respects with the terms and requirements of such Governmental Authorizations. 3.15 Tax Matters. (a) Each Acquired Corporation has (i) prepared and timely filed (taking into account any valid extension of time within which to file)
all income or franchise Tax Returns and all other material Tax Returns that are required to be filed by or with respect to any Acquired Corporation, and all such Tax Returns are true, correct and complete in all material respects, (ii) timely
paid in full to the relevant Governmental Body all material Taxes required to be paid by any Acquired Corporation (whether or not shown on any Tax Return), and (iii) within the time and in the manner prescribed by any applicable Legal
Requirement, deducted, withheld, collected, and paid over to the proper Governmental Body all material amounts required to be so deducted, withheld, collected, or paid and has otherwise complied in all material respects with all applicable Legal
Requirements relating to the payment, withholding, collection, and remittance of Taxes (including information reporting requirements). (b) The charges, accruals and reserves for Taxes with respect to each Acquired Corporation reflected in the Company SEC Documents are
adequate, in accordance with GAAP, to cover all material Taxes payable by each Acquired Corporation for all periods through the date of the Company SEC Documents, and such charges, accruals, and reserves, as adjusted for the passage of time and
ordinary course of business operations through the Closing Date, are adequate to cover all material Taxes payable by each Acquired Corporation that are currently pending. 31
(c) There is no claim, litigation, examination, audit, investigation, or other proceeding
ongoing, threatened in writing or pending with respect to any material Taxes or material Tax matters (including material Tax Returns) of or with respect to any Acquired Corporation. No Governmental Body in a jurisdiction in which an Acquired
Corporation does not file Tax Returns has made a claim in writing that an Acquired Corporation is or may be subject to Tax by, or required to file Tax Returns with respect to Taxes in, such jurisdiction. No Acquired Corporation is or has been
subject to Tax in any jurisdiction other than its place of incorporation by virtue of having a permanent establishment (as defined by applicable Tax treaty) or other place of business or taxable presence in that jurisdiction. The Tax Returns of each
Acquired Corporation have never been examined, and there is no outstanding extension or waiver of any statute of limitations with respect to the assessment or collection of material Taxes from any Acquired Corporation. (d) No adjustment with respect to any material Tax Return, claim for any material additional Tax, or deficiencies for material Taxes have been
received by any Acquired Corporation, except for any such adjustment, claim, or deficiency that has been fully satisfied by payment, settled, or withdrawn. All assessments for material Taxes due from any Acquired Company with respect to completed
and settled audits or examinations or any concluded litigation have been timely paid in full. (e) No Acquired Corporation is the
beneficiary of any Tax exemption, Tax holiday, or other Tax reduction contract or order. (f) No Acquired Corporation (i) is or has
been a member of any affiliated, consolidated, combined, unitary, group relief or similar group for purposes of filing Tax Returns or paying Taxes (other than a group the common parent of which is an Acquired Corporation), (ii) is or has been a
party to or bound by, or has any obligation under, any Tax allocation, sharing, indemnity, or reimbursement agreement or similar contract or arrangement relating to the apportionment, sharing, assignment, indemnification or allocation of any Tax or
Tax asset (other than any agreement or arrangement solely between the Acquired Corporations or customary Tax indemnification provisions in Contracts entered into in the ordinary course of business, the principal purpose of which is not related to
Taxes), or (iii) has any material liability for Taxes of any Person (other than the Acquired Corporations) under Treasury Regulations Section 1.1502-6 (or any similar or analogous provision of state,
local or non-U.S. law), as a transferee or successor, by contract, or otherwise. No Acquired Corporation is required to make any payments under Section 965(h)(1) of the Code. (g) No Acquired Corporation has been a distributing corporation or a controlled corporation (within the meaning of
Section 355(a)(1)(A) of the Code) in any distribution that was purported or intended to qualify for tax-free treatment under Section 355 of the Code (or any analogous or similar provision of state,
local or non-U.S. law) occurring during the two-year period ending on the date of this Agreement. (h) No Acquired Corporation has participated in any listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any analogous or similar provision of state, local or non-U.S. law). 32
(i) No Acquired Corporation is or will be required to include any material item of income
in, or exclude any material item of deduction from, taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a result of any (i) adjustment pursuant to Section 481 of the Code (or any similar or analogous
provision of state, local, or non-U.S. law), (ii) closing agreement (within the meaning of Section 7121 of the Code (or any analogous or similar provision of state, local or non-U.S. income Tax law)) entered into at or prior to the Closing, (iii) installment sale, intercompany transaction, or open transaction made or entered into prior to the Closing, or any excess loss
account within the meaning of the regulations under Section 1502 of the Code (or any analogous or similar provision of state, local, or non-U.S. Tax law) existing as of immediately prior to the
Closing, or (iv) prepaid amount received at or prior to the Closing. (j) No Acquired Corporation is bound with respect to the
current or any future taxable period by any closing agreement (within the meaning of Section 7121(a) of the Code (or any similar or analogous provision of state, local or non-U.S. law)) or
other ruling or written agreement with a Tax authority, in each case, with respect to material Taxes. (k) There are no Encumbrances in
respect of or on account of material Taxes upon any assets or properties of any Acquired Corporation, other than statutory Encumbrances for Taxes not yet due and payable. (l) Section 3.15(l) of the Company Disclosure Schedule sets forth, as of December 31, 2021, the net operating losses for U.S.
federal income Tax purposes of the consolidated U.S. federal income Tax Return group of which the Company is the common parent (the NOLs). As of the Closing Date, the NOLs will be no less than $169,300,000. Except as may result
from the transactions contemplated by this Agreement or as set forth in Section 3.15(l) of the Company Disclosure Schedule, the NOLs are not subject to limitation under Section 382 or any other provision of the Code or
any comparable provision of state, local, or foreign Tax law. 3.16 Employee Matters; Benefit Plans. (a) The employment of each of the Companys or its Subsidiaries employees is terminable by the Company at will. (b) Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other Contract with a labor
organization representing any of its employees. Since January 1, 2019, there has not been any strike, lockout, labor dispute or union organizing activity, or any threat thereof, by any employees of the Company or its Subsidiaries with respect
to their employment with the Company or its Subsidiaries. Since January 1, 2019, the Company has been in material compliance with all applicable Legal Requirements related to employment and employment practices, including terms and conditions
of employment, wages and hours, discrimination, employee and independent contractor classification, workers compensation, family and medical leave, the immigration and occupational safety and health requirements, and no claims or Legal
Proceedings are pending or threatened with respect to the foregoing. To the knowledge of the Company, no allegations of sexual harassment or misconduct have been made against any current or former employee or other service provider of the Company or
any of its Subsidiaries. Neither the Company nor any of its Subsidiaries have entered into any settlement agreement related to allegations of sexual harassment or misconduct by any current or former employee or other service provider. 33
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth
an accurate and complete list of the material Employee Plans. To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each Employee Plan accurate and complete
copies of: (i) all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof; (ii) the most recent determination letters,
rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (DOL); (iii) the most recent summary plan descriptions and any material modifications thereto;
(iv) the Form 5500 filed with the DOL for the last two (2) plan years; (v) the most recently prepared financial statements or actuarial reports; and (vi) any other material correspondence with a Governmental Body. (d) Neither the Company nor any other Person that would be or, at any relevant time, would have been considered a single employer with the
Company under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or otherwise incurred any liability with respect to, (i) a plan subject to Title IV or Section 302 of ERISA or Code Section 412 or
4971, including any single employer defined benefit plan or any multiemployer plan, each as defined in Section 4001 of ERISA, or (ii) a plan that has two or more contributing sponsors at least two of whom are not
under common control, within the meaning of Section 4063 of ERISA. (e) Each of the Employee Plans that is intended to be qualified
under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the
Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect the qualified status of any such Employee Plan. Each of the Employee Plans is now and has
been operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. There are no pending or threatened claims (other than routine claims for benefits in the
ordinary course of business consistent with past practice) or Legal Proceedings, and, to the knowledge of the Company, no set of circumstances exists that may reasonably give rise to a claim or Legal Proceeding, against the Employee Plans, any
fiduciaries thereof or the assets of any related trusts. No Employee Plan is under audit or the subject of an investigation by the IRS, the DOL, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Body, nor is any such audit
or investigation pending or, to the knowledge of the Company, threatened. The Company is not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant
to Section 4975 or 4976 of the Code. Each Employee Plan that is in any part a nonqualified deferred compensation plan subject to Section 409A of the Code complies both in form and operation with the requirements of
Section 409A of the Code in all material respects. All contributions required to be made to any Employee Plan by applicable Legal Requirements or otherwise, and all premiums due or payable with respect to insurance policies funding any Employee
Plan, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the financial statements of the Company in accordance with GAAP. 34
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the
Code (or any other similar state or local Legal Requirement), none of the Company, any of its Subsidiaries or any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with
respect to, any present or former employee, officer, director or other service provider of the Company or its Subsidiaries pursuant to any retiree medical benefit plan or other retiree welfare plan. (g) The consummation of the Transactions (whether alone or in combination with other events or circumstances) will not, directly or indirectly
(i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company or its Subsidiaries to severance pay, unemployment compensation or any other payment or benefit, (ii) accelerate
the time of payment, vesting or exercisability, or materially increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider, (iii) cause the Company or its
Subsidiaries to transfer or set aside any assets to fund any compensation or benefits under any Employee Plan, or (iv) result in any limitation on the right of the Company or its Subsidiaries to amend, merge, terminate or receive a reversion of
assets from any Employee Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or its Subsidiaries in connection with the
Transactions (whether alone or in combination with other events or circumstances) will be an excess parachute payment within the meaning of Section 280G of the Code. (h) No Employee Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or
409A of the Code, or otherwise. 3.17 Environmental Matters. (a) The Acquired Corporations and, to the knowledge of the Company, all Collaboration Partners are, and since January 1, 2019 have been,
in compliance in all material respects with all applicable Environmental Laws, which compliance includes obtaining, maintaining or complying with all Governmental Authorizations required under Environmental Laws for the operation of their business.
(b) There is no material Legal Proceeding arising under any Environmental Law that is pending or, to the knowledge of the Company,
threatened against any Acquired Corporation or, to the knowledge of the Company, in respect of any Leased Real Property. (c) No Acquired
Corporation has received any written notice of, or entered into any legally binding agreement, order, settlement, judgment, injunction or decree involving, uncompleted, outstanding or unresolved material violations, liabilities or requirements on
the part of any Acquired Corporation arising under Environmental Laws. (d) There are and have been no Hazardous Materials Released, used
or disposed of by any Acquired Corporation on, at or under any property or facility, including the Leased Real Property, in a manner and concentration that would reasonably be expected to result in any material claim against or liability of an
Acquired Corporation under any Environmental Law. 35
(e) To the knowledge of the Company, there are and have been no Releases on, at, under or
from any property or facility, including the Leased Real Property, that would reasonably be expected to result in any material claim against or liability of an Acquired Corporation under any Environmental Law. (f) No Acquired Corporation has contractually assumed any material liability of another Person relating to Environmental Laws. 3.18 Insurance. The Company has delivered or made available to Parent an accurate and complete copy of all material insurance
policies and self-insurance programs relating to the business, assets and operations of the Acquired Corporations (collectively, the insurance policies). The Acquired Corporations maintain insurance coverage in such amounts and
covering such risks as are in accordance in all material respects with normal industry practice for companies of similar size and stage of development. All such insurance policies are in full force and effect, no notice of termination, cancellation,
non-renewal or material modification has been received (other than a notice in connection with ordinary renewals), all premiums due and payable thereon have been paid in accordance with the terms of such
policies and there is no existing material default or event which, with the giving of notice or lapse of time or both, would constitute a material default, by any insured thereunder. As of the date of this Agreement, there is no material claim
pending under any of the Companys insurance policies as to which coverage has been questioned, denied or disputed by the underwriters of such policies. Section 3.18 of the Company Disclosure Schedule sets forth an
accurate and complete list of the insurance policies. 3.19 Legal Proceedings; Orders. (a) There are no Legal Proceedings pending (or, to the knowledge of the Company threatened) against any Acquired Corporation or, to the
knowledge of the Company, against any present or former officer, director or employee of an Acquired Corporation in such individuals capacity as such, except as, individually or in the aggregate, (i) has not been, and would not reasonably
be expected to be, material to the Acquired Corporations, taken as a whole, and (ii) as of the date hereof would not reasonably be expected to prevent, materially delay or materially impair the ability of the Company to perform its obligations
under this Agreement or to consummate the Offer and Merger in a timely manner. (b) There is no order, writ, injunction or judgment to
which an Acquired Corporation is subject that, individually or in the aggregate, (i) would have, or would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to prevent, materially delay or
materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the Offer and Merger in a timely manner. (c) No material investigation or review by any Governmental Body with respect to an Acquired Corporation is pending or is being threatened.
36
3.20 Authority; Binding Nature of Agreement. The Company has the corporate
power and authority, and has taken all corporate action necessary, to execute and deliver and to perform its obligations under this Agreement, and assuming the representations and warranties in the second sentence of
Section 4.8 are true and correct, to consummate the Transactions, including the Offer and the Merger (subject, in the case of the Merger, if an Offer Termination has occurred, to the adoption of this Agreement by holders of
at least a majority of the outstanding shares of Company Common Stock entitled to vote thereon (the Company Stockholder Approval)). The Board of Directors has (a) determined that this Agreement and the Transactions, including
the Offer and the Merger, are fair to, and in the best interest of, the Company and its stockholders, (b) declared it advisable to enter into this Agreement, (c) approved the execution, delivery and performance by the Company of this
Agreement and the consummation of the Transactions, including the Offer and the Merger and no other corporate proceedings on the part of the Company or vote of the Companys stockholders are necessary to authorize the consummation of the
Transactions, other than, in the case of the Merger, if an Offer Termination has occurred, the Company Stockholder Approval, (d) resolved that (i) if the Offer Acceptance Time occurs, the Merger shall be effected under Section 251(h)
of the DGCL and will be effected as soon as practicable following the consummation of the Offer, and (ii) if an Offer Termination occurs, the Merger will be governed by Section 251(c) of the DGCL and (e) resolved to recommend that the
stockholders of the Company tender their Shares to Parent or Purchaser, as applicable, pursuant to the Offer, which resolutions, unless the Board of Directors has made a Company Adverse Recommendation Change in accordance with
Section 6.1(b), have not been subsequently withdrawn or modified in a manner adverse to Parent as of the date of this Agreement. This Agreement has been duly executed and delivered by the Company, and assuming due
authorization, execution and delivery by Parent and Purchaser, this Agreement constitutes the legal, valid and binding obligation of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement may be
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights, and by general equitable principles. Following the Offer Acceptance
Time, assuming satisfaction of the Minimum Condition, no vote of the Companys stockholders or any holder of Shares is necessary to authorize or adopt this Agreement or to consummate the Transactions. 3.21 Takeover Laws. Assuming the accuracy of the representations and warranties of Parent and Purchaser set forth in the second
sentence of Section 4.8, the Board of Directors has taken and will take all actions so that the restrictions applicable to business combinations contained in Section 203 of the DGCL and any other Takeover Law are, and
will be, inapplicable to the execution, delivery and performance of this Agreement and the Support Agreement and to the consummation of the Offer, the Merger and the other Transactions. 3.22 Non-Contravention; Consents. (a) Assuming compliance with the applicable provisions of the DGCL, the HSR Act, any applicable filing, notification or approval in any
foreign jurisdiction required by Antitrust Laws (if any), and the rules and regulations of the SEC and NASDAQ, the execution and delivery of this Agreement by the Company and the consummation of the Transactions will not: (i) cause a violation
of any of the provisions of the certificate of incorporation or bylaws (or other organizational documents) of any Acquired Corporation; (ii) cause a violation by any Acquired Corporation of any Legal Requirement or order applicable to an
Acquired Corporation, or to which an Acquired Corporation is subject; (iii) require any consent or notice under, conflict with, result in breach of, or constitute a default under (or an event that with notice or lapse of time or both would
become a default), or give rise to any right of purchase, termination, amendment, 37
cancellation, acceleration or other adverse change of any right or obligation or the loss of any benefit to which an Acquired Corporation is entitled under any provision of any Contract; or
(iv) result in an Encumbrance (other than a Permitted Encumbrance) on any of the property or assets of any Acquired Corporation, except in the case of clauses (iii) and (iv), as would not reasonably be expected, individually
or in the aggregate, to (i) have, a Material Adverse Effect or (ii) prevent, materially delay or materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the Offer and Merger in a timely
manner. (b) Except for the filing of the certificate of merger with the Secretary of State of the State of Delaware or as may be required
by the Exchange Act (including the filing with the SEC of the Schedule 14D-9 and such reports under the Exchange Act as may be required in connection with this Agreement and the Transactions), the DGCL, the
HSR Act and any applicable filing, notification or approval in any foreign jurisdiction required by Antitrust Laws and the applicable rules and regulations of the SEC and any national securities exchange, the Acquired Corporations are not required
to give notice to, make any filing with, or obtain any Consent from any Governmental Body at any time prior to the Closing in connection with the execution and delivery of this Agreement by the Company, or the consummation by the Company of the
Merger or the other Transactions, except those that the failure to make or obtain as would not, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect or (ii) prevent, materially delay or materially
impair the ability of the Company to perform its obligations under this Agreement or to consummate the Offer and Merger in a timely manner. 3.23 Opinion of Financial Advisor. The Board of Directors has received the written opinion of Centerview Partners LLC, financial
advisor to the Company, that, as of the date of such opinion, and based on and subject to the various assumptions made, procedures followed, matters considered and limitations on the review undertaken in preparing such opinion as set forth therein,
the Offer Price or Merger Consideration per Share to be paid to the holders of Shares (other than Excluded Shares, Dissenting Shares and Converted Shares and any Shares held by any controlled affiliate of the Company or Parent) in the Offer and the
Merger pursuant to this Agreement is fair, from a financial point of view, to such holders. The Company will make available to Parent solely for informational purposes and on a non-reliance basis, a signed
copy of such written opinion as soon as possible following the date of this Agreement. 3.24 Brokers and Other Advisors.
