Panbela Therapeutics, Inc. (Form: DEF 14A, Received: 04/29/2022 17:26:57)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

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☑	Definitive Proxy Statement

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☐	Soliciting Material under § 240.14a-12

Panbela Therapeutics, Inc.

(Name of Registrant as Specified In Its Charter)

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April 29, 2022

Dear Stockholder:

The Board of Directors of Panbela Therapeutics, Inc. joins us in extending an invitation to attend our 2022 Annual Meeting of Stockholders (the “Annual Meeting”), to be held on June 8, 2022, at Element Bloomington, 2400 East 82^nd Street, Bloomington, Minnesota 55425, commencing at 2:30 p.m. local time. A full set of proxy materials will be mailed to each stockholder on or about April 29, 2022.

In addition to the customary proposals to elect directors and ratify the selection of our independent registered public accounting firm, you are being asked to approve of the issuance of shares of common stock as partial consideration for our acquisition of Cancer Prevention Pharmaceuticals, Inc. pursuant to the previously announced agreement and plan of merger dated February 21, 2022 (the “Share Issuance Proposal”). We believe the acquisition will provide significant value to our company and its stockholders. Please note, we are asking stockholders to approve the Share Issuance Proposal in order to comply with Listing Rule 5635 of The Nasdaq Stock Market LLC. We are not asking our stockholders to approve of the mergers or the merger agreement.

It is important that your shares be represented at the Annual Meeting whether or not you plan to attend in person. Accordingly, please vote by any available means as soon as possible. Even if you plan to attend the Annual Meeting, please vote promptly to ensure your shares are represented.

Anyone who attends the meeting in person will need to comply with state and local safety guidelines for attending such events. Accordingly, please note that you may be required to wear a self-provided mask and agree to practice social distancing to access the venue and attend the meeting. If you are experiencing any symptoms of COVID-19 or you suspect or believe you have COVID-19 or were exposed to COVID-19 in the two weeks leading up to the meeting, then we ask that you please do not attempt to attend the meeting in person.

On behalf of the Board of Directors and management, it is our pleasure to express our appreciation for your continued support.

We hope that you will be able to attend the Annual Meeting.

Very truly yours,

/s/ Michael T. Cullen

Michael T. Cullen, M.D., M.B.A.
Chair of the Board

/s/ Jennifer K. Simpson

Jennifer K. Simpson Ph.D., MSN, CRNP
President and Chief Executive Officer

PANBELA THERAPEUTICS, INC.
712 Vista Boulevard #305
Waconia, Minnesota 55387

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 8, 2022

To the Stockholders of Panbela Therapeutics, Inc.:

Notice is hereby given that the 2022 Annual Meeting of Stockholders (the “Annual Meeting”) of Panbela Therapeutics, Inc., a Delaware corporation, will be held on June 8, 2022, at Element Bloomington, 2400 East 82^nd Street, Bloomington, Minnesota 55425, commencing at 2:30 p.m. local time, for the following purposes:

Elect two Class III directors;

Ratify the selection of Cherry Bekaert LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022;

Approve, for purposes of complying with Nasdaq Listing Rule 5635(a), the issuance of shares of common stock as partial consideration for our acquisition of Cancer Prevention Pharmaceuticals, Inc.;

Approve the adjournment or postponement of the Annual Meeting to solicit additional proxies if there are insufficient votes at the time of the Annual Meeting to approve proposal 3; and

to act on any other matters that may properly come before the Annual Meeting and any adjournment or postponement thereof.

Only stockholders of record at the close of business on April 29, 2022, the record date for the meeting set by the Board of Directors, are entitled to notice of the Annual Meeting and may vote at the Annual Meeting or any adjournment(s) or postponement(s) thereof.

By Order of the Board of Directors,

/s/ Susan Horvath

Susan Horvath
Vice President of Finance, Chief Financial Officer,

Treasurer and Secretary

YOUR VOTE IS IMPORTANT

Whether or not you plan to attend the Annual Meeting, we urge you to vote as soon as possible. If you attend the meeting, you may vote your shares in person if you wish, whether or not you submit a proxy in advance of the meeting.

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE STOCKHOLDER MEETING TO BE HELD ON JUNE 8, 2022

Our Proxy Statement for the 2022 Annual Meeting of Stockholders and our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, are available at https://web.viewproxy.com/panbela/2022.

TABLE OF CONTENTS

QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING AND VOTING	1
SUMMARY OF THE SHARE ISSUANCE	5
PROPOSAL 1: ELECTION OF CLASS III DIRECTORS	8
CORPORATE GOVERNANCE	10
AUDIT COMMITTEE REPORT	12
DIRECTOR COMPENSATION	15
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT	16
EXECUTIVE COMPENSATION	17
PROPOSAL 2: RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM	20
PROPOSAL 3: APPROVAL OF ISSUANCE OF COMMON STOCK IN CONNECTION WITH ACQUISITION	21
INFORMATION ABOUT THE MERGERS	22
INFORMATION ABOUT THE MERGER AGREEMENT	32
RISK FACTORS RELATED TO THE MERGERS, MERGER AGREEMENT	34
CANCER PREVENTION PHARMACEUTICALS, INC. FINANCIAL INFORMATION	35
PANBELA FINANCIAL INFORMATION	41
PROPOSAL 4: ADJOURNMENT OF THE MEETING	42
DELINQUENT SECTION 16(a) REPORTS	43
OTHER MATTERS	43
SUBMISSION OF STOCKHOLDER PROPOSALS AND NOMINATIONS	43
HOUSEHOLDING	43
WHERE YOU CAN FIND MORE INFORMATION	43
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE	43
ADDITIONAL INFORMATION	44
APPENDIX A: AGREEMENT AND PLAN OF MERGER
APPENDIX B: FINANCIAL ADVISOR OPINION
APPENDIX C: AUDITED FINANCIAL INFORMATION
APPENDIX D: UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In some cases, you can identify forward-looking statements by the following words: “anticipate,” “assume,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “ongoing,” “plan,” “potential,” “predict,” “project,” “should,” “will,” “would,” or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these words. Forward-looking statements are not a guarantee of future performance or results and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved. Forward-looking statements are based on information available at the time the statements are made and involve known and unknown risks, uncertainties and other factors that may cause our results, levels of activity, performance or achievements to be materially different from the information expressed or implied by the forward-looking statements in this proxy statement. These factors include:

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our lack of diversification and the corresponding risk of an investment in our company;

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potential deterioration of our financial condition and results due to failure to diversify;

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our ability to successfully complete acquisitions and integrate operations for new product candidates;

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our ability to obtain additional capital, on acceptable terms or at all, to implement our business plan;

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final results of our Phase I clinical trial;

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progress and success of our randomized Phase II/III clinical trial;

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our ability to demonstrate safety and effectiveness of our product candidate;

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our ability to obtain regulatory approvals for our product candidate in the United States, the European Union, or other international markets;

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the market acceptance and future sales of our product candidate;

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the cost and delays in product development that may result from changes in regulatory oversight applicable to our product candidate;

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the rate of progress in establishing reimbursement arrangements with third-party payors;

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the effect of competing technological and market developments;

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the costs involved in filing and prosecuting patent applications and enforcing or defending patent claims; and

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other risk factors included under the caption “Risk Factors Related to the Mergers, Merger Agreement” starting on page 34 of this proxy statement.

You should read the matters described in “Risk Factors” in Panbela’s annual report on Form 10-K for the year ended December 31, 2021 (the “annual report”) and the other cautionary statements made in this proxy statement as being applicable to all related forward-looking statements wherever they appear in this proxy statement. We cannot assure you that the forward-looking statements in this proxy statement will prove to be accurate and therefore you are encouraged not to place undue reliance on forward-looking statements. You should read this proxy statement completely. Other than as required by law, we undertake no obligation to update or revise these forward-looking statements, even though our situation may change in the future.

We caution readers not to place undue reliance on any forward-looking statement that speaks only as of the date made and to recognize that forward-looking statements are predictions of future results, which may not occur as anticipated. Actual results could differ materially from those anticipated in the forward-looking statements and from historical results due to the risks and uncertainties described in Part I, Item 1A, of the annual report, as well as others that we may consider immaterial or do not anticipate at this time. Although we believe that the expectations reflected in our forward-looking statements are reasonable, we do not know whether our expectations will prove correct. Our expectations reflected in our forward-looking statements can be affected by inaccurate assumptions that we might make or by known or unknown risks and uncertainties, including those described in Part I, Item 1A, of the annual report. The risks and uncertainties described in Part I, Item 1A, of the annual report are not exclusive and further information concerning us and our business, including factors that potentially could materially affect our financial results or condition, may emerge from time to time. We assume no obligation to update forward-looking statements to reflect actual results or changes in factors or assumptions affecting such forward-looking statements. We advise stockholders and investors to consult any further disclosures we may make on related subjects in our subsequent annual reports on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K that we file with or furnish to the U.S. Securities and Exchange Commission (the “SEC”).