Except for Centerview Partners LLC, no broker, finder, investment banker, financial advisor or other Person is entitled to any brokerage, finders, financial advisors or other similar fee or commission, or the reimbursement of expenses in
connection therewith, in connection with the Transactions based upon arrangements made by or on behalf of the Company. The Company has delivered to Parent complete and correct copies of all agreements under which any such fee or commission or
expense reimbursement is payable and all indemnification and other agreements related to the engagement of the persons to whom any such fee is payable. Section 3.24 of the Company Disclosure Schedules sets forth a good
faith estimate as of the date hereof of all fees and expenses of any brokerage, finder, financial advisor, investment banker, legal counsel, accountant or other advisor or consultant payable by any Acquired Corporation in connection with this
Agreement or the Transactions. 38
3.25 Clinical Supply. The Acquired Corporations have good and marketable title
to their clinical supply of the Key Product free and clear of all Encumbrances (other than Permitted Encumbrances). Such clinical supply of the Key Product has been manufactured in accordance with the specifications therefor as set forth in the
applicable manufacturing documentation, the applicable Permit and other laws. The clinical supply of the Key Product has been properly stored in accordance with the relevant specifications. 3.26 Suppliers. Section 3.26 of the Company Disclosure Schedule sets forth a true and complete list of
(i) the ten (10) largest (measured by gross expenditures by the Acquired Corporations on a consolidated basis) suppliers of products and services for the Key Product and (ii) suppliers of any ingredients or materials used in
manufacturing the Key Product (collectively, the Material Suppliers and each, a Material Supplier) to the Acquired Corporations for the twelve (12) months ended December 31, 2021. No Material Supplier
has terminated or cancelled, or delivered written notification to any Acquired Corporation that it intends to terminate or cancel, or decreased materially or, to the knowledge of the Company, threatened to decrease or limit materially, its
relationship with any Acquired Corporation. No Acquired Corporation has been engaged in a material dispute with any Material Supplier that has not been resolved as of the date hereof. There has been no material change in the pricing or other
material terms of its business relationship with any Material Supplier that is adverse to the Acquired Corporations, except changes made in the ordinary course of business consistent with past pricing practices which changes in the aggregate would
not be material to the Acquired Corporations, taken as a whole. All amounts owing to such Material Supplier by any Acquired Corporation have been paid in all material respects in accordance with their respective terms. 3.27 Acknowledgement by Company and Company Subsidiary. Neither the Company nor the Company Subsidiary is relying and neither
the Company nor the Company Subsidiary has relied on any representations or warranties whatsoever regarding the Transactions or the subject matter of this Agreement, express or implied, except for the representations and warranties in this
Section 4. Such representations and warranties by Parent and Purchaser constitute the sole and exclusive representations and warranties of Parent and Purchaser in connection with the Transactions, and the Acquired
Corporations understand, acknowledge and agree that all other representations and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed by each of Parent and Purchaser. SECTION 4 REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER Parent and Purchaser represent and warrant to the Company as follows: 4.1 Due Organization. Each of Parent and Purchaser is a corporation or other Entity duly organized, validly existing and in good
standing (if recognized in the applicable jurisdiction of organization) under the laws of its jurisdiction of organization and has all necessary power and authority: (a) to conduct its business in the manner in which its business is currently
being conducted; and (b) to own and use its assets in the manner in which its assets are currently owned and used, except where the failure does not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect. 39
4.2 Purchaser. Purchaser was formed solely for the purpose of engaging in the
Transactions and activities incidental thereto and has not engaged, and prior to the Effective Time will not engage, in any business activities or conducted any operations other than in connection with the Transactions and those incident to
Purchasers formation. Either Parent or a wholly owned Subsidiary of Parent owns beneficially and of record all of the outstanding capital stock of Purchaser, free and clear of all Encumbrances, except for transfer restrictions of general
applicability as may be provided under the Securities Act or applicable securities laws. 4.3 Authority; Binding Nature of
Agreement. Each of Parent and Purchaser has the corporate power and authority, and has taken all corporate action necessary, to execute and deliver and perform its obligations under this Agreement and to consummate the Transactions, including
the Offer and the Merger. The board of directors of each of Parent and Purchaser have approved the execution, delivery and performance by Parent and Purchaser (as applicable) of this Agreement and the consummation of the Transactions, including the
Offer and the Merger. This Agreement has been duly executed and delivered by Parent and Purchaser, and assuming due authorization, execution and delivery by the Company, this Agreement constitutes the legal, valid and binding obligation of Parent
and Purchaser and is enforceable against Parent and Purchaser in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors rights, and by general equitable principles. 4.4 Non-Contravention; Consents. (a) Assuming compliance with the applicable provisions of the NYBCL,
the DGCL, the HSR Act and any applicable filing, notification or approval in any foreign jurisdiction required by Antitrust Laws (if any), the execution and delivery of this Agreement by Parent and Purchaser, and the consummation of the
Transactions, will not: (i) cause a violation of any of the provisions of the certificate of incorporation or bylaws (or other organizational documents) of Parent or Purchaser; (ii) cause a violation by Parent or Purchaser of any Legal
Requirement or order applicable to Parent or Purchaser, or to which Parent or Purchaser are subject; or (iii) require any consent or notice under, conflict with, result in breach of, or constitute a default under (or an event that with notice
or lapse of time or both would become a default), or give rise to any right of purchase, termination, amendment, cancellation, acceleration or other adverse change of any right or obligation or the loss of any benefit to which Parent or Purchaser is
entitled under any provision of any Contract, except in the case of clauses (ii) and (iii), as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (b) Except for the filing of the certificate of merger with the Secretary of State of the State of Delaware or as may be required by the
Exchange Act (including the filing with the SEC of the Offer Documents and the Merger Proxy Statement, if applicable), Takeover Laws, the DGCL, the HSR Act and any applicable filing, notification or approval in any foreign jurisdiction required by
Antitrust Laws (if any) and the applicable rules and regulations of the SEC and any national securities exchange, neither Parent nor Purchaser, nor any of Parents other Affiliates, is required to give notice to, make any filing with or obtain
any Consent from any Governmental Body at any time prior to the Closing in connection with the execution and delivery of this Agreement by Parent or Purchaser, or the consummation by Parent or Purchaser of the Offer, the Merger or the other
Transactions, except those that the failure to make or obtain as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. No vote of Parents or Purchasers stockholders is necessary to
approve this Agreement or any of the Transactions (except in the case of Purchaser as has previously been obtained). 40
4.5 Disclosure. None of the Offer Documents will contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the information with respect
to Parent or Purchaser supplied or to be supplied by or on behalf of Parent or Purchaser or any of their Subsidiaries, specifically for inclusion or incorporation by reference in the Schedule 14D-9 and the
Merger Proxy Statement (and any amendment or supplement thereto), if applicable, will, (a) at the time such document is filed with the SEC, (b) at any time such document is amended or supplemented or (c) at the time such document is
first published, sent or given to the Companys stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. For clarity, the representations and warranties in this Section 4.5 will not apply to statements or omissions included or incorporated by reference in the Offer
Documents, the Merger Proxy Statement (and any amendment or supplement thereto), if applicable, or the Schedule 14D-9 based upon information supplied to Parent or Purchaser by the Company or any of its
Representatives on behalf of the Company specifically for inclusion therein. 4.6 Absence of Litigation. As of the date of
this Agreement, there is no Legal Proceeding pending and served or, to the knowledge of Parent, pending and not served, against Parent or Purchaser, except as would not, and would not reasonably be expected, individually or in the aggregate, to have
a Parent Material Adverse Effect. As of the date of this Agreement, neither Parent nor Purchaser is subject to any continuing order of, consent decree, settlement agreement or similar written agreement with, or continuing investigation by, any
Governmental Body, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Body, except as would not, and would not reasonably be expected, individually or in the aggregate, to have a Parent Material Adverse
Effect. 4.7 Funds. Parent has and at all times required by this Agreement, including the Offer Acceptance Time (if
applicable) and Closing Date, Parent will have (and will make available to Purchaser in a timely manner) available funds in an amount sufficient to consummate the Transactions by payment in cash of the aggregate Offer Price, the aggregate Merger
Consideration and the aggregate amounts payable pursuant to the terms hereof to holders of Company Options and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses
required to be paid by Parent and Purchaser in connection with the Transactions. 4.8 Ownership of Shares. Except as
contemplated by this Agreement, neither Parent nor any of Parents controlled Affiliates directly or indirectly owns any Shares or any securities, contracts or obligations convertible into or exercisable or exchangeable for Shares. Neither
Parent nor Purchaser is, nor for the past three (3) years has been, an interested stockholder of the Company under Section 203(c) of the DGCL. 41
4.9 Acknowledgement by Parent and Purchaser. (a) Neither Parent nor Purchaser is relying and neither Parent nor Purchaser has relied on any representations or warranties whatsoever
regarding the Transactions or the subject matter of this Agreement, express or implied, except for the representations and warranties in Section 3, including the Company Disclosure Schedule. Such representations and
warranties by the Acquired Corporations constitute the sole and exclusive representations and warranties of the Acquired Corporations in connection with the Transactions, and each of Parent and Purchaser understands, acknowledges and agrees that all
other representations and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed by the Acquired Corporations. (b) In connection with the due diligence investigation of the Acquired Corporations by Parent and Purchaser and their respective Affiliates,
stockholders or Representatives, Parent and Purchaser and their respective Affiliates, stockholders and Representatives have received and may continue to receive after the date hereof from the Company, the other Acquired Corporations and their
respective Affiliates, stockholders and Representatives certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, regarding the Acquired Corporations and their respective
businesses and operations. Parent and Purchaser hereby acknowledge that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans, and that
Parent and Purchaser will have no claim against the Acquired Corporations, or any of their respective Affiliates, stockholders or Representatives, or any other Person with respect thereto unless any such information is expressly included in a
representation or warranty contained in this Agreement. Accordingly, Parent and Purchaser hereby acknowledge and agree that neither the Acquired Corporations nor any of their respective Affiliates, stockholders or Representatives, nor any other
Person, has made or is making any express or implied representation or warranty with respect to such estimates, projections, forecasts, forward-looking statements or business plans unless any such information is expressly included in a
representation or warranty contained in this Agreement. 4.10 Brokers and Other Advisors. Except for Persons, if any, whose
fees and expenses shall be paid by Parent or Purchaser, no broker, finder, investment banker, financial advisor or other Person is entitled to any brokerage, finders, financial advisors or other similar fee or commission, or the
reimbursement of expenses in connection therewith, in connection with the Transactions based upon arrangements made by or on behalf of Parent, Purchaser, or any of their respective Subsidiaries. 4.11 Competing Businesses. Neither Parent nor Purchaser nor any of Parents other Subsidiaries currently is
(1) clinically developing TLR9 products, or (2) conducting studies with a TLR9 product to enable an IND application within the next twelve (12) months. 42
SECTION 5 CERTAIN COVENANTS OF THE COMPANY 5.1 Access and Investigation. During the period from the date of this Agreement until the earlier of the Effective Time and the
termination of this Agreement pursuant to Section 8 (the Pre-Closing Period), upon reasonable advance notice to the Company, the Acquired Corporations shall, and
shall cause the respective Representatives of the Acquired Corporations to provide Parent and Parents Representatives with reasonable access during normal business hours of the Company to the Companys designated Representatives and to
properties, assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parents Representatives with all reasonably requested information regarding the business of
the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at
Parents expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations.
Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent to the extent (i) such disclosure would, in the Companys reasonable discretion (x) jeopardize any attorney-client or other legal privilege
(so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (y) contravene any applicable Legal
Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent permitted by Legal Requirements) or (z) contravene any Contract to which an Acquired
Corporation is a party (so long as the Acquired Corporations have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent permitted by such Contract) or (ii) such information is included in the
minutes of the meetings of the Board of Directors or its committees and relates to the discussion by the Board of Directors or any applicable committee of the Transactions or any similar transaction between the Company and any other Person
(including any presentations or other materials prepared by or for the Board of Directors, whether in connection with a specific meeting, or otherwise relating to such subject matter). Notwithstanding anything to the contrary herein, the Acquired
Corporations may satisfy their obligations set forth above to provide access to personnel, assets, books, records, work papers and any other documents and information by electronic means if physical access would not be permitted under the applicable
Legal Requirements (including any COVID-19 Measures). With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall instruct
Parents Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement dated March 22, 2022, between the Company and Parent (the Confidentiality Agreement). 5.2 Operation of the Acquired Corporations Business . During the Pre-Closing Period: (a) except (w) for commercially reasonable actions taken or omitted to be taken in response to the actual or anticipated effects of COVID-19 or any COVID-19 Measures (provided that the Company shall, to the extent permitted by applicable Legal Requirements, reasonably consult with Parent with respect to
any such actions taken or omitted to be taken as a 43
result of the COVID-19 Measures prior to the taking of any such action), (x) as expressly required under this Agreement or as required by applicable Legal
Requirements, (y) with the written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), or (z) as set forth in Section 5.2(a)(i) of the Company Disclosure Schedule, the
Company shall, and shall cause each Acquired Corporation to, use commercially reasonable efforts to (i) conduct its business in the ordinary course consistent with past practice in all material respects, (ii) preserve intact its assets
(including technology) (other than assets of de minimis value), business organizations and relationships with third parties and keep available the services of its present executive officers and the employees as set forth in
Section 5.2(a)(ii) of the Company Disclosure Schedule and (iii) maintain satisfactory business relationships with Governmental Bodies, customers, suppliers, licensors, licensees, distributors, collaboration partners
and other business partners having material business dealings with the Acquired Corporations; and (b) except (x) as expressly
required under this Agreement or as required by applicable Legal Requirements, (y) with the written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), or (z) as set forth in the corresponding
subsection of Section 5.2(b) of the Company Disclosure Schedule, the Acquired Corporations shall not: (i) (1)
establish a record date for, declare, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock (including the Shares), or (2) repurchase, redeem or otherwise reacquire any of the Shares, or any
rights, warrants or options to acquire any of the Shares, other than: (A) repurchases of Shares outstanding as of the date hereof pursuant to the Companys right (under written commitments in effect as of the date hereof) to purchase
Shares held by a Company Associate only upon termination of such Persons employment or engagement by the Company; (B) in connection with withholding to satisfy the exercise price and/or Tax obligations with respect to Company Options
pursuant to the terms thereof (as in effect as of the date hereof); or (C) between the Company and the Company Subsidiary; (ii)
split, combine, subdivide or reclassify any Shares or other equity interests; (iii) sell, issue, grant, deliver, pledge, transfer,
encumber or authorize the sale, issuance, grant, delivery, pledge, transfer or encumbrance of (A) any capital stock, equity interest or other security, (B) any option, call, warrant, restricted securities or right to acquire any capital
stock, equity interest or other security, or (C) any instrument convertible into or exchangeable for any capital stock, equity interest or other security (except that the Company may issue Shares as required to be issued upon the exercise of
Company Options outstanding as of the date of this Agreement pursuant to the terms thereof (as in effect as of the date hereof) or issuable to participants in the Company ESPP in accordance with the terms thereof); (iv) except as required under any Employee Plan as in effect on the date of this Agreement, (A) establish, adopt, enter into, terminate
or amend any Employee Plan (or any plan, program, arrangement, practice or agreement that would be an Employee Plan if it were in existence on the date hereof) or any collective bargaining agreement or other labor agreement, or amend or waive any of
its rights under, or accelerate the payment or vesting of compensation or benefits under, any provision of any of the Employee Plans (or any plan, program, arrangement or 44
agreement that would be an Employee Plan if it were in existence on the date hereof); (B) grant or agree to grant any current or former employee, director or other service provider any
increase in compensation, bonuses or other benefits; (C) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits; (D) grant or pay any awards
or accelerate the vesting of or lapsing of restrictions with respect to any compensation or benefits; (E) hire or promote any employee or other service provider of the Company or its Subsidiaries (or with respect to hiring, would become an
employee or other service provider of the Company or its Subsidiaries) who has (or with respect to hiring or promotion, would have) a target annual compensation opportunity (base salary, target annual bonus and target long-term incentive
opportunity) of $200,000 or more or who is or would be the Chief Executive Officer of the Company or a direct report thereto; or (F) terminate other than for cause the employment of any employee or other service provider of the Company or its
Subsidiaries who has a target annual compensation opportunity (base salary, target annual bonus and target long-term incentive opportunity) of $200,000 or more; (v) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws or other charter or organizational documents;
(vi) form any Subsidiary, acquire any equity interest in any other Entity or enter into any joint venture, partnership or similar
arrangement; (vii) except as otherwise set forth in the Companys operating budget set forth on
Section 5.2(b)(vii) of the Company Disclosure Schedule, make or authorize any capital expenditure (except that the Acquired Corporations may make capital expenditures that do not exceed $250,000 individually or $750,000 in
the aggregate); (viii) acquire, lease, license, sublicense, pledge, sell or otherwise dispose of, divest or spin-off, abandon, waive, relinquish or permit to lapse (other than any Patent expiring at the end of its statutory term and not capable of being extended), transfer or assign any material right or other material
asset or property (except (A) in the ordinary course of business consistent with past practice (including entering into clinical trial agreements and material transfer agreements in the ordinary course of business consistent with past practice)
in amounts not exceeding $500,000 individually or in the aggregate, (B) pursuant to dispositions of obsolete, surplus or worn out assets that are no longer useful in the conduct of the business of the Acquired Corporations in amounts not
exceeding $500,000 individually or in the aggregate, (C) capital expenditures permitted by clause (vii) of this Section 5.2(b) or (D) transactions between the Company and the Company Subsidiary); (ix) lend money or make capital contributions or advances to or make investments in, any Person, or incur or guarantee any Indebtedness
(except for advances to employees and consultants for travel and other business related expenses in the ordinary course of business consistent with past practice and in compliance with the Companys policies related thereto), other than between
the Company and the Company Subsidiary; 45
(x) (A) amend, modify, waive or release any material rights under or terminate (other than non-renewals or auto-renewals occurring in the ordinary course of business consistent with past practice or termination at the end of the Contract term in accordance with the terms of the Contract) any Material
Contract or any Contract that would constitute a Material Contract if it were in effect on the date of this Agreement or (B) enter into any Contract that would constitute a Material Contract if it were if it were in effect on the date of this
Agreement; (xi) (A) adopt or change any material method of Tax accounting or change any Tax accounting period; (B) make (other
than consistent with past practice), revoke or change any material Tax election; (C) amend any material Tax Return; (D) enter into any closing agreement (within the meaning of Section 7121 of the Code (or any similar or
analogous provision of state, local, or non-U.S. law)); (E) request any material ruling from any Governmental Body with respect to Taxes; (F) settle or compromise any material liability for Taxes or any
claim, audit or other proceeding relating to a material amount of Taxes or surrender any right to claim a material refund of Taxes; or (G) agree to a waiver or extension of the statute of limitations with respect to a material amount of Taxes;
(xii) settle, release, waive or compromise any Legal Proceeding or other claim (or threatened Legal Proceeding or other claim), other
than any settlement, release, waiver or compromise that (A) results solely in monetary obligations involving only the payment of monies by the Acquired Corporations of not more than $500,000 in the aggregate (excluding monetary obligations that
are funded by an indemnity obligation to, or an insurance policy of, any Acquired Corporations), (B) do not involve the admission of wrongdoing by the Company or any of its Subsidiaries and do not involve any injunctive or equitable or other
nonmonetary relief (other than immaterial and non-monetary relief incidental thereto) against any Acquired Corporation or any license, cross license or similar arrangement with respect to any Company IP or
products of any Acquired Corporation and (C) provide for a complete release of the claims in dispute giving rise to such settlement, release, waiver or compromise; provided that the settlement, release, waiver or compromise of any Legal
Proceeding or claim brought by the stockholders of the Company against the Company and/or its directors or officers relating to the Transactions or a breach of this Agreement or any other agreements contemplated hereby shall be subject to
Section 2.7 or Section 6.6, as applicable; (xiii) adopt or implement any stockholder
rights plan or similar arrangement; (xiv) make any material change in financial accounting policies, practices, principles, methods or
procedures, other than as required by GAAP or Regulation S-X promulgated under the Exchange Act or other applicable rules and regulations of the SEC or applicable Legal Requirements; (xv) commence any clinical trial in respect of the Key Product; (xvi) terminate any clinical trials in respect of the Key Product that are ongoing as of the date hereof, other than pursuant to the terms
thereof; (xvii) qualify any new site for manufacturing of the Key Product; (xviii) fail to maintain in full force and effect the existing insurance policies of the Acquired Corporations or to renew or replace such
insurance policies with comparable insurance policies; 46
(xix) adopt a plan or agreement of complete or partial liquidation or dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of any of the Acquired Corporations; (xx) pay or incur any
obligation in respect of the matters described on Section 5.2(b)(xx) of the Company Disclosure Schedules; (xxi)
fail to preserve and maintain any material Company IP except non-exclusive licenses and sublicenses of Company IP to customers or suppliers of the Acquired Corporations; (xxii) disclose to any third party other than pursuant to written confidentiality obligations, or otherwise fail to preserve and maintain any
material Know-How; (xxiii) fail to take all commercially reasonable actions necessary to enter
national phase applications in the United States for CHCK-002/001WO on or before April 23, 2022 and in the EP for CHCK-002/001WO on or before May 23, 2022; or
(xxiv) authorize any of, or agree or commit to take, any of the actions described in the foregoing clauses (i) through
(xix) of this Section 5.2(b). Notwithstanding the foregoing, nothing contained herein shall give to Parent or Purchaser, directly or indirectly, rights to control or direct the operations of the Acquired Corporations
prior to the Offer Acceptance Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its and its, if applicable, Subsidiaries
respective operations. 5.3 No Solicitation. (a) For the purposes of this Agreement, Acceptable Confidentiality Agreement means any customary confidentiality agreement
that (i) contains provisions that are not less favorable in any material respect to the Company than those contained in the Confidentiality Agreement and (ii) does not prohibit the Company from providing any information to Parent in
accordance with, and otherwise complying with, this Agreement. (b) The Acquired Corporations shall, and cause their Representatives to,
immediately cease any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof. Except as otherwise expressly permitted by this
Section 5.3(b), during the Pre-Closing Period the Acquired Corporations shall not, and shall cause their Representatives not to, directly or indirectly, (i) continue any
solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof; (ii) (A) solicit, initiate or facilitate or knowingly encourage (including by
way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) engage
in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with, or for the purpose of soliciting or knowingly
encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, (C) enter into any letter of intent, acquisition
47
agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal or
(D) take any action to exempt any Person (other than Parent and its Subsidiaries) from the restrictions on business combinations or any similar provision contained in applicable Takeover Laws or the Companys organizational and
other governing documents; (iii) waive or release any Person from, forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any other Contract, unless, solely in the case of this clause (iii), (I)
the Board of Directors determines in good faith, after consultation with the Companys outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Companys stockholders
under applicable Legal Requirements, in which event the Acquired Corporations may take the actions described in this clause (iii) solely to the extent necessary to permit a third party to make, on a confidential basis to the Board of
Directors, an Acquisition Proposal, conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Acquisition Proposal) in accordance with, and otherwise
complying with, this Section 5.3 and (II) the Company complies with the obligations set forth in Section 5.3(d) or (iv) resolve or agree to do any of the foregoing. As promptly as
reasonably practicable (and in any event within two (2) business days) following the date hereof, the Company shall request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all non-public information previously furnished to any Person (other than Parent) that has, within the one (1)-year period prior to the date of this Agreement, made or indicated an intention to make an Acquisition
Proposal and the Company shall, and shall, within one (1) business day following the date hereof, cause the other Acquired Corporations to, terminate access by any third Person who has made or would reasonably be expected to make an Acquisition
Proposal (other than Parent and its Representatives) to any data room (virtual or actual) containing any confidential information of any Acquired Corporation. (c) If at any time on or after the date of this Agreement and prior to the Offer Acceptance Time or the receipt of the Company Stockholder
Approval (whichever is first to occur, the Cut-off Time) any Acquired Corporation or any of their Representatives receives an unsolicited bona fide written Acquisition Proposal from
any Person or group of Persons, which Acquisition Proposal was made or renewed on or after the date of this Agreement and did not result from or arise out of a breach of this Section 5.3 or
Section 6.1, if the Board of Directors determines in good faith, (i) after consultation with the Companys financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or would
reasonably be expected to lead to a Superior Offer, and (ii) after consultation with the Companys outside legal counsel, that the failure to take such action described in clauses (A) and (B) of this
Section 5.3(c) would be inconsistent with the fiduciary duties of the Board of Directors to the Companys stockholders under applicable Legal Requirements, then the Company and its Representatives may (A) furnish,
pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Acquired Corporations to the Person or group of Persons who has made such Acquisition
Proposal and their Representatives; provided that the Company shall substantially concurrently provide to Parent any information concerning the Acquired Corporations that is provided to any Person to the extent access to such information was
not previously provided to Parent or its Representatives and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal. The Company shall provide Parent with an
accurate and complete copy of any Acceptable Confidentiality Agreement entered into as contemplated by this Section 5.3 promptly (and in any event within one (1) day) of the execution thereof. 48
(d) During the Pre-Closing Period, the Company shall
(i) promptly (and in any event within 24 hours) notify Parent if any requests, inquiries, proposals or offers with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, or any initial request for non-public information concerning the Company from any Person or group who has made or could reasonably be expected to make an Acquisition Proposal, in each case, are received by any Acquired Corporation or any
Representative thereof and provide to Parent unredacted copies of any written requests, inquiries, proposals or offers or other materials, including proposed agreements and summaries of the terms and conditions of any oral requests, inquiries,
proposals or offers (including any proposed term sheet, letter of intent, acquisition agreement or similar agreement with respect thereto), the name of such Person or group and a summary of any material unwritten terms and conditions thereof, and
the nature of any information requested, (ii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal or any requests, inquiries, proposals or offers (including by furnishing
copies of any further amendments thereto) on a prompt basis (and in any event within 24 hours of such material development, discussion or negotiation), and (iii) upon the request of Parent, reasonably inform Parent of the status of such
Acquisition Proposal. (e) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company
or the Board of Directors from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of
Regulation M-A promulgated under the Exchange Act, including any stop, look and listen communication pursuant to Rule 14d-9(f) promulgated under the Exchange
Act, or (ii) making any disclosure to the stockholders of the Company if the Board of Directors determines, in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary
duties under applicable Legal Requirements; provided, that this Section 5.3(e) shall not be deemed to permit the Board of Directors to make a Company Adverse Recommendation Change except to the extent permitted by
Section 6.1(b). (f) The Company agrees that in the event any Acquired Corporation or any Representative of an
Acquired Corporation takes any action which, if taken by the Company, would constitute a breach of this Section 5.3, the Company shall be deemed to be in breach of this Section 5.3. 5.4 Preparation of Proxy Statement; Stockholder Meeting. (a) Within ten (10) business days following receipt by Parent of a request for additional information and documentary materials pursuant
to 15 USC §18a(e)(1)(A), Parent may, after consulting with and considering in good faith the views of the Company, by providing written notice to the Company (a Meeting Election), require the Company to, as promptly as
reasonably practicable (and in any event within fifteen (15) days) after a Meeting Election, prepare and file with the SEC a proxy statement in preliminary form related to the Company Stockholder Meeting (together with any amendments thereof or
supplements thereto, the Merger Proxy Statement); provided that if the waiting period (and any extension thereof) applicable to the Offer or the Merger under the HSR Act shall have expired or been terminated,
(i) Parent may not deliver a Meeting 49
Election and (ii) if a Meeting Election has already been delivered but the Company has not yet mailed the Merger Proxy Statement, the Meeting Election and any Offer Termination shall
automatically be withdrawn and, if the Offer has been terminated or expired without any Shares having been accepted for payment, Purchaser shall recommence the Offer. The Company shall give Parent and its counsel reasonable opportunity to review and
comment on the initial preliminary Merger Proxy Statement and all subsequent forms or versions of or amendments or supplements to the Merger Proxy Statement prior to the filing thereof with the SEC or dissemination to the holders of Shares and the
Company shall give reasonable and good faith consideration to any timely comments thereon made by the other Party or its counsel. Parent and Purchaser shall promptly supply to the Company in writing, for inclusion in the Merger Proxy Statement, all
information concerning Parent and Purchaser and their Affiliates required under applicable Legal Requirements to be included in the Merger Proxy Statement as is reasonably requested by the Company. Parent, Purchaser and the Company shall cooperate
in good faith to determine the information regarding each of them that is necessary to include in the Merger Proxy Statement in order to satisfy applicable Legal Requirements. The Company agrees that the Merger Proxy Statement filed by the Company
with the SEC (x) shall comply in all material respects with the Exchange Act and other applicable Legal Requirements and (y) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant is made by the Company with respect to information supplied by
or on behalf of Parent or Purchaser for inclusion or incorporation by reference in the Merger Proxy Statement. Each of Parent, Purchaser and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any
information provided by it for use in the Merger Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Merger
Proxy Statement as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Legal Requirements. The Company shall (A) promptly notify Parent of the receipt of,
and promptly provide Parent copies of, all comments from, and all correspondence with, the SEC or its staff with respect to the Merger Proxy Statement and shall promptly notify Parent of any request by the SEC or its staff for any amendment or
supplement thereto or for additional information, (B) provide Parent and its counsel with a reasonable opportunity to review and comment on any proposed correspondence between it and/or any of its Representatives on the one hand and the SEC or
its staff on the other hand with respect to the Merger Proxy Statement and shall give reasonable and good faith consideration to any timely comments thereon made by Parent or its counsel and (C) promptly provide Parent with final copies of any
correspondence sent by it and/or any of its Representatives to the SEC or its staff with respect to the Merger Proxy Statement, and of any amendments or supplements to the Merger Proxy Statement. The Merger Proxy Statement shall include the Company
Board Recommendation, unless the Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.1. The Merger Proxy Statement shall include the notice of the Company Stockholder Meeting and
the notice and other information required by Section 262(d) of the DGCL. 50
(b) Subject to applicable Legal Requirements, if Parent delivers a Meeting Election as
provided in clause (a), (i) the Company shall, within four (4) business days of receipt of such Meeting Election, establish a record date consented to by Parent (such consent not to be unreasonably withheld, conditioned or delayed), which date
shall be selected so as to permit the Merger Proxy Statement to be mailed, and a meeting of the Companys stockholders to be held, as soon as reasonably practicable after the filing of the Merger Proxy Statement, for the purpose of voting upon
the adoption of this Agreement (together with any adjournments or postponements thereof, the Company Stockholder Meeting) and (ii) as soon as reasonably practicable, mail to the holders of Shares as of the record date
established for the Company Stockholders Meeting the definitive Merger Proxy Statement. The Company shall duly call, convene and hold the Company Stockholder Meeting as soon as reasonably practicable (but in any event no more than twenty-five
(25) business days) following the date the Merger Proxy Statement is mailed to the Companys stockholders and any adjournments or postponements of such meetings shall require the prior written consent of Parent (not to be unreasonably
withheld, conditioned or delayed) other than to the extent necessary to allow reasonable additional time for the filing and/or mailing, and review by the Companys stockholders prior to the date of the Company Stockholder Meeting, of any
supplemental or amended disclosure that the Board of Directors determines in good faith is required by applicable Legal Requirements or the rules and regulations of NASDAQ. Notwithstanding the foregoing, the Company may, and Parent may require the
Company to, adjourn or postpone the Company Stockholder Meeting two (2) times (for a period of not more than 10 business days each but not past three (3) business days prior to the End Date), unless prior to such adjournment or
postponement the Company shall have received an aggregate number of proxies voting for the adoption of this Agreement, which have not been withdrawn, such that the condition in Section 7.1(a) would be satisfied at such
meeting if it were to be held without such postponement or adjournment. Once the Company has established a record date for the Company Stockholder Meeting, the Company shall not change such record date or establish a different record date for the
Company Stockholder Meeting without the prior written consent of Parent, unless required to do so by applicable Legal Requirements. Unless the Board of Directors shall have made a Company Adverse Recommendation Change in compliance with
Section 6.1, the Company shall use reasonable best efforts to obtain the Company Stockholder Approval, including to solicit proxies in favor of the adoption of this Agreement. Unless this Agreement is validly terminated in
accordance with Section 8.1, the Company shall submit this Agreement to its stockholders at the Company Stockholder Meeting even if the Board of Directors shall have made a Company Adverse Recommendation Change or proposed
or announced any intention to do so. The Company shall, upon the reasonable request of Parent, advise Parent at least on a daily basis on each of the last seven (7) business days prior to the date of the Company Stockholder Meeting as to the
aggregate tally of proxies received by the Company with respect to the Company Stockholder Approval. Without the prior written consent of Parent, the adoption of this Agreement and customary annual meeting matters (if applicable) shall be the only
matters (other than related procedural matters) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholder Meeting. The foregoing notwithstanding, the Company shall not set a record date, mail a proxy
statement with respect to, or convene the Company Stockholder Meeting unless Parent shall have made a Meeting Election. (c) Unless there
has been a Company Adverse Recommendation Change, Parent shall promptly pay or reimburse the Company for the reasonable and documented costs and expenses of a proxy solicitation firm in connection with the Company Stockholder Meeting and all SEC
filing fees related to the Merger Proxy Statement. 51
SECTION 6 ADDITIONAL COVENANTS OF THE PARTIES 6.1 Company Board Recommendation. (a) Unless the Board of Directors has made a Company Adverse Recommendation Change in accordance with
Section 6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, unless the
Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.1(b), neither the Board of Directors nor any committee thereof shall (i)(A) withdraw or withhold (or modify or qualify in a
manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) fail to include the Company Board Recommendation in the
Schedule 14D-9 or the Merger Proxy Statement or (C) adopt, approve, recommend or declare advisable, or resolve, agree or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition
Proposal (any action described in this clause (i) being referred to as a Company Adverse Recommendation Change); or (ii) adopt, approve, recommend or declare advisable, or propose to approve, recommend or declare
advisable, or allow the Company to execute or enter into any Contract with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal, or that requires, or is reasonably expected to cause, the Company to abandon,
terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement). (b) Notwithstanding Section 6.1(a), at any time prior to the Offer Acceptance Time or, if Parent has made a Meeting
Election, the Cut-off Time: (i) if any Acquired Corporation has received a bona fide
written Acquisition Proposal that was made or renewed on or after the date of this Agreement from any Person that has not been withdrawn and after consultation with the Companys financial advisors and outside legal counsel, the Board of
Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Recommendation Change, or (y) provided that no Acquired Corporation has breached
Section 5.3 or Section 6.1, the Company may terminate this Agreement pursuant to Section 8.1(f) to enter into a Specified Agreement with respect to such Superior Offer, in
each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Companys outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of
Directors to the Companys stockholders under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Recommendation Change or terminating this
Agreement pursuant to Section 8.1(f) at least four (4) business days prior to making any such Company Adverse Recommendation Change or termination (a Determination Notice) and, to the extent desired
by Parent, during such four (4)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease
to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(d),
52
(2) the Company shall have given Parent the four (4)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such
Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to any written proposals and any revised terms made by Parent in writing during such period, if any, after consultation with the Companys
financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and, after consultation with the Companys outside legal counsel, that the failure to
make the Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(f) would be inconsistent with the fiduciary duties of the Board of Directors to the Companys stockholders under
applicable Legal Requirements. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material
amendment or modification to any Acquisition Proposal and require a new Determination Notice, except that for purposes of the foregoing the references to four (4) business days shall be deemed to be two (2) business days; and (ii) other than in connection with an Acquisition Proposal, the Board of Directors may make a Company Adverse Recommendation Change in
response to an Intervening Event if and only if: (A) the Board of Directors determines in good faith, after consultation with the Companys outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of
the Board of Directors to the Companys stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four (4) business days prior to making any such Company Adverse
Recommendation Change and, to the extent desired by Parent, during such four (4)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by
Parent so that a Company Adverse Recommendation Change would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances underlying the Intervening Event that render a Company Adverse
Recommendation Change necessary, (2) the Company shall have given Parent the four (4)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse
Recommendation Change would no longer be necessary, and (3) after giving effect to the written proposals made by Parent during such period, if any, after consultation with outside legal counsel, the Board of Directors shall have determined, in
good faith, that the failure to make the Company Adverse Recommendation Change in response to such Intervening Event would be inconsistent with the fiduciary duties of the Board of Directors to the Companys stockholders under applicable Legal
Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Intervening Event and require a new Determination Notice, except that for
purposes of such subsequent Determination Notice, the references to four (4) business days shall be deemed to be two (2) business days. 6.2 Antitrust Filings and Efforts. (a) Subject to the terms and conditions set forth in this Agreement, the Parties agree to use their reasonable best efforts to cooperate with
one another and promptly take any and all actions, and to promptly do all steps necessary or advisable to avoid or eliminate each and every impediment under the Antitrust Laws, that may be asserted by any Governmental Body or any
53
other party, so as to enable the Closing to occur as promptly as reasonably practicable, but in no case later than the End Date, including but not limited to providing as promptly as practicable
all information required or requested by any Governmental Body in its evaluation of the Transactions under the HSR Act or other applicable Antitrust Laws. Notwithstanding anything to the contrary in this Agreement, Parent and its Affiliates shall
not be required to, and without the prior written consent of Parent the Acquired Corporations shall not, propose, negotiate, commit to, effect or agree to, by consent decree, hold separate order or otherwise the sale, license, divestiture, disposal
or holding separate of, or any other action that would limit Parents freedom of action with respect to, or its ability to retain or hold, before or after the Offer Acceptance Time or the Effective Time, any entities, interests, assets,
Intellectual Property Rights or businesses of Parent, the Acquired Corporations, or any of their respective Affiliates. (b) In
furtherance of the foregoing, each of the Parties shall (and shall cause their respective Affiliates, if applicable, to): (i) promptly, but in no event later than five (5) business days after the date hereof (unless Parent determines in good
faith that postponing such filings to a later date is advantageous for purposes of satisfying the conditions to the Offer but in no event later than twenty (20) business days after the date hereof), make an appropriate filing of all
notification and report forms as required by the HSR Act with respect to the Transactions and (ii) cooperate with each other in determining whether, and promptly preparing and making any other filings, notifications or other consents that are
required to be made with, or obtained from, any other Governmental Bodies in connection with the Transactions. (c) Without limiting the
generality of anything contained in this Section 6.2, during the Pre-Closing Period, each Party shall (i) give the other Parties prompt notice of the making or commencement of
any request, inquiry, investigation, action or Legal Proceeding brought by a Governmental Body or brought by a third party before any Governmental Body, in each case, with respect to the Transactions under the Antitrust Laws, (ii) keep the
other Parties reasonably informed as to the status of any such request, inquiry, investigation, action or Legal Proceeding, (iii) promptly inform the other Parties of any communication to or from the FTC, DOJ or any other Governmental Body in
connection with any such request, inquiry, investigation, action or Legal Proceeding, (iv) promptly furnish to the other Party, subject to an appropriate confidentiality agreement to limit disclosure to counsel and outside consultants, with
copies of documents provided to or received from any Governmental Body in connection with any such request, inquiry, investigation, action or Legal Proceeding (other than documents that contain valuation information (which can be redacted)), (v)
subject to an appropriate confidentiality agreement to limit disclosure to counsel and outside consultants, and to the extent reasonably practicable, consult and cooperate with the other Parties and consider in good faith the views of the other
Parties in connection with any communication, written or oral, to be made or submitted in connection with any such request, inquiry, investigation, action or Legal Proceeding, and (vi) except as may be prohibited by any Governmental Body or by
any Legal Requirement, permit the other Party or its authorized Representatives to be present at each meeting or phone or video conference relating to such request, inquiry, investigation, action or Legal Proceeding. (d) Without limiting in any respect Parents obligations under this Section 6.2, and subject to Parent
consulting with and considering in good faith the views and comments of the Company, Parent shall have the right to (i) direct, devise and implement the strategy for obtaining any necessary approval of, for responding to any request from,
inquiry or investigation by 54
(including directing the timing, nature and substance of all such responses), and shall have the right to lead all meetings and communications (including any negotiations) with, any Governmental
Body that has authority to enforce any Antitrust Law and (ii) control the defense and settlement of any litigation, action, suit, investigation or proceeding brought by or before any Governmental Body that has authority to enforce any Antitrust
Law. Notwithstanding the foregoing or anything to the contrary in this Agreement, neither Parent nor any of its Affiliates shall be required to commence or defend any action or Legal Proceeding against any Governmental Body in connection with the
transactions contemplated hereby. (e) Purchaser shall pay all filing fees under the HSR Act and for any filings required under any other
applicable Antitrust Laws. 6.3 Employee Benefits. (a) For a period of one year following the Effective Time (the Continuation Period), Parent shall provide, or cause to be
provided, to each employee of the Company or its Subsidiaries who is employed by the Company or its Subsidiaries as of immediately prior to the Effective Time and who continues to be actively employed by the Surviving Corporation (or any Affiliate
thereof) during such one-year period (each, a Continuing Employee) with (i) a base salary or wage rate that is no less than that provided to such Continuing Employee by any Acquired
Corporation immediately prior to the Effective Time, (ii) target cash incentive compensation opportunities that are no less favorable than either (x) those provided to such Continuing Employee by any Acquired Corporation immediately prior
to the Effective Time or (y) those provided by Parent or its Affiliates to similarly situated employees, and (iii) employee benefits (excluding equity incentive compensation) that in the aggregate are no less favorable than either
(x) those provided to such Continuing Employee by any Acquired Corporation immediately prior to the Effective Time or (y) those provided by Parent or its Affiliates to similarly situated employees. In addition, Parent shall assume and
honor, and shall cause the Surviving Corporation and their respective Affiliates to assume and honor, the Employee Plans set forth in Section 6.3(a) of the Company Disclosure Schedule that provide for severance payments and
benefits to any Continuing Employee whose employment ends for a severance-qualifying reason pursuant to such Employee Plan or as otherwise set forth in Section 6.3 of the Company Disclosure Schedule as well as such other
benefits set forth in Section 6.3 of the Company Disclosure Schedule. (b) To the extent that service is
relevant for eligibility or vesting under any benefit plan of Parent and/or the Surviving Corporation, then Parent shall ensure that such benefit plan shall, for purposes of eligibility and vesting, but not for purposes of benefit accrual (except
such accrual as provided in Section 6.3(b) of the Company Disclosure Schedule), credit Continuing Employees for service prior to the Effective Time with the Company and its Affiliates or their respective predecessors to the
same extent that such service was recognized prior to the Effective Time under the corresponding benefit plan of the Company; provided, however, that such service shall not be recognized to the extent that such recognition would result
in any duplication of benefits, and Parent and its Affiliates shall not be required to provide credit for any purpose under any cash or equity incentive plan, defined benefit pension plan, postretirement welfare plan or any plan under which
similarly situated employees of Parent and its Affiliates do not receive credit for prior service or that is grandfathered or frozen. 55
(c) Following the Effective Time Parent or an Affiliate of Parent shall use commercially
reasonable efforts to: (i) waive any preexisting condition limitations otherwise applicable to Continuing Employees and their eligible dependents under any plan of Parent or an Affiliate that provides health benefits in which Continuing
Employees are eligible to participate following the Effective Time, other than any limitations that were in effect with respect to such employees immediately prior to the Effective Time under the corresponding Employee Plan; (ii) honor any
deductible, co-payment and out-of-pocket maximums incurred by the Continuing Employees and their eligible dependents under the
health plans in which they participated immediately prior to transitioning into a plan of Parent or an Affiliate during the portion of the calendar year prior to such transition in satisfying any deductibles,
co-payments or out-of-pocket maximums under health plans of Parent or an Affiliate, in each case to the extent recognized for
such purpose under an analogous Employee Plan prior to the Effective Time; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Continuing Employee and his or her eligible
dependents on or after the Effective Time, in each case, to the extent such Continuing Employee or eligible dependent had satisfied any similar limitation or requirement under an analogous Employee Plan prior to the Effective Time. (d) Unless otherwise requested by Parent in writing delivered to the Company not less than five (5) business days before the Closing
Date, the Board of Directors (or the appropriate committee thereof) shall adopt resolutions and take such corporate action as is necessary or appropriate to terminate the Company 401(k) Savings Plan (the Company 401(k) Plan),
effective as of the day prior to the Closing Date. The form and substance of such resolutions and any other actions taken in connection with the foregoing termination shall be subject to the review and approval of Parent. Following the Effective
Time and (if Parent determines in its sole discretion that a determination letter is appropriate) as soon as practicable following receipt of a favorable determination letter from the IRS on the termination of the Company 401(k) Plan, the assets
thereof shall be distributed to the participants, and Parent shall, to the extent permitted by Parents 401(k) plan (the Parent 401(k) Plan), permit the Continuing Employees who are actively employed as of such time to make
rollover contributions of eligible rollover distributions within the meaning of Section 401(a)(31) of the Code (excluding loans), in the form of cash, in an amount equal to the full account balance (excluding loans) distributed to
such Continuing Employee from the Company 401(k) Plan to the Parent 401(k) Plan. (e) Between the date hereof and the Effective Time, any
written or broad-based notices or communication materials (including website postings) from the Acquired Corporations to their employees with respect to the Transactions or employment, compensation or benefits matters addressed in this Agreement or
related, directly or indirectly, to the Transactions or employment with Parent, the Surviving Corporation or any of their respective Subsidiaries thereafter, shall be subject to the prior review, comment and approval of Parent, which such review,
comment or approval shall not be unreasonably withheld, conditioned or delayed. (f) The provisions of this