PANBELA THERAPEUTICS, INC.
712 Vista Boulevard #305
Waconia, Minnesota 55387

PROXY STATEMENT

The Board of Directors (the “Board”) of Panbela Therapeutics, Inc. (“Panbela”) is soliciting proxies for use at the Annual Meeting of Stockholders to be held on June 8, 2022, and at any adjournment or postponement of the meeting (the “Annual Meeting”).

The Annual Meeting will be held at Element Bloomington, 2400 East 82^nd Street, Bloomington, Minnesota 55425. Registration for the Annual Meeting will begin at 2:00 p.m., local time. The Annual Meeting will commence at 2:30 p.m. local time. This solicitation is being made by mail; however, we also may use our officers, directors and employees (without providing them with additional compensation) to solicit proxies from stockholders in person or by internet, telephone, electronic communication or letter. Distribution of this proxy statement and the proxy card is scheduled to begin on or about April 29, 2022.

QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING AND VOTING

Q:	Why did I receive this proxy statement?

The Board of Directors is soliciting your proxy for use at the Annual Meeting because you owned shares of our common stock at the close of business on April 29, 2022, the record date for the Annual Meeting (the “Record Date”), and, therefore, are entitled to notice of the Annual Meeting and may vote at the Annual Meeting.

Q:	What is a proxy?

A proxy is your legal designation of another person or persons to vote on your behalf. By completing and returning the enclosed proxy card or voting in accordance with the instructions set forth therein, you are giving Jennifer K. Simpson and Susan Horvath, the proxy holders, the authority to vote your shares of common stock at the Annual Meeting in the manner you indicate. If you do not give direction with respect to any nominee or other proposal, the proxy holders will vote your shares as recommended by the Board of Directors. The proxy holders are authorized to vote in their discretion if other matters are properly submitted at the Annual Meeting.

Q:	Who can vote?

Holders of our common stock at the close of business on the Record Date are entitled to vote at the Annual Meeting. On that date, there were a total of shares of our common stock outstanding, which shares were held by record holders. This proxy statement and any accompanying proxy card, along with the annual report on Form 10-K for the fiscal year ended December 31, 2021, will be first made available to stockholders beginning on or about April 29, 2022. This proxy statement summarizes the information you need to complete and submit your proxy or to vote at the Annual Meeting.

Q:	Who can attend the Annual Meeting?

A:	All stockholders as of the Record Date, or their duly appointed proxy holders, may attend the Annual Meeting. If you hold your shares in street name, then you must request a legal proxy from your broker or nominee to attend or vote at the Annual Meeting.

Q:	What proposals am I being asked to vote on?

A:	There are four substantive matters to be voted on at the meeting, as follows:

Proposal	Board Vote Recommendation	Additional Detail
Proposal 1: Election of two Class III directors to serve a three-year term	FOR each nominee	Page 8
Proposal 2: Ratification of the selection of Cherry Bekaert LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022	FOR	Page 20
Proposal 3: Approval of the issuance of shares of common stock as partial consideration for our acquisition of Cancer Prevention Pharmaceuticals, Inc. (the “Share Issuance”)	FOR	Page 21
Proposal 4: Approval of the adjournment or postponement of the Annual Meeting to solicit additional proxies if there are insufficient votes to approve Proposal 3	FOR	Page 42

Q:	What constitutes a quorum?

A majority of the voting power, which includes the voting power that is present in person or by proxy, regardless of whether the proxy has authority to vote on all matters, constitutes a quorum for the transaction of business at the Annual Meeting. As of the Record Date, shares of our common stock constituted a majority of the voting power. If you submit a valid proxy or attend the Annual Meeting, your shares will be counted to determine whether there is a quorum. Broker non-votes and abstentions are also counted for the purpose of determining a quorum, as discussed below.

Q:	What vote is required to approve each proposal?

A:	Proposal 1 – Provided a quorum is present at the Annual Meeting, directors will be elected by a plurality of the votes cast, which means that the two nominees receiving the most votes will be elected.

Proposals 2, 3 and 4 – Provided a quorum is present at the Annual Meeting, each proposal will be approved if it receives the affirmative vote of a majority of the shares of stock represented at the meeting and entitled to vote on the proposal.

Q:	What is the effect of broker non-votes and abstentions?

A “broker non-vote” occurs when a nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have or does not exercise discretionary voting power with respect to that item and has not received voting instructions from the beneficial owner. If a broker returns a “non-vote” proxy indicating a lack of authority to vote on a proposal, then the shares covered by such a “non-vote” proxy will be deemed present at the Annual Meeting for purposes of determining a quorum, but not present for purposes of calculating the vote with respect to any non-discretionary proposals. Nominees will not have discretionary voting power with respect to any matter to be voted upon at the Annual Meeting, other than the ratification of the selection of our independent registered public accounting firm and the adjournment proposal. Broker non-votes, if any, will have no effect on the outcomes of Proposals 1, 2, 3 or 4.

A properly executed proxy marked “ABSTAIN” with respect to a proposal will be counted for purposes of determining whether there is a quorum and will be considered present in person or by proxy and entitled to vote but will not be deemed to have been voted in favor of such proposal. Abstentions will have the effect of a vote against Proposals 2, 3 and 4 but will have no effect on the outcome of Proposal 1.

Q:	How will the proxy holders vote on any other business brought up at the Annual Meeting?

A:	By submitting your proxy, you authorize the proxy holders to use their judgment to determine how to vote on any other matter brought before the Annual Meeting, or any adjournments or postponements thereof. We do not know of any other business to be considered at the Annual Meeting.

Q:	How do I vote my shares?

A:	If you are a stockholder of record, you may vote your shares of common stock at the Annual Meeting using any of the following methods identified on your proxy card or voting instructions, including via internet, telephone or mail.

All stockholders of record as of the Record Date may vote in person at the Annual Meeting. Even if you plan to attend the Annual Meeting, we recommend that you submit your proxy card or vote by internet or telephone ahead of time so that your vote can be counted if you later decide not to attend.

You are a “beneficial owner” of shares held in “street name,” rather than a “stockholder of record,” if your shares are held in the name of a broker, bank, trust or other nominee as a custodian, and this proxy statement and the accompanying notice were forwarded to you by that organization. As a beneficial owner, you have the right to direct your broker, bank, trust or other nominee how to vote your shares. You may vote by proxy by completing the voting instruction form provided by your custodian. Since a beneficial owner is not the stockholder of record, you may not vote your shares in person at the Annual Meeting unless you obtain a “legal proxy” from the broker, bank, trustee, or nominee that holds your shares giving you the right to vote the shares at the meeting.

Q:	Can I revoke or change my vote?

A:	You can revoke your proxy at any time before it is voted at the Annual Meeting by:

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Submitting a new proxy with a more recent date than that of the first proxy given before 11:59 p.m. EDT on June 7, 2022, by following the Internet voting instructions;

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Completing, signing, dating and returning a new proxy card to us, which must be received by us before the time of the Annual Meeting; or

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If you are a registered stockholder, by attending the meeting in person and delivering a proper written notice of revocation of your proxy.

Attendance at the meeting will not by itself revoke a previously granted proxy. Unless you decide to vote your shares in person, you should revoke your prior proxy in the same way you initially submitted it, whether that was via internet, telephone, mail or any other permissible method.

Q:	Is my vote confidential?

A:	All proxies and all vote tabulations that identify an individual stockholder are confidential. Your vote will not be disclosed except:

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To allow our independent proxy tabulator to tabulate the vote,

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To allow the inspector of election to certify the results of the vote, and

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To meet applicable legal requirements.

Q:	What happens if I don’t vote shares that I own?

Shares registered in your name. If you do not vote shares that are registered in your name by voting in person at the Annual Meeting or as described on your proxy card or other voting instructions, your shares will not be counted in determining the presence of a quorum or in determining the outcome of the vote on the proposals presented at the Annual Meeting.

Shares held in street name. If you hold shares through a broker, you will receive voting instructions from your broker. If you do not submit voting instructions to your broker and your broker does not have discretion to vote your shares on a particular matter, then your shares will not be counted in determining the outcome of the vote on that matter at the Annual Meeting. See “What is the effect of broker non-votes and abstentions?” as described above. Your broker will not have discretion to vote your shares for any matter to be voted upon at the Annual Meeting other than the ratification of the selection of our independent registered public accounting firm and the proposal to adjourn the meeting. Accordingly, it is important that you provide voting instructions to your broker for the matters to be voted upon at the Annual Meeting.

Q:	What if I do not specify how I want my shares voted?

If you are a registered stockholder and submit a signed proxy card or submit your proxy by Internet or telephone but do not specify how you want to vote your shares on a particular matter, we will vote your shares in accordance with the recommendations of the Board of Directors as set forth above with respect to matters described in the proxy statement.

If any matters not described in the proxy statement are properly presented at the Annual Meeting, the proxy holders will use their own judgment to determine how to vote your shares. If the Annual Meeting is adjourned, the proxy holders can vote your shares on the new meeting date as well, unless you have revoked your proxy instructions, as described under “Can I revoke or change my vote?”