Section 6.3 are solely for the benefit of the Parties, and no provision of this Section 6.3 is intended to, or shall, constitute the establishment or adoption of or an amendment to any employee
benefit plan for purposes of ERISA or otherwise, and no current or former employee or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of this Agreement or have the right to enforce the
provisions 56
hereof. Nothing in this Section 6.3 or elsewhere in this Agreement shall be construed to create a right in any Person to employment with Parent, the Surviving
Corporation or any other Affiliate of the Surviving Corporation or to any compensation or benefits and the employment of each Continuing Employee shall be at will employment. 6.4 ESPP. The Company shall take all actions necessary pursuant to the terms of the Company ESPP or otherwise to provide that
(a) no new offering period will be commenced following the date hereof under the Company ESPP and (b) the Company ESPP shall terminate immediately prior to the Effective Time. 6.5 Indemnification of Officers and Directors. (a) For a period of six (6) years from the Effective Time, Parent and the Surviving Corporation agree that all rights to indemnification,
advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, including with respect to this Agreement and the Transactions (and whether asserted or claimed prior to, at or after the
Effective Time) now existing in favor of the current or former directors or officers of any Acquired Corporation, including without limitation pursuant to the organizational documents of any Acquired Corporation, and any indemnification or other
similar agreements of any Acquired Corporation set forth in Section 6.5(a) of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance
with their terms, and Parent shall cause the Surviving Corporation and the other Acquired Corporation to perform their obligations thereunder; provided that all rights to indemnification, advancement of expenses and exculpation in respect of
any claim asserted or made, and for which an Indemnified Person delivers a written notice to Parent within such six (6) year period asserting a claim for such protections pursuant to this Section 6.5, shall continue
until the final disposition of such claim. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, Parent shall cause the Surviving Corporation and the other
Acquired Corporation to, and the Surviving Corporation agrees that it will, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of any Acquired
Corporation or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of any Acquired Corporation as a director or officer of another Person (the Indemnified
Persons), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys fees and disbursements, incurred in connection with any claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising
out of or pertaining to, or by reason of, the fact that the Indemnified Person is or was a director or officer of any Acquired Corporation or is or was serving at the request of any Acquired Corporation as a director or officer of another Person,
whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Legal Requirements. In the event of any such claim, action, suit or proceeding, each Indemnified Person will be entitled to
advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from the Surviving Corporation or the other Acquired Corporation, as applicable, in accordance with the organizational documents of the Acquired
Corporations, any indemnification or other similar agreements of the Acquired Corporations, as applicable, as in effect on the date of this 57
Agreement, as well as to the fullest extent permitted under applicable Legal Requirements, and Parent shall cause the Surviving Corporation and the other Acquired Corporation to provide such
advancement; provided that any Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final non-appealable adjudication that
such Indemnified Person is not entitled to indemnification. To the fullest extent permitted under applicable Legal Requirements, Parent shall pay, in advance, all reasonable attorneys fees and expenses that may be incurred by Indemnified
Persons in connection with their enforcement of their rights provided under this Section 6.5, provided that any Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is
ultimately determined by a final non-appealable adjudication that such Indemnified Person is not entitled to indemnification. (b) Prior to the Closing, Parent shall purchase a six (6)-year prepaid tail directors and officers, employment
practices and fiduciary liability insurance policy or policies for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors and officers, employment practices and fiduciary
liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations, such tails to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons
than the directors and officers, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to claims arising from acts or omissions that occurred
at or before the Effective Time and covering, without limitation, the Transactions; provided that in no event shall the cost of any such tail policy or policies exceed 300% of the aggregate annual premium most recently paid by the Acquired
Corporations prior to the date of this Agreement with respect to each such coverage (the Maximum Amount); provided further that if within ten (10) business days of the anticipated Closing, the Company
shall have reasonably determined that Parent has not arranged for any such tail policy or policies to be bound at Closing in accordance with the foregoing, then the Company shall have the right to purchase any such tail policy or policies (it being
understood, for the avoidance of doubt, that arranging for such insurance shall not require Parent to undertake any commitment prior to the Closing to pay any fees). If the aggregate premiums of any such tail insurance coverage exceeds the Maximum
Amount, then Parent or the Company, as applicable, may obtain a policy or policies with the greatest coverage available for a cost not exceeding the Maximum Amount. Parent, the Surviving Corporation and the other Acquired Corporation shall maintain
all such tail policies in full force and effect, and continue to honor the obligations thereunder. (c) In the event that Parent, the
Surviving Corporation, the other Acquired Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or Entity of such consolidation or
merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent, the Surviving Corporation or the other Acquired Corporation or any of their respective successors or
assigns, as applicable, shall ensure that any of their respective successors and assigns, as the case may be, or at Parents option, Parent, shall assume by operation of law or expressly in writing the obligations set forth in this
Section 6.5. 58
(d) The provisions of this Section 6.5 (i) shall survive the
acceptance of Shares for payment pursuant to the Offer and the consummation of the Merger and (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Persons), his or
her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract
or otherwise. Unless required by applicable Legal Requirement, neither this Section 6.5, nor the indemnification, exculpation or advancement provisions of any organizational documents of any Acquired Corporation in effect
on the date of this Agreement, may be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written
consent of the affected Indemnified Person. The Indemnified Persons to whom this Section 6.5 applies shall be third party beneficiaries of this Section 6.5. 6.6 Stockholder Litigation. The Company shall give Parent the right to review and comment on all material filings or responses
to be made by the Company in connection with any Transaction Litigation against the Company and/or its directors or officers relating to the Transactions, and the right to consult on any settlement with respect to such litigation, and the Company
shall in good faith take such consultation into account (to the extent that the attorney-client privilege is not lost as a result thereof). Prior to Closing, no such settlement shall be agreed to without Parents prior written consent
(provided, however, that, with respect to any such settlement prior to Closing that only requires payment of monetary amounts by the Company that do not exceed in the aggregate the amount set forth on Section 6.6 of the
Company Disclosure Schedule, such consent shall not be unreasonably withheld, conditioned or delayed). The Company shall promptly notify Parent of any such litigation and shall keep Parent reasonably and promptly informed with respect to the status
thereof. Without otherwise limiting or expanding the Indemnified Persons rights with regard to the right to counsel, and without limiting or expanding any other indemnification rights, following the Effective Time, Parent consents to the
continued representation of the Indemnified Persons by Goodwin Procter LLP to defend any Transaction Litigation. 6.7 Additional
Agreements. Subject to the terms and conditions of this Agreement, including Section 6.2, Parent, Purchaser and the Company shall use reasonable best efforts to take, or cause to be taken, all actions necessary to
consummate the Offer and the Merger and make effective the other Transactions. Without limiting the generality of the foregoing, subject to the terms and conditions of this Agreement, each Party to this Agreement shall use reasonable best efforts to
(a) make all filings (if any) and give all notices (if any) required to be made and given by such Party pursuant to any Material Contract in connection with the Offer and the Merger and the other Transactions, (b) use reasonable best
efforts to obtain each Consent (if any) required to be obtained pursuant to any Material Contract by such Party in connection with the Transactions and (c) use reasonable best efforts to lift any restraint, injunction or other legal bar to the
Offer or the Merger brought by any third Person against such Party. 6.8 Disclosure. The initial press release relating to
this Agreement shall be a joint press release issued by the Company and Parent and thereafter Parent and the Company shall consult with each other before issuing any further press release(s) or otherwise making any public statement (to the extent
not previously issued or made in accordance with this Agreement) with respect to the Offer, the Merger, this Agreement or any of the other Transactions and shall not issue any such press release or public statement without the other Partys
written consent (which 59
consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing: (a) each Party may, without such consultation or consent, make any public statement in
response to questions from the press, analysts, investors or those attending industry conferences, make internal announcements to employees and make disclosures in Company SEC Documents, so long as such statements are consistent with previous press
releases, public disclosures or public statements made jointly by the parties (or individually, if approved by the other Party); (b) a Party may, without the prior consent of the other Party but subject to giving advance notice to and reasonably
consulting with the other Party, issue any such press release or make any such public announcement or statement as may be required by Legal Requirement or the rules and regulations of any national securities exchange or national securities quotation
system and (c) no Party need consult with any other Party, or obtain its consent, in connection with such portion of any press release, public statement or filing to be issued or made pursuant to Section 5.3,
Section 6.1 or with respect to any Acquisition Proposal, Company Adverse Recommendation Change or Intervening Event. 6.9 Takeover Laws. If any Takeover Law may become, or may purport to be, applicable to the Transactions, each of Parent,
Purchaser and the Company and the members of their respective boards of directors shall use their respective reasonable best efforts to grant such approvals and take such actions as are necessary so that the Transactions may be consummated as
promptly as practicable on the terms and conditions contemplated hereby and otherwise act to lawfully eliminate the effect of any Takeover Law on any of the Transactions. 6.10 Section 16 Matters. The Company, and the Board of Directors, shall, to the extent necessary, take
appropriate action, prior to or as of the Offer Acceptance Time, to approve, for purposes of Section 16(b) of the Exchange Act, the disposition and cancellation or deemed disposition and cancellation of Shares and Company Options in the
Transactions by applicable individuals and to cause such dispositions and/or cancellations to be exempt under Rule 16b-3 promulgated under the Exchange Act. 6.11 Rule 14d-10 Matters. Prior to the Offer Acceptance Time and to the extent permitted
by applicable Legal Requirements, the compensation committee of the Board of Directors, at a meeting duly called and held, will approve, as an employment compensation, severance or other employee benefit arrangement within the meaning of
Rule 14d-10(d)(2) under the Exchange Act, each agreement, arrangement or understanding between Purchaser, the Company or their respective Affiliates and any of the officers, directors or employees of the
Company or its Subsidiaries that are effective as of the date of this Agreement or are entered into after the date of this Agreement and prior to the Offer Acceptance Time pursuant to which compensation is paid to such officer, director or employee
and will take all other action reasonably necessary to satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d)(2) under the Exchange
Act. 6.12 Purchaser Stockholder Consent. Immediately following the execution of this Agreement, Parent shall execute and
deliver, in accordance with Section 228 of the DGCL and in its capacity as the sole stockholder of Purchaser, a written consent adopting this Agreement. 60
6.13 Stock Exchange Delisting; Deregistration. Prior to the Closing Date, the
Company shall cooperate with Parent and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable laws and rules and
policies of NASDAQ to enable the delisting by the Surviving Corporation of the Shares from NASDAQ and the deregistration of the Shares under the Exchange Act as promptly as practicable after the Effective Time. 6.14 Notice of Certain Events. (a) Subject to applicable Legal Requirements with respect to the Key Product, the Company shall: (i) provide Parent with advance notice
of, and an opportunity for one designated Representative of Parent reasonably acceptable to the Company to participate as an observer in, any meetings or scheduled conference calls any Acquired Corporation has with any Specified Governmental Body
and consider in good faith any comments or other input reasonably provided by Parent in respect of the foregoing, (ii) promptly notify Parent of any written notice or other written communication (or any material
non-written communication) to any Acquired Corporation from any Specified Governmental Body or Review Board, (iii) furnish Parent with non-confidential copies of
all written correspondence, filings and other written communications between the Acquired Corporations and their respective Representatives, on one hand, and any Specified Governmental Body or Review Board, on the other hand, (iv) consult with
Parent prior to making any significant submission to any Specified Governmental Body or Review Board relating to any product or product candidate of the Acquired Corporations and (v) permit Parent to review in advance any proposed written
response, submission or other written communication by any Acquired Corporation to any Specified Governmental Body or Review Board and consider Parents reasonable comments thereto. (b) The Company shall give prompt notice to Parent upon its becoming aware of the occurrence or existence of any Effect that (i) has had
or would reasonably be expected to result in any Material Adverse Effect or (ii) is reasonably likely to result in any of the conditions set forth in Section 7 or Annex I not being able to be satisfied prior to
the End Date. Parent shall give prompt notice to the Company upon its becoming aware of the occurrence or existence of any Event that (A) has had or would reasonably be expected to have a Parent Material Adverse Effect or (B) is reasonably
likely to result in any of the Offer Conditions or any of the conditions set forth in Section 7 not being able to be satisfied prior to the End Date. For the avoidance of doubt, the delivery of any notice pursuant to this
Section 6.14(b) shall not affect or be deemed to modify any representation, warranty, covenant, right, remedy or condition to any obligation hereunder. 6.15 IP Matters. Prior to the Closing, the Company shall take all commercially reasonable actions necessary, including making
any filings necessary, to enter International Patent Application No. PCT/US2020/057099 into the national phase in each of Australia, Canada, China, Europe, Japan Mexico and the United States on or before the deadlines specified in
Section 6.15 of the Company Disclosure Schedules. 61
SECTION 7 CONDITIONS PRECEDENT TO THE MERGER 7.1 Conditions to Each Partys Obligation to Effect the Merger. The respective obligations of each Party to
effect the Merger shall be subject to the satisfaction (or waiver by the Company, Parent and Purchaser (as applicable), to the extent permissible under applicable Legal Requirements) on or prior to the Closing Date of the following conditions: (a) Company Stockholder Approval (if applicable). If an Offer Termination has occurred, then the Company Stockholder Approval shall have
been obtained. (b) Approvals Under Antitrust Laws. Any waiting period (and any extension thereof) applicable to the Merger under
the HSR Act shall have expired or been terminated. (c) No Legal Prohibition. There shall not have been issued by any Governmental
Body of competent jurisdiction and remain in effect any judgment, temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Merger, nor shall any Legal Requirement have been promulgated,
entered, enforced, enacted, issued or deemed applicable to the Merger by any Governmental Body which, directly or indirectly, prohibits or makes illegal the consummation of the Merger. (d) Purchase of Shares. Unless an Offer Termination has occurred, Purchaser (or Parent on Purchasers behalf) shall have accepted
for payment all of the Shares validly tendered pursuant to the Offer and not validly withdrawn. 7.2 Conditions to Obligations
of Parent and Purchaser to Effect the Merger. If an Offer Termination has occurred and the Merger is to be consummated other than pursuant to Section 251(h) of the DGCL, then the obligations of Parent and Purchaser to effect the Merger are
further subject to the fulfillment (or waiver by Parent and Purchaser, to the extent permissible under applicable Legal Requirements) on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in (i) clauses (a) through
(d) of Section 3.3 (Capitalization) of this Agreement shall be true and correct in all respects except for any de minimis inaccuracies as of the date of this Agreement and at and as of the Closing Date as
if made on and as of the Closing Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) Sections 3.1 (Due Organization;
Subsidiaries), 3.2 (Certificate of Incorporation and Bylaws), 3.20 (Authority; Binding Nature of Agreement), 3.21 (Takeover Laws) and 3.23 (Opinion of Financial Advisor) of this Agreement shall be true and correct in
all material respects (disregarding for this purpose all Material Adverse Effect and materiality qualifications contained in such representations and warranties) as of the date of this Agreement and at and as of Closing Date
as if made on and as of the Closing Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) Section 3.24 (Brokers
and Other Advisors) of this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on and as of the Closing Date; (iv) the representations and warranties of the Company
set forth in Section 3.5(a)(ii) (No Material Adverse Effect) of this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on and as of the Closing
Date with respect to the earlier period set forth in Section 3.5(a)(ii); (v) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clauses (i),
(ii), (iii), (iv) above) shall be true and correct (disregarding for this purpose all Material Adverse Effect and materiality qualifications 62
contained in such representations and warranties) as of the date of this Agreement and at and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such
representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. (b) No Company Material Adverse Effect. Since the
date of this Agreement, there shall not have been any Effect which, individually or in the aggregate, (i) has had a Material Adverse Effect that is continuing as of the Closing Date or (ii) would reasonably be expected to have a Material
Adverse Effect. (c) Performance of Obligations of the Company. The Company shall have complied with or performed in all material
respects the covenants and agreements it is required to comply with or perform at or prior to the Closing Date. (d) Delivery of
Certificates. The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer and Chief Financial Officer, certifying to the effect that the conditions set forth in
Section 7.2(a), 7.2(b) and 7.2(c) have been satisfied. 7.3 Conditions to Obligations of
the Company to Effect the Merger. If an Offer Termination has occurred and the Merger is to be consummated other than pursuant to Section 251(h) of the DGCL, then the obligations of the Company to effect the Merger are further subject to
the fulfillment (or waiver by the Company, to the extent permissible under applicable Legal Requirements) on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of Parent and Purchaser set forth in
(i) Sections 4.1 (Due Organization), 4.2 (Purchaser) and 4.3 (Authority; Binding Nature of Agreement) of this Agreement shall be true and correct in all material respects (disregarding for this
purpose all Parent Material Adverse Effect and materiality qualifications contained in such representations and warranties) as of the date of this Agreement and at and as of Closing Date as if made on and as of the Closing
Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) Section 4.10 (Brokers and Other Advisors) shall be true and
correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on and as of the Closing Date; and (iii) the representations and warranties of Parent set forth in this Agreement (other than those referred
to in clauses (i) and (ii) above) shall be true and correct (disregarding for this purpose all Parent Material Adverse Effect and materiality qualifications contained in such representations and warranties)
as of the date of this Agreement and at and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or
period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. 63
(b) Performance of Obligations of Parent and Purchaser. Parent and Purchaser shall
have performed and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date. (c) Delivery of Certificates. Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chief
Executive Officer and Chief Financial Officer, certifying to the effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied. SECTION 8 TERMINATION 8.1 Termination. This Agreement may be terminated, and the Merger contemplated hereby may be abandoned, prior to the Effective
Time (if applicable, whether before or after the Company Stockholder Approval shall have been obtained (unless otherwise provided below)): (a) by mutual written consent of Parent and the Company at any time prior to the Offer Acceptance Time (or if an Offer Termination has
occurred, prior to the Closing); (b) by either Parent or the Company, at any time prior to the Offer Acceptance Time (or if an Offer
Termination has occurred, prior to the Closing), if the Closing shall not have occurred in accordance with the terms of this Agreement on or prior to midnight Eastern Time, on October 18, 2022 (the End Date); provided,
however, that in the case of this Section 8.1(b), if on the End Date (x) if an Offer Termination shall not have occurred, all of the conditions set forth in Annex I, other than clause (a),
(e), or (g) (in the case of clauses (e) and (g), solely in respect of any Antitrust Law) set forth in Annex I, shall have been satisfied or waived by Parent or Purchaser, to the extent
waivable by Parent or Purchaser (other than conditions that by their nature are to be satisfied at the Offer Acceptance Time, each of which is then capable of being satisfied), or (y) if an Offer Termination shall have occurred, all of the
conditions set forth in Section 7, other than the conditions set forth in or Section 7.1(a), Section 7.1(b) or Section 7.1(c) (solely in respect
of any Antitrust Law), shall have been satisfied or waived, to the extent waivable (other than conditions that by their nature are to be satisfied on the Closing Date, each of which is then capable of being satisfied), then the End Date shall
automatically be extended to January 18, 2023 (and all references to the End Date herein and in Annex I shall be as so extended); provided further that if as of 11:59 p.m. Eastern time, January 18, 2023 (x) if an
Offer Termination shall not have occurred, all of the conditions set forth in Annex I, other than clause (a), (e) or (g) (in the case of clauses (e) and (g), solely in respect of any Antitrust
Law) set forth in Annex I, shall have been satisfied or waived by Parent or Purchaser, to the extent waivable by Parent or Purchaser (other than conditions that by their nature are to be satisfied at the Offer Acceptance
Time, each of which is then capable of being satisfied), or (y) if an Offer Termination shall have occurred, all of the conditions set forth in Section 7, other than the conditions set forth in
Section 7.1(b) or Section 7.1(c) (solely in respect of any Antitrust Law), shall have been satisfied or waived, to the extent waivable (other than conditions that by their nature are to be
satisfied on the Closing Date, each of which is then capable of being satisfied), then the End Date shall automatically be extended to April 18, 2023; provided further that the right to terminate this Agreement pursuant to this
Section 8.1(b) shall not be available to any Party whose material breach of this Agreement has been a proximate cause of the Closing not having occurred by such date; 64
(c) if an Offer Termination shall have occurred, by either Parent or the Company if the
Company Stockholder Approval shall not have been obtained at the Company Stockholder Meeting duly convened and held or any adjournment or postponement thereof permitted by this Agreement; (d) by either Parent or the Company if a Governmental Body of competent jurisdiction shall have issued an order, decree or ruling, or shall
have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the acceptance for payment of Shares pursuant to the Offer or the Merger or making the consummation of the Offer or the Merger illegal,
which order, decree, ruling or other action shall be final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to any Party
whose material breach of this Agreement has been a proximate cause of the issuance of such final and nonappealable order, decree, ruling or other action or to any Party that has failed to use its reasonable best efforts as required by
Section 6.2 to remove such order, decree, ruling or other action; (e) by Parent, at any time prior to the Cut-Off Time, if: (i) (A) the Board of Directors shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or the Merger Proxy Statement when
mailed, or (B) there shall have been a Company Adverse Recommendation Change; (ii) the Board of Directors shall have failed to publicly reaffirm the Company Board Recommendation (A) within five (5) business days after Parent so
requests in writing if any Acquisition Proposal (other than a tender offer or exchange offer) has been publicly announced and not publicly and irrevocably withdrawn or has not been publicly announced but has been received by the Company and not
irrevocably withdrawn (provided that, Parent may make such request pursuant to this clause (A) no more than once with respect to any Acquisition Proposal (but provided, further that each time a Determination Notice is delivered
Parent shall be entitled to make a new such request)) or (B) within ten (10) business days after Parent so requests (or, if earlier, within five business days prior to the Company Stockholder Meeting), if no Acquisition Proposal has been
publicly announced or has been received by the Company (provided that, Parent may only make such request pursuant to this clause (B) once every 30 days); or (iii) in the case of a tender offer or exchange offer subject to Regulation
14D under the Exchange Act, other than the Offer, the Board of Directors (A) states that it recommends such tender or exchange offer or expresses no opinion or is unable to take a position (other than a stop, look and listen
communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act) with respect to such tender or exchange offer or (B) fails to recommend rejection of such tender offer or exchange offer and
reaffirm the Company Board Recommendation in a solicitation/recommendation Statement on Schedule 14D-9 within ten (10) business days of the commencement of such tender offer or exchange offer within the
meaning of Rule 14d-2 under the Exchange Act (or, if earlier, by the later of (x) five business days prior to the Company Stockholder Meeting and (y) two business days after Parents request in
writing); 65
(f) by the Company, at any time prior to the Cut-off
Time, in order to accept a Superior Offer, and substantially concurrently enter into a binding written definitive acquisition agreement providing for the consummation of a transaction which the Board of Directors shall have determined, in good
faith, constitutes a Superior Offer (a Specified Agreement) in accordance with Section 6.1(b); provided that (x) the Acquired Corporations shall have complied in all material respects with
Section 5.3 and Section 6.1 in relation to such Superior Offer and (y) the Company shall have paid, or caused to be paid, to Parent the Termination Fee by wire transfer of immediately
available funds prior to or concurrently with any such termination; (g) by Parent at any time prior to the Offer Acceptance Time (or, if
an Offer Termination has occurred, the Closing Date), if (i) a breach of any representation or warranty contained in this Agreement or failure to perform or comply with any covenant or obligation in this Agreement on the part of the Company
shall have occurred, such that a condition set forth in (A) clause (b), (c) or (d) of Annex I (if an Offer Termination has not occurred) or (B) Section 7.2(a),
Section 7.2(b) or Section 7.2(c) (if an Offer Termination has occurred), as applicable, would not be satisfied, and (ii) such breach or failure to perform or comply cannot be cured by the
Company by the End Date, or if capable of being cured in such time period, shall not have been cured within thirty (30) days of the date Parent gives the Company written notice of such breach or failure to perform or comply; provided,
however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(g) if either Parent or Purchaser is then in breach of any representation, warranty, covenant or obligation
hereunder which breach would permit the Company to terminate this Agreement pursuant to Section 8.1(h); (h) by
the Company at any time prior to the Offer Acceptance Time (or, if an Offer Termination has occurred, the Closing Date), if (i) a breach of any representation or warranty contained in this Agreement or failure to perform or comply with any
covenant or obligation in this Agreement on the part of Parent or Purchaser shall have occurred, (A) which breach or failure to perform or comply would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect (if an Offer Termination has not occurred) or (B) such that a condition set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied (if an Offer Termination has occurred), as
applicable, and (ii) such breach or failure to perform or comply cannot be cured by Parent or Purchaser by the End Date, or if capable of being cured in such time period, shall not have been cured within thirty (30) days of the date the
Company gives Parent or Purchaser written notice of such breach or failure to perform or comply; provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this
Section 8.1(h) if the Company is then in breach of any representation, warranty, covenant or obligation hereunder which breach would permit Parent to terminate this Agreement pursuant to
Section 8.1(g); or (i) if an Offer Termination has not occurred, (i) by Parent, if the Offer (as it may
have been extended pursuant to Section 1.1(c)) expires or is terminated or withdrawn without all of the Offer Conditions having been satisfied; provided, however, that Parent shall not be entitled to terminate
this Agreement pursuant to this Section 8.1(i) in the event of any expiration, termination or withdrawal of the Offer in connection with which (A) Parent is obligated to extend the Offer in accordance with
Section 1.1(c) and (B) the Company has made the written request contemplated thereby, and (ii) by the Company, if the Offer (as it may have been extended pursuant to Section 1.1(c))
expires or is terminated or withdrawn without all of the Offer Conditions having been satisfied; provided, however, that the Company shall not be entitled to terminate this Agreement pursuant to this
Section 8.1(i) in the event of any expiration, termination or withdrawal of the Offer in connection with which Parent has the right to extend the Offer pursuant to Section 1.1(c); and,
provided, further, in each case, that the right to terminate this Agreement pursuant to this Section 8.1(i) shall not be available to any Party whose material breach of this Agreement has been a proximate
cause of the non-satisfaction of the Offer Condition that resulted in such expiration, termination or withdrawal; 66
(j) by the Company, (i) if Purchaser shall have failed to commence (within the meaning
of Rule 14d-2 under the Exchange Act) the Offer within the period specified in Section 1.1(a) without the prior written consent of the Company or (ii) except if an Offer
Termination has occurred, if Purchaser shall have failed to accept for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer within the period specified in Section 1.1(h). 8.2 Effect of Termination. In the event of the valid termination of this Agreement as provided in
Section 8.1, written notice thereof shall be given to the other Party or Parties, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become void and be of no
further force or effect and there shall be no liability on the part of Parent, Purchaser or the Company or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates following any
such termination; provided, however, that (a) the final sentence of Section 1.2(b), the final sentence of Section 5.1, this Section 8.2,
Section 8.3 and Section 9 (other than Section 9.5(b) and 9.5(c)) shall survive the termination of this Agreement and shall remain in full force and effect, (b) the
Confidentiality Agreement shall survive the termination of this Agreement and shall remain in full force and effect in accordance with its terms and (c) the termination of this Agreement shall not relieve any Party from any liability for fraud
or Willful Breach of this Agreement prior to termination. 8.3 Expenses; Termination Fee. (a) Except as set forth in Section 5.4(c), Section 6.2(e) and this
Section 8.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring such expenses, whether or not the Offer and Merger are consummated. (b) In the event that: (i)
this Agreement is terminated by the Company pursuant to Section 8.1(f); (ii) this Agreement is terminated by
Parent pursuant to Section 8.1(e) (or at the time this Agreement is terminated, Parent had the right to terminate this Agreement pursuant to Section 8.1(e)); or (iii) (x) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) (provided that
(1) at the time of any such termination, (x) if an Offer Termination has not occurred, the Minimum Condition is not satisfied or (y) if an Offer Termination has occurred, the Company Stockholder Approval shall not have been obtained),
and (2) with respect to any such termination by the Company, the right to terminate this Agreement pursuant to Section 8.1(b) is then available to Parent), Section 8.1(c) or
Section 8.1(i) or by Parent pursuant to Section 8.1(g) resulting from a breach by the Company of Section 5.3 or 6.1, or a Willful Breach by the Company of
Section 1.2, Section 5.4 or Section 6.2, (y) any Person shall have publicly 67
disclosed a bona fide Acquisition Proposal, or any Acquisition Proposal shall have been communicated to the Board of Directors, in each case after the date hereof and prior to such
termination (unless such Acquisition Proposal was irrevocably withdrawn without qualification at least two business days prior to the event giving rise to the right of such termination (such withdrawal to be public, if such Acquisition Proposal
shall have been publicly disclosed) and (z) within twelve (12) months of such termination the Company shall have entered into a definitive agreement with respect to, or consummated, an Acquisition Proposal; provided that for
purposes of this clause (z) the references to 15% in the definition of Acquisition Proposal shall be deemed to be references to 50%; (c) then, in any such event under clause (i), (ii) or (iii) of Section 8.3(b), the Company
shall pay, or shall cause to be paid, to Parent or its designee the Termination Fee by wire transfer of same day funds (x) in the case of Section 8.3(b)(i), prior to or concurrently with the execution of the Specified
Agreement (or if the Specified Agreement is executed on a day that is not a business day, the next business day), (y) in the case of Section 8.3(b)(ii), within two (2) business days after such termination or
(z) in the case of Section 8.3(b)(iii), prior to or concurrently with the earlier of entering into the definitive agreement with respect to, or consummating, the Acquisition Proposal referred to in clause
(z) of Section 8.3(b)(iii); it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. As used herein, Termination Fee shall mean a
cash amount equal to $8,750,000. Payment of the Termination Fee pursuant to this Section 8.3(c) and any payments pursuant to Section 8.3(e) shall be deemed to be liquidated damages for any and all
losses or damages suffered or incurred by Parent, Purchaser or any of their respective Affiliates in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such
termination, and the Company shall have no further liability, whether pursuant to a claim in law or in equity, to Parent, Purchaser or any of their respective Affiliates or any other Person, and none of Parent, Purchaser or any of their respective
Affiliates shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates, in each case, arising out of or in connection with this Agreement, any of the Transactions or any matters forming the
basis for such termination; provided, that the foregoing shall not relieve any Company Related Party from any liability for fraud or Willful Breach of this Agreement prior to such termination. (d) In the event of any termination described in Section 8.3(b), (i) payment from the Company to Parent of the
Termination Fee pursuant to Section 8.3(c) and any payments pursuant to Section 8.3(e) shall be the sole and exclusive remedy of Parent, Purchaser or any of their respective Affiliates against the
Acquired Corporations and any of their respective former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, other Representatives or Affiliates (collectively, Company Related
Parties) for any loss suffered as a result of the failure of the Offer or the Merger to be consummated or for a breach or failure to perform hereunder or otherwise, and (ii) upon payment of such amount(s), none of the Company Related
Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions; provided, that the foregoing shall not relieve any Company Related Party from any liability for fraud or Willful Breach
of this Agreement prior to such termination. 68
(e) The Parties acknowledge that the agreements contained in this
Section 8.3 are an integral part of the Transactions and that, without these agreements, the Parties would not enter into this Agreement; accordingly, if the Company fails to timely pay any amount due pursuant to
Section 8.3(c), and, in order to obtain the payment, Parent commences a Legal Proceeding to collect such amounts which results in a judgment against the Company, the Company shall pay Parent its reasonable and documented
costs and expenses (including reasonable and documented attorneys fees) in connection with such Legal Proceeding, together with interest on such amount at a rate equal to the sum of (i) the prime rate as published in the Wall Street
Journal in effect on the date such payment was required to be made and (ii) five percent, with such interest accruing on such amount from the date such payment was required to be made through the date such payment was actually received. SECTION 9 MISCELLANEOUS PROVISIONS 9.1 Amendment. Prior to the Effective Time, whether before or after the Company Stockholder Approval shall have been obtained,
this Agreement may be amended with the approval of each of Parent and Purchaser and the Board of Directors at any time; provided, if applicable, that following receipt of the Company Stockholder Approval no amendment may be made which under
applicable Legal Requirements requires further stockholder approval without obtaining such approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties. 9.2 Waiver. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. At any time prior to the Effective Time, Parent and Purchaser, on the one hand, and the Company, on the other hand, may (a) extend
the time for the performance of any of the obligations or other acts of the other, (b) waive any breach of the representations and warranties of the other contained herein or in any document delivered pursuant hereto or (c) waive
compliance by the other with any of the agreements or covenants contained herein. Any such extension or waiver shall be valid only if is expressly set forth in a written instrument duly executed and delivered on behalf of the Party or Parties to be
bound thereby, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. 9.3 No Survival of Representations and Warranties. None of the representations and warranties contained in this Agreement, the
Company Disclosure Schedule or in any certificate or schedule or other document delivered by any Person pursuant to this Agreement shall survive the Merger. This Section 9.3 shall not limit any covenant or agreement
contained in this Agreement which by its terms contemplates performance after the Effective Time. 69
9.4 Entire Agreement; Counterparts. This Agreement (including its Exhibits,
Annexes and the Company Disclosure Schedule), the Support Agreement and the Confidentiality Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the Parties
and their respective Affiliates, with respect to the subject matter hereof and thereof. This Agreement may be executed in one or more counterparts, including by facsimile or by email with .pdf attachments, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. 9.5 Applicable Legal Requirements; Jurisdiction; Specific Performance; Remedies. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof. In any action or proceeding arising out of or relating to this Agreement or any of the Transactions: (i) each of the Parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the Chancery Court of the State of Delaware and any state appellate court therefrom or, if (but only if) such court lacks subject matter jurisdiction, the United States District Court
sitting in New Castle County in the State of Delaware and any appellate court therefrom (collectively, the Delaware Courts); and (ii) each of the Parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 9.8; provided that nothing in this Section 9.5(a) shall
affect the right of any Party to serve legal process in any other manner permitted by applicable Legal Requirements. Each of the Parties irrevocably and unconditionally (1) agrees not to commence any such action or proceeding except in the
Delaware Courts, (2) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Delaware Courts, (3) waives, to the fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the jurisdiction or laying of venue of any such action or proceeding in the Delaware Courts and (4) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in the Delaware Courts. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal
Requirements; provided, however, that nothing in the foregoing shall restrict any Partys rights to seek any post-judgment relief regarding, or any appeal from, such final trial court judgment. (b) The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in
the event that the Parties do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that (i) the Parties shall be
entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in
Section 9.5(a) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (ii) the right of specific performance is an integral part of the
Transactions and without that right, neither the Company nor Parent would have entered into this Agreement. The right to specific performance hereunder shall include the right of each of the Parties to cause the other Parties to cause the Offer, the
Merger and the other Transactions to be consummated on the terms and subject to the conditions set forth in this Agreement. Each of the Parties agrees that it will not oppose the 70
granting of an injunction, specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or an award of specific performance is not an
appropriate remedy for any reason at law or equity. The Parties acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in
accordance with this Section 9.5(b) shall not be required to provide any bond or other security in connection with any such order or injunction. (c) The Parties acknowledge and agree that time is of the essence and that the Parties would suffer ongoing irreparable injury for so long as
any provision of this Agreement is not performed in accordance with its specific terms (but subject to any time period allotted for such performance by such terms). It is accordingly agreed that, as to any Legal Proceedings in which a Party seeks
specific performance or other equitable relief pursuant to Section 9.5(b), the Parties shall use their commercially reasonable efforts to seek an expedited schedule for such proceedings and shall not oppose any Partys
request for expedited proceedings. (d) EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
BETWEEN THE PARTIES (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY (I) MAKES THIS WAIVER VOLUNTARILY AND (II) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN
THIS SECTION 9.5(d). 9.6 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the rights hereunder may be assigned by a Party without the
prior written consent of the other Parties, and any attempted assignment of this Agreement or any of such rights without such consent shall be void and of no effect; provided, further, however, that Parent or Purchaser may assign this Agreement to
any of their controlled Affiliates (provided that such assignment by Parent shall not relieve Parent or Purchaser of its obligations hereunder or otherwise alter or change any obligation of any other Party hereto and no such assignment shall
be permitted to the extent it would reasonably be expected to delay the Closing). 9.7 No Third Party
Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; except for:
(a) if the Offer Acceptance Time occurs, (i) the right of the Companys stockholders to receive the Offer Price or Merger Consideration, as applicable, pursuant to Section 1 or
Section 2 following the Offer Acceptance Time or the Effective Time, as applicable, in accordance with the terms of this Agreement, and (ii) the right of the holders of Company Options to receive the Merger
Consideration pursuant to Section 2.8 following the Effective Time in accordance with the terms of this Agreement; (b) the provisions set forth in Section 6.5 of this Agreement; and
(c) the limitations on liability of the Company Related Parties set forth in Section 8.3(d). 71
9.8 Notices. Any notice or other communication required or permitted to be
delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand, (b) one (1) business day after being sent for next business day
delivery, fees prepaid, via a reputable nationwide overnight courier service, (c) if sent by email or facsimile transmission, upon transmission (as long as no notice of failure of delivery is received); provided that in each case the
notice or other communication is sent to the physical address, email address or facsimile number set forth beneath the name of such Party below (or to such other physical address, email address or facsimile number as such Party shall have specified
in a written notice given to the other Parties): if to Parent or Purchaser (or following the Effective Time, the Surviving Corporation):
Regeneron Pharmaceuticals, Inc. 777 Old Saw Mill River Road Tarrytown, New York 10591 Attention: Joseph J. LaRosa Executive Vice President, General Counsel and Secretary Email: [Omitted] with a copy
(which shall not constitute notice) to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York,
New York 10019 Attention: Andrew R. Brownstein Victor Goldfeld John L. Robinson Email: ARBrownstein@wlrk.com VGoldfeld@wlrk.com JLRobinson@wlrk.com if to the Company (prior to the Effective Time): Checkmate Pharmaceuticals, Inc. 245 Main Street, 2nd Floor Cambridge, Massachusetts 02142 Attention: Katherine Eade, General Counsel Email: [Omitted] 72
with a copy (which shall not constitute notice) to: Goodwin Procter LLP 100
Northern Avenue Boston, Massachusetts 02110 Attention: Stuart M. Cable Mitchell S. Bloom Robert Masella Andrew H. Goodman Email: SCable@goodwinlaw.com MBloom@goodwinlaw.com RMasella@goodwinlaw.com AGoodman@goodwinlaw.com 9.9 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of
a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific
words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and
enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that
will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision. 9.10 Obligation of Parent. Parent shall ensure that Purchaser duly performs, satisfies and discharges on a timely basis
each of the covenants, obligations and liabilities applicable to Purchaser under this Agreement. 9.11 Construction. (a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders. (b) The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be
applied in the construction or interpretation of this Agreement. 73
(c) As used in this Agreement, the words include and including, and
variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words without limitation. (d) Except as otherwise indicated, all references in this Agreement to Sections, Exhibits or Annexes are
intended to refer to Sections of this Agreement and Exhibits or Annexes to this Agreement. (e) The bold-faced headings contained in this
Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. (f) All references to cash, Dollars or $ are to United States Dollars, unless expressly stated otherwise.
(g) As used in this Agreement, the words ordinary course of business shall be deemed to be followed by consistent with
past practice, whether or not actually so followed. (h) The phrases made available and delivered, when used
in reference to anything made available to Parent, Purchaser or any of their respective Representatives prior to the execution of this Agreement, shall be deemed to mean uploaded to and made available to Parent, Purchaser and their respective
Representatives in the online data room hosted on behalf of the Company by dfsvenue under the name diligence or delivered by or on behalf of the Company to Parent or its Representatives via email, in each case in complete and unredacted
form prior to the date hereof. [Signature page follows] 74
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the
date first above written. [Signature Page to Agreement and Plan of Merger]
EXHIBIT A CERTAIN DEFINITIONS For
purposes of the Agreement (including this Exhibit A): 2022 Bonus. 2022 Bonus is defined in
Section 6.3(a) of the Company Disclosure Schedule. Acceptable Confidentiality Agreement.
Acceptable Confidentiality Agreement is defined in Section 5.3(a) of the Agreement. Acquired Corporations. Acquired Corporations is defined in Section 3.1(a) of the
Agreement. Acquisition Proposal. Acquisition Proposal shall mean any proposal or offer from any Person (other
than Parent and its Affiliates) or group, within the meaning of Section 13(d) of the Exchange Act, including any amendment or modification to any such proposal or offer, relating to, in a single transaction or series of related
transactions, any (A) acquisition, lease, exchange, transfer or other disposition or exclusive license of assets (including equity interests of the Subsidiary) of any of the Acquired Corporations with a fair market value equal to 15% or more of
the Companys consolidated assets or to which 15% or more of the Companys revenues or earnings on a consolidated basis are attributable, (B) issuance or acquisition of 15% or more of the outstanding Company Common Stock or other
voting or equity securities of the Company, (C) recapitalization, tender offer or exchange offer that if consummated would result in any Person or group beneficially owning 15% or more of the outstanding Company Common Stock,
(D) acquisition or exclusive license of all or substantially all of the rights to the Key Product or (E) merger, consolidation, amalgamation, share exchange, business combination, recapitalization, liquidation, dissolution or similar
transaction involving the Acquired Corporations that if consummated would result in any Person or group beneficially owning 15% or more of the outstanding Company Common Stock or other voting or equity securities of the Company, in each case other
than the Transactions. Adverse Drug Reaction Reporting. Adverse Drug Reaction Reporting shall mean the
reporting to Governmental Body and non-governmental Entities of safety events as required under Drug Laws and relevant regulations, including the submission of IND safety reports to the FDA, investigators, and
Review Boards. Affiliate. Affiliate shall mean, as to any Person, any other Person that, directly or
indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, control (including, with its correlative meanings, controlled by and under common control with) shall mean
the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by Contract or otherwise. Agreement. Agreement is defined in the preamble to the Agreement. 1
Anti-Corruption Laws. Anti-Corruption Laws shall mean the Foreign
Corrupt Practices Act of 1977, as amended, the Anti-Kickback Act of 1986, as amended, the UK Bribery Act of 2010, and the Anti-Bribery Laws of the Peoples Republic of China or any applicable Legal Requirements of similar effect, and the
related regulations and published interpretations thereunder. Antitrust Laws. Antitrust Laws shall mean the
Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, all applicable foreign laws and all other applicable Legal Requirements issued by a Governmental Body that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition. Board of Directors. Board of Directors is defined in Recital C to the Agreement Book-Entry Shares. Book-Entry Shares shall mean non-certificated Shares
represented by book-entry. business day. business day shall mean any day except (i) a Saturday or a
Sunday, (ii) a day on which banks in the City of New York are authorized or required by Legal Requirements to be closed, or (iii) a day on which the principal offices of the SEC in Washington, D.C. are not open to accept filings. Capitalization Date. Capitalization Date is defined in Section 3.3(a) of the Agreement.
Certificates. Certificates is defined in Section 2.6(b) of the Agreement. Change of Control Payment. Change of Control Payment is defined in Section 3.9(a)(viii) of
the Agreement. Closing. Closing is defined in Section 2.3(a) of the Agreement. Closing Date. Closing Date is defined in Section 2.3(a) of the Agreement. Code. Code shall mean the Internal Revenue Code of 1986, as amended. Company. Company is defined in the preamble to the Agreement. Company Adverse Recommendation Change. Company Adverse Recommendation Change is defined in
Section 6.1(a) of the Agreement. Company Associate. Company Associate shall mean each
current and former officer or other employee, or individual who is an independent contractor, consultant or director, of or to the Company or its Subsidiaries. Company Board Recommendation. Company Board Recommendation is defined in Recital C of the Agreement. 2
Company Common Stock. Company Common Stock shall mean the common
stock, $0.0001 par value per share, of the Company. Company Disclosure Documents. Company Disclosure Documents
is defined in Section 3.4(h) of the Agreement. Company Disclosure Schedule. Company Disclosure
Schedule shall mean the disclosure schedule that has been prepared by the Company in accordance with the requirements of the Agreement and that has been delivered by the Company to Parent on the date and prior to the execution of the
Agreement. Company Equity Plans. Company Equity Plans shall mean the 2020 Stock Option and Incentive Plan, as
amended and the 2015 Stock Option and Grant Plan, as amended. Company ESPP. Company ESPP shall mean the 2020
Employee Stock Purchase Plan. Company IP. Company IP shall mean, collectively, (a) all Intellectual
Property Rights that are owned by the Acquired Corporations and (b) all third party Intellectual Property Rights exclusively licensed to any of the Acquired Corporations. Company Options. Company Options shall mean all compensatory options to purchase Shares. Company Preferred Stock. Company Preferred Stock shall mean the undesignated preferred stock, $0.0001 par value per
share, of the Company. Company Related Parties. Company Related Parties is defined in
Section 8.3(d) of the Agreement. Company SEC Documents. Company SEC Documents is
defined in Section 3.4(a) of the Agreement. Company Stockholder Approval. Company Stockholder
Approval is defined in Section 3.20 of the Agreement. Company Stockholder Meeting.
Company Stockholder Meeting is defined in Section 5.4(b) of the Agreement. Company
Subsidiary. Company Subsidiary is defined in Section 3.1(a) of the Agreement. Confidentiality Agreement. Confidentiality Agreement is defined in Section 5.1 of the
Agreement. Consent. Consent shall mean any approval, consent, ratification, permission, waiver or
authorization. 3
Continuation Period. Continuation Period is defined in
Section 6.3(a) of the Agreement. Continuing Employee. Continuing Employee is defined
in Section 6.3(a) of the Agreement. Contract. Contract shall mean any agreement,
contract, subcontract, lease, understanding, instrument, bond, debenture, note, option, warrant, license, sublicense, commitment or undertaking. Converted Shares. Converted Shares is defined in Section 1.1(a) of the Agreement. Copyrights. Copyrights is defined in the definition of Intellectual Property Rights. COVID-19. COVID-19 means SARS-CoV-2 or the COVID-19 virus, and any evolutions or mutations thereof and any related or associated epidemics, pandemics or disease
outbreaks. COVID-19 Measures. COVID-19
Measures means any quarantine, shelter in place, stay at home, workforce reduction, social distancing, shut down, closure, sequester or any other law, regulation, rule, order, directive, guideline or recommendation
of any Governmental Body or industry group in connection with or in response to COVID-19, including the Coronavirus Aid, Relief, and Economic Security Act and the Families First Coronavirus Response Act. Cut-off Time. Cutoff Time is defined in
Section 5.3(c) of the Agreement. Data Privacy Laws. Data Privacy Laws means all
applicable federal, state, local and international laws, regulations and directives governing the Processing of Personal Information. Delaware Courts. Delaware Courts is defined in Section 9.5(a) of the Agreement. Depository Agent. Depository Agent is defined in Section 2.6(a) of the Agreement. Determination Notice. Determination Notice is defined in Section 6.1(b)(i) of the
Agreement. DGCL. DGCL shall mean the Delaware General Corporation Law, as amended. Dissenting Shares. Dissenting Shares is defined in Section 2.7 of the Agreement. DOJ. DOJ shall mean the U.S. Department of Justice. DOL. DOL is defined in Section 3.16(c) of the Agreement. Drug Law. Drug Law shall mean statutes, laws (statutory, common or otherwise), ordinances, rules, regulations and
administrative policies enforced by the FDA, EMA the NIH and other comparable Governmental Bodies. Effect.