Q:	What does it mean if I get more than one proxy card?

A:	Your shares are probably registered in more than one account. You should follow voting instructions for all proxy cards you receive.

Q:	How many votes can I cast?

A:	You are entitled to one vote per share on all matters presented at the Annual Meeting. Our stockholders do not have a right to cumulate their votes for the election of directors or otherwise.

Q:	When are stockholder proposals and nominees due for the 2023 Annual Meeting of Stockholders?

If you want to submit a stockholder proposal or nominee for the 2023 Annual Meeting of Stockholders, you must submit the proposal in writing to our Secretary at Panbela Therapeutics, Inc., 712 Vista Boulevard #305, Waconia, Minnesota 55387, so it is received by the relevant date set forth below under “Submission of Stockholder Proposals and Nominations.”

Q:	How is this proxy solicitation being conducted?

We will bear the entire cost of solicitation, including the preparation, printing and mailing of this proxy statement, the proxy card and any other solicitation materials or services we may use in connection with the Annual Meeting or any adjournment thereof, as well as the preparation and posting of all proxy materials furnished to the stockholders in connection with the Annual Meeting or any adjournment thereof. We have engaged Alliance Advisors LLC to assist in the solicitation of proxies and provide related advice and information support, for a services fee and the reimbursement of customary disbursements, which are not expected to exceed $35,000 in total.

Copies of any solicitation materials will be furnished to brokerage houses, fiduciaries and custodians holding shares in their names that are beneficially owned by others so that they may forward the solicitation materials to such beneficial owners. In addition, we may reimburse such persons for their costs in forwarding the solicitation materials to such beneficial owners. The original solicitation of proxies may be supplemented by a solicitation, by telephone, email or other means, by our directors, officers or employees. No additional compensation will be paid to these individuals for any such services.

Q:	Can I seek appraisal rights?

A:	The stockholders of Panbela have no appraisal or dissenter’s rights in connection with any of the proposals described in this proxy statement.

SUMMARY OF THE SHARE ISSUANCE

This summary highlights selected information from this proxy statement. It may not contain all of the information that is important to you. You are urged to read carefully the entire proxy statement and the other documents attached to or referred to in this proxy statement in order to fully understand each proposal to be presented to stockholders for approval at the Annual Meeting, including the Share Issuance. See “Where You Can Find More Information” on page 43 of this proxy statement. Each item in this summary refers to the page of this proxy statement on which the more detailed discussion of that subject begins.

The Share Issuance, Nasdaq Requirement for Approval (page 21)

Panbela’s common stock is listed on the Nasdaq Capital Market and it is subject to the Listing Rules of the Nasdaq Stock Market. Although we are not required to obtain stockholder approval of the merger agreement (discussed below) or the mergers themselves (also discussed below), we are required under Nasdaq Listing Rules 5635(a) to seek stockholder approval of the proposed issuance of the share-based portion of the merger consideration, as such issuance is in an amount in excess of 20% of our issued and outstanding shares of common stock as of the Record Date.

In order to achieve the target of having the holders of Cancer Prevention Pharmaceuticals, Inc. securities beneficially own 41% of HoldCo’s outstanding common stock on a fully-diluted basis upon closing of the mergers, we anticipate that, if Proposal No. 3 is approved, HoldCo would issue shares of its common stock up to an amount representing 69.5% of the number shares of Panbela common stock issued and outstanding as of the Record Date.

It is important that you understand that we are not required to, nor are we seeking, stockholder approval of the acquisition of CPP, or the related mergers and merger agreement. Rather, we are seeking stockholder approval for the purposes of complying with the Nasdaq Listing Rules relating to the issuance of shares of common stock as partial consideration for the acquisition of CPP.

Parties to the Mergers (page 23)

Canary Merger Holdings, Inc. (“HoldCo”), was formed for the purpose of holding Panbela and CPP as wholly owned subsidiaries following completion of the mergers. Following the mergers, HoldCo will have no significant assets other than the stock or other voting securities of Panbela and CPP, its wholly owned subsidiaries. It is expected that HoldCo will be renamed “Panbela Holdings, Inc.” in connection with the mergers.

Panbela Therapeutics, Inc. (“Panbela”) is a clinical-stage biopharmaceutical company developing disruptive therapeutics for patients with urgent unmet medical needs. Following the mergers, Panbela would become a wholly owned subsidiary of HoldCo.

Cancer Prevention Pharmaceuticals, Inc. (“CPP”) is a private, clinical stage company developing therapeutics to reduce the risk and recurrence of cancer and rare diseases; initial areas of focus include familial adenomatous polyposis (FAP) and colorectal cancer prevention. Following the mergers, CPP would become a wholly owned subsidiary of HoldCo.

Canary Merger Subsidiary I, Inc. (“Merger Sub I”) is a wholly owned subsidiary of HoldCo formed solely for the purpose of consummating the mergers. Merger Sub I would merge with and into Panbela (the “First Merger”), with Panbela surviving as a wholly owned subsidiary of HoldCo, and thereafter Merger Sub I will cease to exist.

Canary Merger Subsidiary II, Inc. (“Merger Sub II”) is a wholly owned subsidiary of HoldCo formed solely for the purpose of consummating the mergers. Merger Sub II would merge with and into CPP (the “Second Merger”), with CPP surviving as a wholly owned subsidiary of HoldCo, and thereafter Merger Sub II will cease to exist.

We refer to the First Merger and Second Merger together as the “mergers.”

Information about the Mergers and the Merger Agreement (starting on pages 22 and 32)

Upon consummation of the mergers:

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Panbela and CPP will each be a wholly owned subsidiary of HoldCo, and as a result, HoldCo will own what today are Panbela and CPP’s independent businesses;

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HoldCo will be renamed “Panbela Holdings, Inc.”;

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HoldCo’s common stock is expected to be listed on The Nasdaq Stock Market LLC under the symbol “PBLA”;

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Each share of Panbela common stock outstanding immediately prior to the effective time of the First Merger will automatically be converted into the right to receive one share of HoldCo common stock and each right to acquire shares of Panbela common stock will become a right to acquire shares of HoldCo common stock on the same terms and subject to the same conditions;

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Each share of CPP’s Series A-1 Preferred Stock and Series A-2 Preferred Stock (collectively, the “CPP Preferred Stock”) outstanding immediately prior to the effective time of the Second Merger automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio multiplied by the number of shares of CPP Common Stock into which such share was convertible, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Preferred Preference Satisfaction and any Remaining Post-Closing Contingent Payments (each, as defined in the merger agreement); and

•

Each share of CPP common stock (including shares of common stock resulting from the conversion of CPP Preferred Stock described above) then outstanding (other than certain excluded shares, “CPP Common Stock”) automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Remaining Post-Closing Contingent Payments.

The Exchange Ratio will be based on a target proportion of HoldCo common stock to be held by legacy holders of CPP equity securities (determined on a fully-diluted basis). The target proportion will result in holders of CPP securities (including options and warrants) beneficially owning approximately 41% of the number of shares of HoldCo common stock outstanding after the Second Merger, unless certain existing CPP indebtedness is fully satisfied sufficiently in advance of closing, in which case it will equal 45%. The number of shares of HoldCo common stock equal to the target proportion will then be divided by the number of shares of CPP Common Stock issued or issuable as of the Second Merger to produce the Exchange Ratio. The parties have agreed to hold back 10% of the shares of HoldCo common stock otherwise issuable to legacy holders of CPP equity securities for a period of up to one year after closing to satisfy certain obligations, including indemnification, by CPP pursuant to the merger agreement.

A copy of the merger agreement is attached to this proxy statement as Appendix A.

Our Reasons for the Mergers (page 26)

We believe the mergers are in the best interests of Panbela and its stockholders because the combination of CPP and Panbela will bring together an expanded pipeline addressing an estimated $5 billion aggregate market opportunity and strengthen Panbela’s position as a clinical stage development company focused on treating diseases where there is an unmet need through a diversified portfolio of assets and clinical programs. The supplemental clinical development is intended to include initiatives in all stages, inclusive of pre-clinical, Phase I, Phase II, Phase III and registration programs across several diseases.

Completion of the Mergers

It is currently anticipated that the mergers will close as soon as possible after all requisite approvals are obtained and all conditions have been satisfied, or where not prohibited by applicable law, waived.

The Board reserves the right to cancel or defer the timing of the mergers, even if Panbela’s stockholders vote to approve the Share Issuance and the other conditions to completion of the mergers are satisfied or waived, if the Board determines that the mergers are no longer advisable and in the best interests of Panbela and its stockholders.

Risk Factors (starting on page 34)

Before voting on any of the proposals described in this proxy statement, you should carefully consider all of the information contained in this proxy statement, as well as the specific risk factors under the heading “Risk Factors Related to the Mergers, Merger Agreement” in this proxy statement and the accompanying annual report on Form 10-K for the fiscal-year ended December 31, 2021.