Effect is defined in the definition of Material Adverse Effect. 4
Effective Time. Effective Time is defined in
Section 2.3(b) of the Agreement. EMA. EMA shall mean the European Medicines Agency.
Employee Plan. Employee Plan shall mean any (a) employee benefit plan (as defined in Section 3(3) of
ERISA), whether or not subject to ERISA, (b) bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, other equity-based plan, severance pay, termination pay, death and disability benefits, hospitalization,
medical, life or other insurance or welfare benefits, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, policy, program, agreement or arrangement, and (c) employment, consulting, severance or
similar agreement, and each other employee benefit plan, or arrangement, in each case that is (i) sponsored, maintained, contributed to or required to be contributed to by the Company or its Affiliates for the benefit of any current or former
employee or other individual service provider of the Company or its Subsidiaries, (ii) with respect to which the Company or any of its Subsidiaries has any actual or contingent liability or (iii) to which the Company or any of its
Subsidiaries is a party. Encumbrance. Encumbrance shall mean any lien, pledge, hypothecation, charge, mortgage,
deed of trust, security interest, encumbrance, claim, infringement, interference, option, right of first refusal or first offer, preemptive right, community property interest, easement, encroachment, restriction, conditional sale, title retention or
other similar restriction (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of
any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset) or other security arrangement, adverse claim of ownership or use, right of way or other title defect or similar restriction of
any nature. End Date. End Date is defined in Section 8.1(b) of the Agreement. Entity. Entity shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other
enterprise, association, organization or entity. Environmental Law. Environmental Law shall mean any federal,
state, local or foreign Legal Requirement relating to occupational health and safety, pollution or protection of worker health and safety or the environment (including ambient air, surface water, ground water, sediment, land surface or subsurface
strata), including any law or regulation relating to emissions, discharges, Releases or threatened Releases of Hazardous Materials, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials. ERISA. ERISA shall mean the U.S. Employee Retirement Income Security Act of
1974, as amended. EU. EU is defined in the definition of Global Trade Laws and Regulations. 5
Exchange Act. Exchange Act shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder. Excluded Shares. Excluded Shares is
defined in Section 1.1(a) of the Agreement. Expiration Date. Expiration Date is
defined in Section 1.1(c) of the Agreement. Extension Deadline. Extension Deadline is
defined in Section 1.1(c) of the Agreement. FDA. FDA shall mean the United States
Food and Drug Administration. FDCA. FDCA shall mean the Federal Food, Drug and Cosmetic Act, as amended, and
all rules and regulations promulgated thereunder. FTC. FTC shall mean the U.S. Federal Trade Commission. GAAP. GAAP is defined in Section 3.4(b) of the Agreement. Global Trade Laws and Regulations. Global Trade Laws and Regulations shall mean the U.S. Export Administration
Regulations; the U.S. International Traffic in Arms Regulations; the import laws administered by U.S. Customs and Border Protection; the economic sanctions rules and regulations administered by the U.S. Treasury Departments Office of Foreign
Assets Control; the anti-boycott laws and regulations administered by the U.S. Departments of Commerce and the Treasury; the UK Export Control Act 2002; UK Export Control Order 2008/3231; European Union (EU) Council Regulation
428/2009 (as maintained by the European Union or retained by the United Kingdom); EU Council sanctions regulations, as implemented in EU Member States; sanctions regimes implemented under the UK Sanctions and Anti-Money Laundering Act 2018; Canadian
sanctions policies; United Nations sanctions policies; all relevant regulations made under any of the foregoing; and other similar applicable economic and trade sanctions, export or import control laws. Good Clinical Practice Requirements. Good Clinical Practice Requirements shall mean (i) FDAs standards
for the design, conduct, performance, monitoring, auditing, recording, analysis, and reporting of clinical trials, including those standards contained in 21 C.F.R. Parts 50, 54, 56 and 312, (ii) the Declaration of Helsinki and all relevant
requirements of the International Council for Harmonization guidelines, including ICH E6 (R2) and (iii) comparable standards of any other applicable Governmental Body. Good Laboratory Practice Requirements. Good Laboratory Practice Requirements shall mean the FDAs and the
ICHs standards for conducting non-clinical laboratory studies, including those standards contained in 21 C.F.R. Part 58, and comparable standards of any other applicable Governmental Body. Good Manufacturing Practice Requirements. Good Manufacturing Practice Requirements shall mean the requirements set
forth in the quality system regulations for drugs contained in 21 C.F.R. Parts 210, 211, 600 and 610 and comparable standards of any other applicable Governmental Body. 6
Governmental Authorization. Governmental Authorization shall mean
any: approval, consent, permit, license, certificate, franchise, permission, variance, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement. Governmental Body. Governmental Body shall mean any applicable:
(a) nation, state, commonwealth, province, territory, county, municipality, district or other applicable legal jurisdiction; (b) federal, state, local, municipal, foreign, international, multinational, supranational or other government; or
(c) governmental authority of any nature including any governmental division, unit, department, agency, commission, instrumentality, official or body and any court, arbitrator or other tribunal. Hazardous Materials. Hazardous Materials shall mean any materials, wastes, substances or agents that are identified,
listed, regulated or defined under any Environmental Law, including any pollutant, contaminant, hazardous substance, hazardous waste, special waste, solid or toxic or infectious waste, asbestos or asbestos-containing material, toxic mold,
radioactive material, polychlorinated biphenyls, and petroleum or petroleum-derived substance or waste. HIPAA.
HIPAA means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act. HSR Act. HSR Act shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder. In-bound License. In-bound License is defined in Section 3.8(f) of the Agreement. ICH. ICH shall mean The International Council for Harmonization of Technical Requirements for Pharmaceuticals for
Human Use. IND. IND means an investigational new drug application or clinical trial application filed
with the FDA or any comparable foreign Governmental Body, including all documents, data, amendments, supplements and other information concerning the applicable drug that are necessary for or filed with such application. Indebtedness. Indebtedness shall mean, all liabilities or other obligations (including all obligations in respect of
principal, accrued interest, penalties, fees and premiums) of the Company and its Subsidiaries in respect of, (i) any indebtedness for borrowed money (including the issuance of any debt security), any capital lease obligations and any synthetic
lease obligations, (ii) any obligations evidenced by notes, bonds, debentures or similar Contracts, (iii) any obligations in respect of letters of credit and bankers acceptances (other than letters of credit used in the ordinary
course of business consistent with past practice as security for leases), bank guarantees, surety bonds and similar instruments, regardless of whether drawn upon, including the principal, interest and fees owing thereon, (iv) all indebtedness
created or arising under any conditional sale or other title retention agreement with respect to property acquired, (v) net cash payment obligations of such Person under swaps, options, derivatives and other hedging agreements or arrangements
that would be payable upon termination thereof (assuming they were terminated on the date of determination), (vi) all obligations representing the deferred and unpaid purchase price of property or services (other than trade payables incurred in the
ordinary course of business consistent with 7
past practice that are not past due), (vii) all obligations in respect of leases required to be capitalized under GAAP, (viii) any securitization transaction, (ix) net obligations of
any interest rate, swap, currency swap, forward currency or interest rate contracts or other interest rate, currency or commodity hedging arrangements or (x) any guaranty (or any other arrangement having the economic effect of a guaranty) of
any such obligations described in clauses (i) through (ix) of any other Person. Indemnified Persons.
Indemnified Persons is defined in Section 6.5(a) of the Agreement. Initial Expiration
Date. Initial Expiration Date is defined in Section 1.1(c) of the Agreement. insurance policies. insurance policies is defined in Section 3.18 of the Agreement. Intellectual Property Rights. Intellectual Property Rights shall mean all past, present, and future intellectual
property and industrial property rights of every kind and description throughout the world, including all U.S. and foreign (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof (Patents), (ii) trademarks, service marks,
names, corporate names, trade names, domain names, logos, slogans, trade dress, design rights, URLs, social media accounts and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing and
applications and registrations for the foregoing (Trademarks), (iii) rights associated with works of authorship, including exclusive exploitative rights, copyrights and copyrightable subject matter including computer software
and firmware, databases and mask works, and moral rights (Copyrights), (iv) trade secrets and confidential ideas, know-how, inventions, discoveries, specifications, formulations, formulae,
models, designs, drawings, techniques, protocols, proprietary processes and methodologies, research and development information, results, strategies, technology, business plans, regulatory documentation and submissions, and information pertaining
to, or made in association with, filings with any Governmental Authority or patent office, data (including pharmacological, toxicological, non-clinical, pre-clinical and
clinical data, analytical and quality control data, manufacturing data and descriptions, market data, financial data or descriptions), databases, data collections, data sets, curated data content, and data layers, devices, assays, specifications,
physical, chemical and biological materials and compounds, compound libraries, and the like, in written, electronic, oral or other tangible or intangible form, whether or not patentable
(Know-How), (v) rights of privacy and publicity, and (vi) all registrations, renewals, extensions, combinations, statutory invention registrations, provisionals, continuations, continuations-in-part, divisions, or reissues and reexamination certificates of, any patents resulting from any post-grant proceedings involving any of the foregoing and
applications for, any of the rights referred to in clauses (i) through (v) above (whether or not in tangible form and including all tangible embodiments of any of the foregoing, such as samples, studies
and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration, renewal, reexamination, extension, application, recordation or other administrative proceeding, and all causes of action and
rights to sue, seek other remedies, or recover and retain damages for past, present and future infringement, dilution, misappropriation or other violation arising from or relating to the foregoing. 8
Intervening Event. Intervening Event shall mean any event, fact,
circumstance, development or occurrence that is material to the Company and the Company Subsidiary (taken as a whole) that was not known or reasonably foreseeable to the Board of Directors (or, if known, the material consequences of which were not
known or reasonably foreseeable by the Board of Directors) as of or prior to the date of this Agreement and does not relate to any Acquisition Proposal. In the Money Option. In the Money Option is defined in Section 2.8(a) of the Agreement.
IRS. IRS shall mean the U.S. Internal Revenue Service. Key Product. Key Product shall mean the Companys product candidate Vidutolimod
(CMP-001). Know-How. Know-How is defined in the definition of Intellectual Property Rights. knowledge.
knowledge with respect to an Entity shall mean with respect to any matter in question the actual knowledge, after reasonable inquiry, of such Entitys executive officers, and in addition, with respect to the Company with
respect to the representations and warranties in Section 3.8, shall also include the actual knowledge, after reasonable inquiry, of Arthur Krieg, M.D. Leased Real Property. Leased Real Property is defined in Section 3.7(b) of the Agreement.
Legal Proceeding. Legal Proceeding shall mean any action, suit, charge, complaint, litigation, arbitration,
proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other
Governmental Body or any arbitrator or arbitration panel. Legal Requirement. Legal Requirement shall mean any
federal, state, local, municipal, foreign or other law, statute, constitution, ordinance, common law, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect
by or under the authority of any Governmental Body (or under the authority of NASDAQ or another stock exchange). Material Adverse
Effect. Material Adverse Effect shall mean any event, occurrence, development, circumstance, change or effect (Effect) which, individually or in the aggregate, has had or would reasonably be expected to have
a material adverse effect on the business, assets, financial condition or results of operations of the Acquired Corporations, taken as a whole; provided, however, that none of the following (alone or in combination) shall be deemed to
constitute or be taken into account in determining whether there is, or would reasonably be expected to be, a Material Adverse Effect: (i) any change in the market price or trading volume of the Companys stock or change in the
Companys credit ratings; provided that the underlying causes of any such change may be considered in determining whether a Material Adverse Effect has occurred to the extent not otherwise excluded by another exception herein;
(ii) any Effect 9
resulting from the execution or announcement of this Agreement, the identity of Parent as the acquiror of the Company or consummation of the Transactions, including the impact of any of the
foregoing on the relationships, contractual or otherwise, of the Acquired Corporations with employees, customers, investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors, Governmental Bodies or other material
business relations (provided that this clause (ii) shall not apply with respect to any representation or warranty contained in Section 3.8(j), Section 3.16(g) or
Section 3.22 or any other representation or warranty that specifically references the consequences of the execution, delivery or performance of this Agreement or the consummation of the Transactions and the conditions set
forth in clause (b)(iii) of Annex I or Section 7.2(a) solely as such conditions relate to Section 3.8(j), Section 3.16(g) or
Section 3.22 or any such other representations and warranties); (iii) any Effect generally affecting the industries in which the Acquired Corporations operate or in the economy generally or other general business,
economic, political, financial or market conditions, including changes in interest or exchange rates or any general suspension of trading in securities; (iv) any Effect arising from any act of hostilities, terrorism, cyberterrorism or military
actions, war (whether or not declared), sabotage, or any escalation or worsening of the foregoing; (v) national or international calamity, weather conditions, natural or man-made disaster or any other
similar event or epidemic, pandemic (including COVID-19), plagues, other outbreaks of illness or public health events, or any escalation or worsening of any of the foregoing; (vi) the failure of the
Company to meet, or changes to, internal or analysts expectations, projections, forecasts or guidance, or internal or published financial predictions of revenue, earnings, cash flows or cash position or other financial performance measures
(whether made by the Company or third parties); provided that the underlying causes of such failure may be considered in determining whether a Material Adverse Effect has occurred to the extent not otherwise excluded by another exception
herein; (vii) any change after the date hereof in any Legal Requirement (including COVID-19 Measures) or GAAP (or the enforcement or interpretation of any of the foregoing by a Governmental Body); (viii)
any action taken, or failure to take any action, by the Acquired Corporations that is expressly required or prohibited (as applicable) by this Agreement (other than compliance with Section 5.2, except to the extent that
Parent has unreasonably withheld a consent under Section 5.2); (ix) any Transaction Litigation or any demand or Legal Proceeding for appraisal of the fair value of any Shares pursuant to the DGCL in connection herewith, in
each case brought by stockholders of the Company; (x) any determination by, or delay of a determination by, the FDA or any other Governmental Body, or any panel or advisory body empowered or appointed thereby, or any indication that any such
entity, panel or body will make any determination or delay in making any determination, with respect to the development, approvability, manufacturing, shipment, import or export, packaging, labeling, contents of package insert, prescribing
information, risk management profile, chemistry, manufacturing and controls (CMC) matters or pre-approval inspection matters relating to any product candidates of the Acquired Corporations, or any requirement
relating to the results of any pre-clinical or clinical testing being conducted by or on behalf of the Acquired Corporations, including any requirement to conduct further clinical trials or any delayed or
accelerated launch of any product candidates of the Acquired Corporations, in each case, solely to the extent not resulting from or arising out of any noncompliance with Section 5.2(a), any wrongdoing, fraud or intentional
misconduct or misrepresentation, any violation of any applicable Legal Requirement, or any negligent or reckless actions or omissions of the Company or its Representatives or other conduct inconsistent with that of a prudent company operating in the
industries in which the Acquired Corporations operate; (xi) any recommendations, statements or other pronouncements made, 10
published or proposed by professional medical organizations or any Governmental Body or representative thereof, or any panel or advisory body empowered or appointed thereby, relating to any
product candidates of the Acquired Corporations, in each case, solely to the extent not resulting from or arising out of any noncompliance with Section 5.2(a), any wrongdoing, fraud or intentional misconduct or
misrepresentation, any violation of any applicable Legal Requirement, or any negligent or reckless actions or omissions of the Company or its Representatives or other conduct inconsistent with that of a prudent company operating in which the
Acquired Corporations operate; or (xii) any reduction in patient enrollment or failure of patients to participate with respect to clinical trials for any products or product candidates of the Acquired Corporations, in each case, solely to the
extent not resulting from or arising out of any noncompliance with Section 5.2(a), any wrongdoing, fraud or intentional misconduct or misrepresentation, any violation of any applicable Legal Requirement, or any negligent or
reckless actions or omissions of the Company or its Representatives or other conduct inconsistent with that of a prudent company operating in which the Acquired Corporations operate; provided that any Effect referred to in the foregoing
clauses (iii), (iv), (v) and (vii) may be taken into account in determining whether there is, or would reasonably be expected to be, a Material Adverse Effect to the extent such Effect has a disproportionate adverse
effect on the business, results of operations, assets or financial condition of the Acquired Corporations, taken as a whole, as compared to other companies in the industries in which the Acquired Corporations operate. Material Contract. Material Contract is defined in Section 3.9(a) of the Agreement. Material Supplier. Material Supplier is defined in Section 3.26 of the Agreement. Maximum Amount. Maximum Amount is defined in Section 6.5(b) of the Agreement. Meeting Election. Meeting Election is defined in Section 5.4(a) of the Agreement. Merger. Merger is defined in Recital B of the Agreement. Merger Consideration. Merger Consideration is defined in Section 2.5(a)(iv) of the
Agreement. Merger Proxy Statement. Merger Proxy Statement is defined in
Section 5.4(a) of the Agreement. Minimum Condition. Minimum Condition is defined in
Annex I to the Agreement. MHRA. MHRA is defined in Section 3.12(a)
to the Agreement. NASDAQ. NASDAQ shall mean The NASDAQ Global Market. NOL. NOL is defined in Section 3.15(l) of the Agreement. NYBCL. NYBCL shall mean the New York Business Corporation Law, as amended. Offer. Offer is defined in Recital A of the Agreement. 11
Offer Acceptance Time. Offer Acceptance Time is defined in
Section 1.1(h) of the Agreement. Offer Commencement Date. Offer Commencement Date
shall mean the date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act. Offer Conditions. Offer Conditions is defined in Section 1.1(b) of the Agreement. Offer Documents. Offer Documents is defined in Section 1.1(e) of the Agreement. Offer Price. Offer Price is defined in Recital A of the Agreement. Offer Termination. Offer Termination is defined in Section 1.1(d) of the Agreement. Offer to Purchase. Offer to Purchase is defined in Section 1.1(b) of the Agreement. Open Source Software. Open Source Software is defined in Section 3.8(o). Out-bound License. Out-bound
License is defined in Section 3.8(f) of the Agreement. Parent.
Parent is defined in the preamble to the Agreement. Parent 401(k) Plan. Parent 401(k)
Plan is defined in Section 6.3(d). Parent Material Adverse Effect.
Parent Material Adverse Effect shall mean any Effect which, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Parent or Purchaser to consummate the
Transactions on or before the End Date. Parties. Parties shall mean Parent, Purchaser and the Company (it being
understood that Parent and Purchaser shall be deemed a single party). Patent. Patent is defined in the
definition of Intellectual Property Rights. Paying Agent. Paying Agent is defined in
Section 2.6(a) of the Agreement. Payment Fund. Payment Fund is defined in
Section 2.6(a) of the Agreement. Permitted Encumbrance. Permitted Encumbrance shall
mean (a) any Encumbrance for Taxes (x) that are not due and payable or (y) the validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in the applicable
financial statements, in accordance with GAAP, (b) any Encumbrance representing the rights of customers, suppliers and subcontractors in the ordinary course of business consistent with past practice under the terms of any Contracts to which the
relevant Party is a party or under general principles of commercial or government contract law (including mechanics, materialmens, carriers, workmens, warehousemans, repairmens, landlords and similar liens
granted or which arise in the ordinary course of business consistent with past practice), (c) any interest or title of a lessor under leases (other than capital leases) entered into by the Company or its Subsidiaries in the ordinary course of
business consistent with past practice, and (d) in the case of real property, 12
Encumbrances that are easements, rights-of-way, encroachments, restrictions, conditions and other similar
Encumbrances incurred or suffered in the ordinary course of business consistent with past practice and which, individually or in the aggregate, do not and would not materially impair the use (or contemplated use), utility or value of the applicable
real property or otherwise materially impair the present or contemplated business operations at such location. Person.
Person shall mean any individual, Entity or Governmental Body. Personal Information. Personal
Information means any information that (a) identifies or could reasonably be used, alone or in combination with other information held by the Company or any of its Subsidiaries, to identify an individual, or (b) is subject to any
Legal Requirements relating to privacy or Protected Health Information, personally identifiable information, personal data, or similarly defined personal information, or the Acquired Corporations privacy policies. Pre-Closing Period. Pre-Closing
Period is defined in Section 5.1 of the Agreement. Pre-Closing Tax Period. Pre-Closing Tax
Period shall mean (i) any Taxable period or portion thereof ending on or prior to the Closing Date and (ii) the portion of any Straddle Period ending on the Closing Date. Privacy and Security Requirements. Privacy and Security Requirements is defined in
Section 3.8(n). Processing. Processing means, with respect to Personal Information,
the use, collection, receipt, processing, aggregation, storage, adaption, alteration, transfer (including cross-border transfers), retrieval, disclosure, dissemination, combination, erasure, disposal, destruction, or anonymization of such Personal
Information, or any other operation or set of operations that is performed on data or on sets of data, in each case, whether or not by automated means, and any other form of processing, including as defined by or under any applicable Privacy and
Security Requirements. Protected Health Information. Protected Health Information has the meaning ascribed to
it in HIPAA. Purchaser. Purchaser is defined in the preamble to the Agreement. Registered IP. Registered IP shall mean all Intellectual Property Rights that are registered or issued under the
authority of any Governmental Body or internet domain name registrar, including all Patents, registered Copyrights and registered Trademarks, and all applications for any of the foregoing. Regulatory Permit. Regulatory Permit shall mean all import and export permits, INDs, establishment registrations and
product listings, as defined in 21 C.F.R. Part 207, all supplements or amendments thereto, and all comparable Governmental Authorizations. 13
Release. Release shall mean any presence, emission, spill,
seepage, leak, escape, leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal, migration, or release of Hazardous Materials from any source into or upon the environment, including the air (including indoor air), soil,
sediment, improvements, surface water, groundwater, the sewer, septic system, storm drain, publicly owned treatment works, or waste treatment, storage, or disposal systems. Representatives. Representatives shall mean officers, directors, employees, attorneys, accountants, investment
bankers, consultants, agents, financial advisors, other advisors and other representatives. Review Boards. Review
Boards is defined in Section 3.12(a) of the Agreement. Sarbanes-Oxley Act.