Opinion of the Financial Advisor to Panbela (page 26)

In considering whether to recommend approval of the Share Issuance, the Board received an opinion of Canaccord Genuity LLC (“Canaccord Genuity”) on February 21, 2022, to the effect that, based upon and subject to certain assumptions, factors and qualifications set forth in the written opinion, the consideration to be paid by HoldCo for the acquisition of CPP pursuant to the merger agreement was fair, from a financial point of view, to Panbela, as of the date of the opinion.

The full text of the written opinion of Canaccord Genuity is attached to this proxy statement as Appendix B. You are encouraged to read the opinion carefully and in its entirety for a description of the assumptions made, procedures followed, matters considered and limitations on the review undertaken. You should also carefully consider the section titled "Opinion of Financial Advisor to Panbela" beginning on page 26.

Vote Required to Approve the Share Issuance (page 21)

Provided a quorum is present at the Annual Meeting, the Share Issuance proposal will be approved if it receives the affirmative vote of a majority of the shares of stock represented at the meeting and entitled to vote on the proposal.

Termination of the Merger Agreement (page 34)

The merger agreement contains termination rights for each of Panbela and CPP including, without limitation, in the event that (i) the transactions contemplated in the merger agreement are not consummated by June 30, 2022; (ii) any governmental entity issues a non-appealable final order permanently enjoining the transactions contemplated in the merger agreement; (iii) the Panbela stockholders do not approve the issuance of shares in the Second Merger; or (iv) the other Party breaches its representations, warranties or covenants under the merger agreement, subject to customary opportunities to cure such breach, if curable.

Effect of the Mergers on Panbela’s Stockholders (page 21)

If the Share Issuance proposal is approved, Panbela’s existing stockholders will experience substantial dilution in voting rights upon the issuance of the merger consideration in the Second Merger. As described above, if approved, the share-based merger consideration issuable to existing CPP securityholders will equal approximately 41% of our issued and outstanding securities as of the Record Date, on a fully-diluted basis, which assumes all outstanding warrants and options are exercised entirely and for cash.

Governance and Management of HoldCo (page 31)

Upon the closing of the mergers, the board of directors of HoldCo will consist of seven directors and will comprise five continuing directors from the Board as determined by Panbela and two members designated by CPP: Jeffrey E. Jacob and Daniel Donovan. HoldCo is expected to retain the same executive officers as Panbela following consummation of the mergers.

Financial Statements of Panbela

For the historical audited financial statements of Panbela for the fiscal years ended December 31, 2021 and 2020, please see its annual report on Form 10-K for the year ended December 31, 2021, which is incorporated by reference herein, and is included as a part of the proxy materials made available to stockholders for purposes of the Annual Meeting.

Financial Statements of CPP

The audited financial statements of CPP for the fiscal years ended December 31, 2021 and 2020 are provided as Appendix C.

Pro Forma Financial Statements of the Combined Company

The pro forma financial statements of the combined company in connection with the mergers are provided as Appendix D.

PROPOSAL 1:
ELECTION OF CLASS III DIRECTORS

Our business is overseen by a Board of Directors divided into three classes as nearly equal in number as possible, and directors typically are elected to a designated class for a term of three years. The following table sets forth certain information regarding the current members of our Board of Directors:

Name	Age	Position(s)
Michael T. Cullen	76	Chair of the Board of Directors
Jennifer K. Simpson	53	President and Chief Executive Officer
Suzanne Gagnon	65	Director
Jeffrey S. Mathiesen	61	Vice Chair and Lead Independent Director
Paul W. Schaffer	79	Director
D. Robert Schemel	66	Director
Arthur J. Fratamico	56	Director

The Board of Directors has fixed at two the number of directors to be elected to the Board at the Annual Meeting. Based upon the recommendation of its Nominating and Governance Committee, the Board has nominated Arthur J. Fratamico and Jeffrey S. Mathiesen to stand for election for a three-year term. Proxies solicited by the Board will, unless otherwise directed, be voted to elect the nominees as set forth below.

Nominees for Class III Directors –Terms Expiring in 2022 (2025 if re-elected)

Each of the nominees named below is a current director of Panbela and has indicated a willingness to serve as a director for the term to which he is elected, but in case any nominee is not a candidate at the meeting for any reason, the proxy holders named in our form of proxy may vote for a substitute nominee in their discretion or our Board of Directors may recommend that the number of directors to be elected be reduced.