Sarbanes-Oxley Act is defined in Section 3.4(a) of the Agreement. Schedule 14D-9. Schedule 14D-9 is defined in Section 1.2(a) of the Agreement. SEC. SEC shall mean the United States Securities and Exchange Commission. Securities Act. Securities Act shall mean the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder. Shares. Shares is defined in Recital A of the Agreement. Specified Agreement. Specified Agreement is defined in Section 8.1(f) of the Agreement.
Specified Governmental Bodies. Specified Governmental Bodies is defined in
Section 3.12(a) of the Agreement. Stockholder List Date. Stockholder List Date is
defined in Section 1.2(b) of the Agreement. Straddle Period. Straddle Period shall
mean any taxable period that includes (but does not end on) the Closing Date. Subsidiary. An Entity shall be deemed to be a
Subsidiary of another Person if such Person directly or indirectly owns, beneficially or of record, (a) an amount of voting securities or other interests in such Entity that is sufficient to enable such Person to elect at
least a majority of the members of such Entitys board of directors or other governing body, or (b) at least 50% of the outstanding equity or financial interests of such Entity. Superior Offer. Superior Offer shall mean a bona fide written Acquisition Proposal that the Board of
Directors determines in good faith after consultation with the Companys financial advisors and outside legal counsel, is reasonably likely to be consummated in accordance with its terms, and, taking into account all legal, regulatory, timing,
and financing aspects (including certainty of closing) of the proposal and the Person making the proposal and other aspects of the Acquisition Proposal that the Board of Directors deems relevant, is more favorable to the Companys stockholders
(solely in their capacity as such) from a financial point of view than the Transactions (including after giving effect to written proposals, if any, made by Parent pursuant to Section 6.1(b)(i)); provided that for
purposes of the definition of Superior Offer, the references to 15% in the definition of Acquisition Proposal shall be deemed to be references to 75%. 14
Surviving Corporation. Surviving Corporation is defined in Recital
B of the Agreement. Takeover Laws. Takeover Laws shall mean any moratorium, control share
acquisition, fair price, supermajority, affiliate transactions, or business combination statute or regulation or other similar state anti-takeover laws and regulations. Tax. Tax shall mean any and all U.S. federal, state, local and non-U.S.
taxes, customs, assessments, levies, duties, tariffs, imposts and other charges and fees of any nature whatsoever imposed by any Governmental Body, including, without limitation, any income (whether on or based upon net income, gross income,
earnings or profits, or otherwise), franchise, excess, windfall or other profits, inventory, capital gains, gross receipts, net proceeds, value-added, occupation, premium, environmental, escheat, abandoned or unclaimed property, disability, real
property, personal property, registration, surtax, estimated, employment, social security, workers compensation, unemployment, national health insurance, excise, occupancy, severance, gift, estate, recording, alternative or add-on minimum, base erosion minimum, ad valorem, turnover, lease, user, transfer, stamp, sales, use, service, property, business, net worth, goods and services, capital stock, wealth, welfare, license, fuel,
natural resources, production, non-resident or other withholding, payroll or other tax, together with any interest, penalty, additions to tax, and any additional amounts imposed with respect thereto, whether
disputed or not. Tax Return. Tax Return shall mean any return (including any information return), report,
statement, notice, declaration, estimate, schedule, form, filing, election, certificate, claim for refund, estimated tax filing, document or other information filed or required to be filed with respect to Taxes, including any schedule, supplement,
or attachment thereto, and including any amendments thereof. Termination Condition. Termination Condition is
defined in Annex I to the Agreement. Termination Fee. Termination Fee is defined in
Section 8.3(c) of the Agreement. Trademarks. Trademarks is defined in the definition
of Intellectual Property Rights. Transaction Litigation. Transaction Litigation shall mean any claim, demand or
Action (including any class action or derivative litigation) asserted, commenced or threatened by, on behalf of or in the name of, against or otherwise involving the Company, the Board of Directors, any committee thereof and/or any of the
Companys directors or officers relating directly or indirectly to this Agreement, the Offer, the Merger or any of the Transactions (including any such claim or Action based on allegations that the Companys entry into this Agreement or
the terms and conditions of this Agreement or any of the Transactions constituted a breach of the fiduciary duties of any member of the Board of Directors or any officer of the Company), or alleging or asserting any misrepresentation or omission in
the Offer Documents or Schedule 14D-9 or any other related SEC filings by the Company. 15
Transactions. Transactions shall mean (a) the execution and
delivery of the Agreement and the Support Agreement and (b) all of the transactions contemplated by the Agreement and/or the Support Agreement, including the Offer and the Merger. Willful Breach. Willful Breach shall mean a material breach of this Agreement that is the consequence of an act or
omission by the breaching party with the actual knowledge that the taking of such act or failure to take such action would be a material breach of this Agreement. 16
ANNEX I CONDITIONS TO THE OFFER The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is
subject to the satisfaction of the conditions set forth in clauses (a) through (h) below. Accordingly, notwithstanding any other provision of the Offer or the Agreement to the contrary, Purchaser shall not be required to
accept for payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any such
rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Agreement, may terminate the Offer: (i) upon termination of the Agreement; and (ii) at any scheduled Expiration Date (subject to any
extensions of the Offer pursuant to Section 1.1(c) of the Agreement), if: (A) the Minimum Condition, the Termination Condition and conditions set forth in clauses (e) and (g) shall not be satisfied
by the Expiration Date; or (B) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: (a) there shall have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any)
beneficially owned by Parent and its Affiliates, represent one more Share than 50% of the total number of Shares outstanding at the time of the expiration of the Offer (the Minimum Condition); provided, however, that
for purposes of determining whether the Minimum Condition has been satisfied, the Parties shall exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been received (as such term is defined in
Section 251(h)(6)(f) of the DGCL); (b) (i) the representations and warranties of the Company set forth in clauses (a) through (d) of
Section 3.3 (Capitalization) of the Agreement shall be true and correct in all respects except for any de minimis inaccuracies as of the date of the Agreement and at and as of the scheduled Expiration Date as if made
on and as of the scheduled Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Sections 3.1 (Due Organization; Subsidiaries), 3.2
(Certificate of Incorporation and Bylaws), 3.20 (Authority; Binding Nature of Agreement), 3.21 (Takeover Laws), and 3.23 (Opinion of Financial Advisor) of the Agreement shall be true and correct in all material respects
(disregarding for this purpose all Material Adverse Effect and materiality qualifications contained in such representations and warranties) as of the date of the Agreement and at and as of the scheduled Expiration Date as if
made on and as of the scheduled Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representations and warranties of the Company set forth in 3.24 (Brokers and Other Advisors) of the Agreement shall be true
and correct in all respects as of the date of the Agreement and at and as of the scheduled Expiration Date as if made on and as of the scheduled Expiration Date; I-1
(iv) the representations and warranties of the Company set forth in
Section 3.5(a)(ii) (No Material Adverse Effect) of the Agreement shall be true and correct in all respects as of the date of the Agreement and at and as of the scheduled Expiration Date as if made on and as of the scheduled
Expiration Date with respect to the earlier period set forth in Section 3.5(a)(ii); (v) the representations and
warranties of the Company set forth in the Agreement (other than those referred to in clauses (i), (ii), (iii) and (iv) above) shall be true and correct (disregarding for this purpose all Material
Adverse Effect and materiality qualifications contained in such representations and warranties) as of the date of the Agreement and at and as of the scheduled Expiration Date as if made on and as of the scheduled Expiration Date
(except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (c) the Company shall
have complied with or performed in all material respects the covenants and agreements it is required to comply with or perform at or prior to the scheduled Expiration Date; (d) since the date of the Agreement, there shall not have been any Effect which, individually or in the aggregate, (i) has had a Material
Adverse Effect that is continuing as of the scheduled Expiration Date or (ii) would reasonably be expected to have a Material Adverse Effect; (e) any waiting period (and any extension thereof) applicable to the Offer or the Merger under the HSR Act shall have expired or been
terminated; (f) Parent and Purchaser shall have received a certificate executed on behalf of the Company by the Companys Chief
Executive Officer and Chief Financial Officer confirming that the conditions set forth in clauses (b), (c) and (d) of this Annex I have been satisfied; (g) there shall not have been issued by any Governmental Body of competent jurisdiction and remain in effect any judgment, temporary
restraining order, preliminary or permanent injunction or other order preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Merger, nor shall any Legal Requirement have been promulgated, entered,
enforced, enacted, issued or deemed applicable to the Offer or the Merger by any Governmental Body which, directly or indirectly, prohibits or makes illegal the acquisition of or payment for Shares pursuant to the Offer or the consummation of the
Merger; and (h) the Agreement shall not have been terminated in accordance with its terms (the Termination Condition).
The foregoing conditions are for the sole benefit of Parent and Purchaser, and (except for the Minimum Condition and the Termination Condition or as
otherwise set forth in the Agreement) may be waived by Parent and Purchaser, in whole or in part at any time and from time to time, in the sole discretion of Parent and Purchaser. The failure by Parent or Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. I-2
ANNEX II FORM OF CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION FIFTH
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CHECKMATE
PHARMACEUTICALS, INC. Checkmate Pharmaceuticals, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the DGCL), does hereby certify as follows: 1. The name of the corporation is Checkmate
Pharmaceuticals, Inc. 2. The Corporation was originally incorporated on July 15, 2015 pursuant to the DGCL. 3. This Fifth Amended and Restated Certificate of Incorporation (this Certificate of Incorporation) was duly adopted in
accordance with the provisions of Sections 228, 242 and 245 of the DGCL. 4. The text of the Fifth Amended and Restated Certificate of
Incorporation of the Corporation is amended hereby and restated to read in its entirety, as follows: ARTICLE I The name of the corporation is Checkmate Pharmaceuticals, Inc. (the Corporation). ARTICLE II The address, including street,
number, city, and county, of the registered office of the Corporation in the State of Delaware is the Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of the registered agent
of the Corporation in the State of Delaware at such address is The Corporation Trust Company. ARTICLE III The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the General
Corporation Law of the State of Delaware. ARTICLE IV Section 1 The Corporation shall be authorized to issue 1,000 shares of capital stock, all of which 1,000 shares shall be shares of common
stock, par value $0.01 per share (the Common Stock). II-3
Section 2 Except as otherwise provided by law, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other purposes. Each share of the Common Stock shall have one vote and the Common Stock shall vote together as a single class. ARTICLE V Any one or more directors may
be removed, with or without cause, by the vote or written consent of the holders of a majority of the issued and outstanding shares of capital stock of the Corporation entitled to be voted in the election of directors. ARTICLE VI In furtherance and not in
limitation of those powers conferred by the DGCL, the board of directors of the Corporation is expressly authorized and empowered to make, alter and repeal the by-laws of the Corporation (the By-Laws) to the fullest extent permitted by the provisions of the DGCL. ARTICLE VII
Meetings of the stockholders shall be held at such place, within or without the State of Delaware as may be designated by, or in the manner provided
in, the By-Laws or, if not so designated, at the registered office of the Corporation in the State of Delaware. Elections of directors need not be by written ballot unless and to the extent that the By-Laws so provide. ARTICLE VIII The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereinafter prescribed by law, and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article. ARTICLE IX Section 1 The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of § 102 of the DGCL, as the same may be amended and supplemented. Section 2 The Corporation shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. II-4
Section 3 Any repeal or modification of the clauses in this Article IX shall be
prospective only and shall not adversely affect any right or protection of a director, officer, agent or other person existing at the time of, or increase the liability of any director or officer of the Corporation with respect to any acts or
omissions of such director occurring prior to, such repeal or modification. ARTICLE X This Fifth Amended and Restated Certificate of Incorporation shall be effective as of the
[ ] day of [ ], [ ]. II-5
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be executed on its behalf this [ ] day of [ ], [ ]. [Signature Page to Fifth Amended and Restated Certificate of Incorporation of
Checkmate Pharmaceuticals, Inc.]
CHECKMATE PHARMACEUTICALS, INC.
By:
/s/ Allan Bash
Name: Allan Bash
Title: Chief Executive Officer
REGENERON PHARMACEUTICALS, INC.
By:
/s/ Nouhad Husseini
Name: Nouhad Husseini
Title: Senior Vice President, Business Development and Corporate Strategy
SCANDINAVIAN ACQUISITION SUB, INC.
By:
/s/ Nouhad Husseini
Name: Nouhad Husseini
Title: Managing Director
CHECKMATE PHARMACEUTICALS, INC.
By:
Name:
Title:
Exhibit 99.1
EXECUTION VERSION
TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this Agreement), dated as of April 18, 2022, is entered into by and among Regeneron Pharmaceuticals, Inc., a New York corporation (Parent), Scandinavian Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (Purchaser), and each of the persons set forth on Schedule A hereto (each, a Stockholder and together with Parent and Purchaser, the Parties and each, a Party). All terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number of Shares set forth opposite such Stockholders name on Schedule A (all such Shares, and any securities convertible into or exercisable or exchangeable or redeemable for Shares, and any additional Shares (and any securities convertible into or exercisable or exchangeable or redeemable for Shares in which such Stockholder acquires record or beneficial ownership on or after the date hereof, whether by purchase, upon exercise or conversion of any securities or otherwise, the Subject Shares);
WHEREAS, Parent, Purchaser and Checkmate Pharmaceuticals, Inc., a Delaware corporation (the Company), have entered into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the Merger Agreement), which provides, among other things, for (a) Purchaser to commence an offer to purchase any (subject to the Minimum Condition) and all of the issued and outstanding Shares of the Company and the Merger, which if the Offer Acceptance Time occurs, shall be effected under Section 251(h) of the DGCL and (b) if an Offer Termination occurs, the Company to convene and hold the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval and to consummate the Merger pursuant to Section 251(c) of the DGCL, each upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the board of directors of the Company (the Board) has, prior to the execution and delivery of this Agreement, (i) unanimously adopted the Merger Agreement, and approved the transactions contemplated thereby, including the Merger, and (ii) the Board has taken all actions so that the restrictions applicable to business combinations contained in Section 203 of the DGCL and any other Takeover Law are, and will be, inapplicable to the execution, delivery and performance of this Agreement and the Merger Agreement and to the consummation of the Offer, the Merger and the other Transactions (the 203 Approval); and
WHEREAS, as a condition and inducement to the willingness of Parent and Purchaser to enter into the Merger Agreement, each Stockholder, severally and not jointly, and on such Stockholders own account with respect to the Subject Shares, has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
AGREEMENT TO TENDER AND VOTE
1.1. Agreement to Tender. Subject to the terms of this Agreement and the 203 Approval (which has been obtained prior to the execution of this Agreement), each Stockholder agrees to tender or cause to be tendered in the Offer all of such Stockholders Subject Shares (other than Company Options that are not exercised during the term of this Agreement) pursuant to and in accordance with the terms of the Offer, free and clear of all Encumbrances except for Permitted Encumbrances (as defined below). Without limiting the generality of the foregoing, as promptly as practicable after, but in no event later than ten (10) business days after, the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer, each Stockholder shall deliver or cause to be delivered pursuant to the terms of the Offer (a) a letter of transmittal with respect to all of such Stockholders Subject Shares complying with the terms of the Offer, (b) a certificate representing all such Subject Shares or an agents message (or such other evidence, if any, of transfer as the Depository Agent may reasonably request) in the case of a book-entry share of any uncertificated Subject Shares, and (c) all other documents or instruments, to the extent applicable, required to be delivered by other Company stockholders pursuant to the terms of the Offer in order to effect the valid tender of the Subject Shares (it being understood that this sentence shall not apply to Company Options that are not exercised during the term of this Agreement). Each Stockholder agrees that, once any of such Stockholders Subject Shares are tendered, such Stockholder will not withdraw such Subject Shares from the Offer, unless and until this Agreement shall have been validly terminated in accordance with Section 5.2. For clarity, no Stockholder shall be required to exercise any unexercised Company Options held by such Stockholder in order to comply with any provision of this Agreement, but any Shares that result from the settlement of any Company Option exercised by Stockholder and settled during the term of this Agreement shall immediately upon such settlement become subject to those provisions of this Agreement that are not otherwise applicable to unexercised Company Options.
1.2. Agreement to Vote. Subject to the terms of this Agreement and the 203 Approval (which has been obtained prior to the execution of this Agreement), each Stockholder hereby irrevocably and unconditionally agrees that, during the time this Agreement is in effect, at any annual or special meeting of the stockholders of the Company, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written consent of the stockholders of the Company, such Stockholder shall, in each case to the fullest extent that such Stockholders Subject Shares are entitled to vote thereon: (a) appear at each such meeting or otherwise cause all such Subject Shares to be counted as present thereat for purposes of determining a quorum; and (b) be present (in person or by proxy) and vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all of its Subject Shares (i) in favor of (a) the adoption of the Merger Agreement and the approval of the Merger and the other Transactions, (b) any other matters necessary or presented or proposed for the Transactions to be timely consummated and (c) any proposal to adjourn or postpone the Company Stockholder Meeting or such other meeting of the Companys stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement; (ii) against any action, agreement or transaction that would reasonably be expected to (A) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of any Stockholder contained in this Agreement or (B) result in any of the conditions set forth in Section 7 or Annex I of the Merger Agreement not being timely satisfied; (iii) against any
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change in the Board (unless such proposed change in the Board was proposed by the Board and is not in connection with or in support of any actual or potential Acquisition Proposal); and (iv) against any Acquisition Proposal and against any other action, agreement or transaction involving the Company that is intended, or would reasonably be expected, to materially impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Offer or the Merger or the other Transactions. Subject to the proxy granted under Section 1.3, until the Subject Shares are accepted for payment in the Offer, each Stockholder shall retain at all times the right to vote the Subject Shares in such Stockholders sole discretion, and without any other limitation, on any matters other than those set forth in this Section 1.2 that are at any time or from time to time presented for consideration to the Companys stockholders generally. The obligations of each Stockholder specified in this Section 1.2 shall apply whether or not (A) the Offer or the Merger or any action described above is recommended by the Board or (B) there has been any Company Adverse Recommendation Change. Except as set forth in this Section 1.2, nothing in this Agreement shall limit the right of any Stockholder to vote in favor of, against or abstain with respect to any matter presented to the stockholders of the Company.
1.3. Irrevocable Proxy. Solely with respect to the matters described in Section 1.2, for so long as this Agreement has not been validly terminated in accordance with its terms, each Stockholder hereby irrevocably appoints Parent as its attorney and proxy with full power of substitution and resubstitution, to the full extent of such Stockholders voting rights with respect to all such Stockholders Subject Shares (which proxy is irrevocable and which appointment is coupled with an interest, including for purposes of Section 212 of the Delaware General Corporation Law) to vote, and to execute written consents with respect to, all such Stockholders Subject Shares solely on the matters described in Section 1.2, and in accordance therewith. The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive, as applicable, the dissolution, bankruptcy, death or incapacity of such Stockholder. Each Stockholder agrees to execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the proxy contained herein. Such proxy shall automatically and without further action be revoked, terminated and of no further force or effect, immediately upon the valid termination of this Agreement in accordance with its terms. Parent may terminate this proxy with respect to a Stockholder at any time at its sole election by written notice provided to such Stockholder. Except as expressly set forth herein, Parent and Purchaser acknowledge (i) that the proxy and power of attorney granted hereby shall not be effective for any other purpose, and (ii) such proxy and power of attorney shall not limit the rights of any Stockholder to vote or exercise its rights to consent in favor of or against, or abstain with respect to, any matter presented to the Companys stockholders that is not subject to the proxy and power of attorney granted to Parent in respect of the Subject Shares pursuant to this Section 1.3.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder represents and warrants, on its own account with respect to such Stockholders Subject Shares, to Parent and Purchaser as to such Stockholder on a several and not joint basis, that:
2.1. Authorization; Binding Agreement. If such Stockholder is not an individual, such Stockholder is duly organized and validly existing in good standing under the laws of the jurisdiction in which it is incorporated or constituted and the consummation of the transactions contemplated hereby are within such Stockholders entity powers and have been duly authorized by all necessary entity actions on the part of such Stockholder, and such Stockholder has full power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. If such Stockholder is an individual, such Stockholder has full legal capacity, right and authority to execute and deliver this Agreement and to perform such Stockholders obligations hereunder. This Agreement has been duly and validly executed and delivered by such Stockholder and constitutes a valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights, and by general equitable principles. If such Stockholder is married, and any of the Subject Shares of such Stockholder constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, a spousal consent substantially in the form attached as Exhibit A hereto has been duly executed and delivered by such Stockholders spouse and, assuming the due authorization, execution and delivery hereof by Parent and Purchaser, is enforceable against such Stockholders spouse in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights, and by general equitable principles.
2.2. Non-Contravention. Neither the execution and delivery of this Agreement by such Stockholder nor the consummation of the transactions contemplated hereby nor compliance by such Stockholder with any provisions herein will (a) if such Stockholder is not an individual, violate, contravene or conflict with or result in any breach of any provision of the certificate of incorporation or bylaws (or other similar governing documents) of such Stockholder, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body on the part of such Stockholder, except for compliance with the applicable requirements of the Securities Act, the Exchange Act or any other United States or federal securities laws and the rules and regulations promulgated thereunder, (c) violate, conflict with, or result in a breach of any provisions of, or require any consent, waiver or approval or result in a default or loss of a benefit (or give rise to any right of termination, cancellation, modification or acceleration or any event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under any of the terms, conditions or provisions of any Contract or other legally binding instrument or obligation to which such Stockholder is a party or by which such Stockholder or any of its assets may be bound, (d) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Encumbrance on any assets (including Subject Shares) of such Stockholder (other than one created by Parent or Purchaser), or (e) violate any Legal Requirement applicable to such Stockholder or by which any of its assets (including Subject Shares) are bound, except as would not, in the case of each of clauses (c), (d) and (e), reasonably be expected to have, individually or in the aggregate, a material adverse effect on such Stockholders ability to timely perform its obligations under this Agreement. Other than the filings and reports pursuant to and in compliance with the Exchange Act, no filings, notifications, approvals or other consents are required to be obtained by such Stockholder from, or to be given by such Stockholder to, or be made by such Stockholder with, any Governmental Body in connection with the execution, delivery and performance by such Stockholder of this Agreement.
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2.3. Ownership of Subject Shares; Total Shares. As of the date hereof, such Stockholder is and (except with respect to any Subject Shares Transferred in accordance with Section 4.1 or accepted for payment pursuant to the Offer) at all times during the term of this Agreement will be, the sole record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of all such Stockholders Subject Shares (together with, in the case of an individual Stockholder that is married, Stockholders spouse to the extent that the Subject Shares and Company Options constitute community property under applicable Legal Requirements) and has good and marketable title to all such Subject Shares free and clear of any Encumbrance, except for (i) any such Encumbrance that may be imposed pursuant to this Agreement and (ii) transfer restrictions of general applicability as may be provided under the Securities Act or applicable securities laws (collectively, Permitted Encumbrances). The Subject Shares listed on Schedule A opposite such Stockholders name constitute all of the shares of voting stock of the Company of which such Stockholder is the owner (as such terms are defined in Section 203 of the Delaware General Corporation Law) as of the time that the Board approved the Merger Agreement. Without limiting the foregoing, as of the date hereof, other than the Subject Shares listed on Schedule A opposite such Stockholders name (including any Company Options), such Stockholder does not own beneficially or of record, and does not have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any Shares (or any securities convertible into or exercisable or exchangeable or redeemable for Shares) or any interest therein.
2.4. Voting Power. Such Stockholder has full voting power with respect to all such Stockholders Subject Shares, and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all such Stockholders Subject Shares. None of such Stockholders Subject Shares are subject to any stockholders agreement, proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Shares, except as provided hereunder. Such Stockholder has not entered into any Contract that is inconsistent with, or would in any way restrict, limit or interfere with the performance of such Stockholders obligations hereunder.
2.5. Reliance. Such Stockholder understands and acknowledges that Parent and Purchaser are entering into the Merger Agreement in reliance upon such Stockholders execution, delivery and performance of this Agreement.
2.6. Absence of Litigation. With respect to such Stockholder, as of the date hereof, there is no Legal Proceeding pending against, or, to the actual knowledge of such Stockholder, threatened in writing against such Stockholder or any of such Stockholders assets (including Shares beneficially owned by such Stockholder) before or by any Governmental Body that would reasonably be expected to prevent or materially delay or impair the consummation by such Stockholder of the transactions contemplated by this Agreement or otherwise materially impair such Stockholders ability to perform its obligations hereunder.
2.7. Brokers. No broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage, finders, financial advisors or other similar fee or commission from the Company in connection with the transactions contemplated hereby based upon arrangements made by such Stockholder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Purchaser represent and warrant to the Stockholders that:
3.1. Organization and Qualification. Each of Parent and Purchaser is a corporation or other Entity duly organized, validly existing and in good standing (if recognized in the applicable jurisdiction of organization) under the laws of its jurisdiction of organization and has all necessary power and authority: (a) to conduct its business in the manner in which its business is currently being conducted; and (b) to own and use its assets in the manner in which its assets are currently owned and used, except where the failure does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Parents or Purchasers ability to timely perform its obligations under this Agreement. Either Parent or a wholly owned Subsidiary of Parent owns beneficially and of record all of the outstanding capital stock of Purchaser, free and clear of all Encumbrances, except for transfer restrictions of general applicability as may be provided under the Securities Act or applicable securities laws.
3.2. Authority for this Agreement. Each of Parent and Purchaser has the corporate power and authority, and has taken all corporate action necessary, to execute and deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and Purchaser have been duly and validly authorized by all necessary entity action on the part of each of Parent and Purchaser, and no other entity proceedings on the part of Parent and Purchaser are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by Parent and Purchaser, and assuming due authorization, execution and delivery by the Company, this Agreement constitutes the legal, valid and binding obligation of Parent and Purchaser and is enforceable against Parent and Purchaser in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights, and by general equitable principles.
3.3. Non-Contravention. None of the execution and delivery by each of Parent and Purchaser of this Agreement, the performance by each of Parent and Purchaser of its obligations hereunder or the consummation by each of Parent and Purchaser of the transactions contemplated hereby will (i) result in a violation or breach of any agreement to which each of Parent and Purchaser is a party or by which each of Parent and Purchaser may be bound, (ii) violate any law or order applicable to each of Parent and Purchaser or (iii) violate any constituent or organizational documents of each of Parent and Purchaser, except as would not, in the case of each of clauses (a) and (b), reasonably be expected to have, individually or in the aggregate, a material adverse effect on Parents or Purchasers ability to perform its obligations under this Agreement.
3.4. Absence of Litigation. With respect to each of Parent and Purchaser, as of the date hereof, there is no Legal Proceeding pending against, or, to the actual knowledge of Parent or Purchaser, threatened in writing against Parent or Purchaser before or by any Governmental Body that would reasonably be expected to prevent or materially delay or impair the consummation by Parent or Purchaser of the transactions contemplated by this Agreement or otherwise materially impair the ability of Parent or Purchaser to perform its obligations hereunder.
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ARTICLE IV
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees that until the valid termination of this Agreement in accordance with Section 5.2:
4.1. No Transfer; No Inconsistent Arrangements. Except as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is validly terminated in accordance with Section 5.2, such Stockholder shall not, directly or indirectly, without the prior written consent of Parent, (a) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholders Subject Shares, (b) transfer, sell, assign, gift, hedge, lend, pledge or otherwise dispose of (including by sale or merger, by tendering into any tender or exchange offer, by testamentary disposition, by liquidation or dissolution, by dividend or distribution, by operation of Law or otherwise), either voluntarily or involuntarily, or enter into any derivative arrangement with respect to (collectively, Transfer), any of such Stockholders Subject Shares, or any right or interest therein (or consent to any of the foregoing), (c) enter into any Contract with respect to any Transfer of such Stockholders Subject Shares or any interest therein, (d) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholders Subject Shares, (e) deposit or permit the deposit of any of such Stockholders Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholders Subject Shares, (f) enter into any Contract or otherwise take any other action that is inconsistent with, or would in any way restrict, limit or interfere with the performance of such Stockholders obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect as though made on the date of such Contract or action or (g) knowingly approve or consent to any of the forgoing. Any action taken in violation of the foregoing sentence shall be null and void ab initio. If any involuntary Transfer of any of such Stockholders Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholders trustee in any bankruptcy, or a sale to a purchaser at any creditors or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Subject Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer Subject Shares (including Company Options and any shares of Company Common Stock underlying such Company Options) (i) to any member of such Stockholders immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholders immediate family, the sole trustees of which are such Stockholder or any member of such Stockholders immediate family, (iii) by will or under the laws of intestacy upon the death of such Stockholder, (iv) to any charitable organization or (v) by effecting a net exercise of a Company Option in which the Company holds back shares of Company Common Stock otherwise issuable (but not the sale of already-owned shares of Company Common Stock) either to pay the exercise price upon the exercise of a Company Option or to satisfy the Stockholders tax withholding obligation upon the exercise of a Company Option, in each case as permitted pursuant to the terms of any Company Equity Plan and (y) any Stockholder that is an entity may Transfer Subject Shares to any Affiliate of such Stockholder;
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provided, that (1) a Transfer referred to in clauses (x) or (y) (other than clause (x)(v)) of this sentence shall be permitted only if all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon the completion of such Transfer and (2) the transferee of the Transfer referred to in clauses (x) or (y) shall have, prior to any such Transfer, executed and delivered to Parent and Purchaser a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a Stockholder for all purposes of this Agreement. Nothing herein will restrict the ability of Stockholder to exercise any Company Options.
4.2. No Exercise of Appraisal Rights. Such Stockholder forever waives and agrees not to exercise any appraisal rights or dissenters rights in respect of such Stockholders Subject Shares that may arise in connection with the Offer and the Merger.
4.3. Documentation and Information. Such Stockholder shall not make any public announcement regarding this Agreement and the transactions contemplated hereby without the prior written consent of Parent (such consent not to be unreasonably withheld with respect to statements made in support of the Transactions), except as may be required by applicable Legal Requirements (provided that reasonable notice of any such disclosure will be provided to Parent and such Stockholder shall reasonably consult with Parent and Purchaser with respect to such disclosure). Such Stockholder consents to and hereby authorizes Parent and Purchaser to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that Parent or Purchaser reasonably determines to be necessary in connection with the Offer, the Company Stockholder Meeting, the Merger and any Transactions, such Stockholders identity and ownership of the Subject Shares, the existence of this Agreement and the nature of such Stockholders commitments and obligations under this Agreement, and such Stockholder acknowledges that Parent and Purchaser may (provided that the Stockholder shall have a reasonable opportunity to review and approve that portion of any disclosure that identifies the Stockholder by name prior to any such filing, such approval not to be unreasonably withheld, conditioned or delayed), file this Agreement or a form hereof with the SEC or any other Governmental Body. Such Stockholder agrees to promptly give Parent any information it may reasonably request for the preparation of any such disclosure documents, and such Stockholder agrees to promptly notify Parent of any required corrections with respect to any written information supplied by such Stockholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.
4.4. Adjustments. In the event of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company affecting the Subject Shares, the terms of this Agreement shall apply to the resulting securities and the term Subject Shares shall be deemed to refer to and include such securities.
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4.5. Waiver of Certain Actions. Each Stockholder hereby agrees not to commence or participate in, assist or knowingly encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any Legal Proceeding, derivative or otherwise, against Parent, Purchaser, the Company or any of their respective successors or their affiliates and each of their successors and assigns and their respective directors and officers (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Offer Acceptance Time, the Company Stockholder Meeting or the Closing), except to enforce the terms thereof or (b) alleging a breach of any duty of the Board in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby or hereby.
4.6. No Solicitation. Each Stockholder agrees that it shall not, and shall cause its Affiliates and its and their respective Representatives not to, directly or indirectly, take any action that would violate Section 5.3 or 6.1 of the Merger Agreement if such action were taken by the Company (or cause any Acquired Corporation or any of its Representatives to violate Section 5.3 or 6.1 of the Merger Agreement). Each Stockholder shall, and cause its Affiliates and its and their respective Representatives to, immediately cease any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof. If (a) the Board has received a bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made or renewed on or after the date of the Merger Agreement and did not result from or arise out of a breach of this Section 4.6 or Section 5.3 or 6.1 of the Merger Agreement, (b) the Board determines in good faith (i) after consultation with the Companys financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Offer, and (ii) after consultation with the Companys outside legal counsel, that the failure to take such action described in clauses (A) and (B) of Section 5.3(c) of the Merger Agreement would be inconsistent with the fiduciary duties of the Board to the Companys stockholders under applicable Legal Requirements and (c) the Board is negotiating a possible transaction with such Person in accordance with Section 5.3 and 6.1 of the Merger Agreement, then (A) each Stockholder shall be entitled to negotiate with the Person making such Acquisition Proposal with respect to entering into an agreement in support thereof and (B) the Stockholder shall be entitled to enter into such a support agreement with a Person making a Superior Proposal simultaneously with the execution and delivery of a Specified Agreement by the Company entered into as and to the extent permitted by the Merger Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand, (b) one (1) business day after being sent for next business day delivery, fees prepaid, via a reputable nationwide overnight courier service, (c) if sent by email or facsimile transmission, upon transmission (as long as no notice of failure of delivery is received); provided that in each case the notice or other communication is sent to the physical address, email address or facsimile number set forth beneath the name of such Party below (or to such other physical address, email address or facsimile number as such Party shall have specified in a written notice given to the other Parties):
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if to Parent or Purchaser:
Regeneron Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, New York 10591
Attention: Joseph J. LaRosa
Executive Vice President, General Counsel and Secretary
Email: [Omitted]
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew R. Brownstein
Victor Goldfeld
John L. Robinson
Email: ARBrownstein@wlrk.com
VGoldfeld@wlrk.com
JLRobinson@wlrk.com
if to any Stockholder (the notice address set forth on such Stockholders signature page)
with a copy (which shall not constitute notice) to:
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02110
Attention: Stuart M. Cable
Mitchell S. Bloom
Robert Masella
Andrew H. Goodman
Email: SCable@goodwinlaw.com
MBloom@goodwinlaw.com
RMasella@goodwinlaw.com
AGoodman@goodwinlaw.com
5.2. Termination. This Agreement shall terminate automatically with respect to a Stockholder, without any notice or other action by any Person, upon the first to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Effective Time, (c) any amendment to the Merger Agreement or the Offer is effected without Stockholders written
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consent that decreases the amount, or changes the form, of consideration payable to all stockholders of the Company pursuant to the terms of the Merger Agreement or (d) the mutual written consent of Parent and such Stockholder. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that (x) nothing set forth in this Section 5.2 shall relieve any party from liability for any breach of this Agreement prior to termination hereof and (y) the provisions of this Article V shall survive any valid termination of this Agreement in accordance with Section 5.2.
5.3. Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. At any time prior to the Effective Time, Parent and Purchaser, on the one hand, and each Stockholder, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other, (b) waive any breach of the representations and warranties of the other contained herein or in any document delivered pursuant hereto or (c) waive compliance by the other with any of the agreements or covenants contained herein. Any such extension or waiver shall be valid only if is expressly set forth in a written instrument duly executed and delivered on behalf of the Party or Parties to be bound thereby, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
5.4. Expenses. All fees and expenses incurred in connection with this Agreement shall be paid by the Party incurring such expenses, whether or not the Offer and Merger are consummated.
5.5. Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the rights hereunder may be assigned by a Party without the prior written consent of the other Parties, and any attempted assignment of this Agreement or any of such rights without such consent shall be void and of no effect.
5.6. Entire Agreement; Counterparts. This Agreement, together with Schedule A, and the other documents and certificates delivered pursuant hereto, constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the Parties, with respect to the subject matter hereof. This Agreement may be executed in one or more counterparts, including by facsimile or by email with .pdf attachments, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.
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5.7. Enforcement of the Agreement.
(a) Each Stockholder agrees that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that such Stockholder does not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Each Stockholder acknowledges and agrees that (i) Parent and Purchaser shall be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 5.8(a) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (ii) the right of specific performance is an integral part of this Agreement and the transactions contemplated hereby and without that right, the Parties would not have entered into this Agreement. Each Stockholder agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Each Stockholder acknowledges and agrees that, in seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 5.7, Parent and Purchaser shall not be required to provide any bond or other security in connection with any such order or injunction.
(b) Each Stockholder acknowledges and agrees that time is of the essence and that the Parties would suffer ongoing irreparable injury for so long as any provision of this Agreement is not performed in accordance with its specific terms (but subject to any time period allotted for such performance by such terms). It is accordingly agreed that, as to any Legal Proceedings in which Parent or Purchaser seeks specific performance or other equitable relief pursuant to Section 5.7(a), each Stockholder shall use its commercially reasonable efforts to seek an expedited schedule for such proceedings and shall not oppose Parents or Purchasers request for expedited proceedings.
5.8. Jurisdiction; Waiver of Jury Trial.
(a) In any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby: (i) each of the Purchaser and each Stockholder irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Chancery Court of the State of Delaware and any state appellate court therefrom or, if (but only if) such court lacks subject matter jurisdiction, the United States District Court sitting in New Castle County in the State of Delaware and any appellate court therefrom (collectively, the Delaware Courts); and (ii) each of the Purchaser and each Stockholder irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 5.1; provided that nothing in this Section 5.8(a) shall affect the right of any Party to serve legal process in any other manner permitted by applicable Legal Requirements. Each of the Purchaser and each Stockholder irrevocably and unconditionally (1) agrees not to commence any such action or proceeding except in the Delaware Courts, (2) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Delaware Courts, (3) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the jurisdiction or laying of venue of any such action or proceeding in the Delaware Courts and (4) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Delaware
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Courts. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements; provided, however, that nothing in the foregoing shall restrict any Partys rights to seek any post-judgment relief regarding, or any appeal from, such final trial court judgment.
(b) EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY (I) MAKES THIS WAIVER VOLUNTARILY AND (II) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 5.8(b).
5.9. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
5.10. Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties and their permitted assigns) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.11. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
5.12. Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
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(b) The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words include and including, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words without limitation.
(d) Except as otherwise indicated, all references in this Agreement to Sections, Exhibits, Schedules or Annexes are intended to refer to Sections of this Agreement and Exhibits, Schedules or Annexes to this Agreement.
(e) The bold-faced, underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
(f) All references to cash, Dollars or $ are to United States Dollars, unless expressly stated otherwise.
5.13. Further Assurances. Upon the reasonable request of Parent, each Stockholder will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable, to perform its obligations under this Agreement.
5.14. Capacity as Stockholder. Each Stockholder signs this Agreement solely in such Stockholders capacity as a stockholder of the Company, and not, if applicable, in such Stockholders capacity as a director or officer of the Company. Nothing herein shall in any way restrict a Stockholder that is director or officer of the Company in the taking of any actions (or failure to act) in his or her capacity as a director or officer of the Company if such action (or failure to act) would be inconsistent with the exercise of his or her fiduciary duties as a director or officer of the Company.
5.15. Representations and Warranties. The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Effective time.
5.16. No Agreement Until Executed. This Agreement shall not be effective unless and until (i) the Merger Agreement is executed by all parties thereto and (ii) this Agreement is executed by all parties hereto.
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5.17. Stockholder Obligation Several and Not Joint. The obligations of each Stockholder hereunder shall be several and not joint, and no Stockholder shall be liable for any breach of the terms of this Agreement by any other Stockholder. Further, Parent and Purchaser agree that no Stockholder will be liable for claims, losses, damages, liabilities or other obligations of, or incurred by, the Company resulting from the Companys breach of the Merger Agreement except to the extent that breach of such Stockholders obligations hereunder was also involved in such breach by the Company
5.18. No Ownership Interest. Except as otherwise provided herein, nothing contained in this Agreement shall be deemed to vest in Parent or Purchaser any direct or indirect ownership or incidence of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Stockholder, and neither Parent nor Purchaser shall have any authority to manage, direct, restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholder in the voting of any of the Shares, except as otherwise provided herein.
5.19. Definitions. For purposes of this Agreement, business day means any day except (i) a Saturday or a Sunday, (ii) a day on which banks in the City of New York are authorized or required by Legal Requirements to be closed, or (iii) a day on which the principal offices of the SEC in Washington, D.C. are not open to accept filings.
[Signature Pages Follow]
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The parties are executing this Agreement on the date set forth in the introductory clause.
REGENERON PHARMACEUTICALS, INC. | ||
By: | /s/ Nouhad Husseini | |
Name: Nouhad Husseini | ||
Title: Senior Vice President, Business | ||
Development and Corporate Strategy |
SCANDINAVIAN ACQUISITION SUB, INC. | ||
By: | /s/ Nouhad Husseini | |
Name: Nouhad Husseini | ||
Title: Managing Director |
[Signature Page to Tender and Support Agreement]
STOCKHOLDER |
ARTHUR KRIEG |
/s/ Arthur Krieg |
Address: [Omitted] |
[Signature Page to Tender and Support Agreement]
STOCKHOLDER | ||
DECHENG CAPITAL CHINA LIFE SCIENCES USD FUND III LP | ||
By: its General Partner, Decheng Capital Management III (Cayman), LLC | ||
By: | /s/ Xiangmin Cui | |
Name: Xiangmin Cui | ||
Title: Managing Director | ||
Address: [Omitted] |
[Signature Page to Tender and Support Agreement]
Schedule A Name of Stockholder Arthur Krieg Decheng Capital China Life Sciences USD Fund III LP [Schedule A to Tender
and Support Agreement]
EXHIBIT A FORM OF SPOUSAL CONSENT The
undersigned represents that the undersigned is the spouse of Arthur Krieg (the Stockholder), that the undersigned has read and understands the contents and terms of the Tender and Support Agreement (the
Agreement), entered into as of April 18, 2022, by and among Regeneron Pharmaceuticals, Inc., a New York corporation (Parent), Scandinavian Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (Purchaser), and the undersigneds spouse (the Stockholder). All capitalized terms that are used but not defined herein shall have the respective meanings ascribed to them in the
Agreement. The undersigned hereby agrees that the interest of Stockholder in all property which is the subject of such Agreement shall be irrevocably bound by the terms of such Agreement and by any amendment, modification, waiver or termination
signed by Stockholder. The undersigned further agrees that the undersigneds community property interest in all property which is the subject of such Agreement shall be irrevocably bound by the terms of such Agreement, and that such Agreement
shall be binding on the executors, administrators, heirs and assigns of the undersigned. The undersigned further authorizes Stockholder to amend, modify or terminate such Agreement, or waive any rights thereunder, and that each such amendment,
modification, waiver or termination signed by Stockholder shall be binding on the community property interest of undersigned in all property which is the subject of such Agreement and on the executors, administrators, heirs and assigns of the
undersigned, each as fully as if the undersigned had signed such amendment, modification, waiver or termination. Dated: April 18, 2022 SPOUSE: DEBORAH KRIEG Signature: /s/ Deborah Krieg Print name: Deborah Krieg [Signature Page to
Spousal Consent to Tender and Support Agreement]
Number of Shares
Number of Company Stock
Options
833,001
183,080
1,333,254
0