Arthur J. Fratamico has served as a director of Panbela since December 2019. He is a registered pharmacist with over 30 years of experience in the pharmaceutical industry. Mr. Fratamico has been the Chief Executive Officer of Radiant Biotherapeutics, a company advancing a novel antibody platform that is focused on the development of multabodies, which are multi-valent and multi-specific antibodies, since May 2021. Prior to Radiant, Mr. Fratamico served as Chief Business Officer at Galera Therapeutics, Inc., a biopharmaceutical company dedicated to discovering and developing novel dismutase mimetics with the goal of transforming cancer radiotherapy, since January 2017. Prior to joining Galera, Mr. Fratamico served as Chief Business Officer of Vitae Pharmaceuticals, Inc., a Nasdaq-listed clinical-stage biotechnology company, from May 2014 until its sale to Allergan in December 2016. Prior to Vitae Pharmaceuticals, he held similar executive roles with a number of biotechnology companies leading their business development efforts, including facilitating the sales of Gemin X Pharmaceuticals, Inc. and MGI Pharma, Inc. In addition to being responsible for numerous licensing transactions and acquisitions, he also directed corporate strategy and managed external corporate communications. He also has served in several senior marketing, product planning and new product development positions. Mr. Fratamico earned a bachelor’s degree in pharmacy from the Philadelphia College of Pharmacy and Science and an M.B.A. from Drexel University. We believe that Mr. Fratamico brings substantial experience in the clinical stage development and commercialization of new biotechnology as well as leading business development efforts in the pharmaceutical industry.

Jeffrey S. Mathiesen has served as a director of Panbela since September 2015. Mr. Mathiesen also serves as a director and audit committee chairman of NeuroOne Medical Technologies Corporation, a publicly traded medical device company. Additionally, Mr. Mathiesen serves as Chief Financial Officer of Helius Medical Technologies, Inc., a publicly traded medical technology company focused on neurological wellness, where he previously served as a director and audit committee chairman. He also served as a director and audit committee chairman of eNeura, Inc., a privately held medical technology company providing therapy for both acute treatment and prevention of migraine from July 2018 to February 2020. Mr. Mathiesen has served as Advisor to the CEO of Teewinot Life Sciences, a privately held biopharmaceutical company focused on the biosynthetic production of pure pharmaceutical grade cannabinoids from October 2019 to December 2019, and as Chief Financial Officer from March 2019 to October 2019. In August 2020, Teewinot Life Sciences filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code. Previously Mr. Mathiesen served as Chief Financial Officer of Gemphire Therapeutics Inc., a publicly traded biopharmaceutical company from September 2015 to September 2018. From August 2015 to September 2015, he was a consultant to Gemphire. He served as Chief Financial Officer of Sunshine Heart, Inc., a publicly traded medical device company, from March 2011 to January 2015. Mr. Mathiesen has held executive positions with publicly traded companies dating back to 1993, including vice president and chief financial officer positions. Mr. Mathiesen holds a B.S. in Accounting from the University of South Dakota and is also a Certified Public Accountant. We believe that Mr. Mathiesen brings financial insight and leadership and a wealth of experience in capital markets to the Board of Directors, as well as knowledge of public company accounting and financial reporting requirements.

Class I Directors –Terms Expiring in 2023

Suzanne Gagnon, M.D., has served as a director of Panbela since June 2015 and as a consultant since July 2021. Previously, Dr. Gagnon served as Panbela’s Chief Medical Officer from January 2015 to July 2021, and prior to that was the Lead Clinical Consultant to Panbela. Dr. Gagnon has been the President of Gagnon Consulting LLC since July 2014, consulting on medical, safety and regulatory matters. From 2001 to 2014, Dr. Gagnon served as the Chief Medical Officer for three companies, ICON Clinical Research, Nupathe, Inc. and Idis, Inc. Dr. Gagnon is a graduate of Boston University School of Medicine and Boston City Hospital’s Medical Residency Program.

Paul W. Schaffer has served as a director since September 2015. Mr. Schaffer had previously served as a director of Sun BioPharma Research, Inc. (“SBR”) from January 2014 until it merged into our current corporate structure in 2015. Mr. Schaffer graduated from Minnesota Pharmacy School in 1966. He owned and operated a compounding pharmacy, Bloomington Drug, for 42 years. Mr. Schaffer is an experienced biotech investor.

Jennifer K. Simpson Ph.D., MSN, CRNP, has served as our President and Chief Executive Officer and as a director of Panbela since July 2020. Dr. Simpson most recently served as President and Chief Executive Officer and as a member of the board of directors of Delcath Systems, Inc. from 2015 to June 2020. She had previously held various other leadership roles at Delcath since 2012. From 2011 to 2012, Dr. Simpson served as Vice President, Global Marketing, Oncology Brand Lead at ImClone Systems, Inc. (a wholly owned subsidiary of Eli Lilly and Company), where she was responsible for all product commercialization activities and launch preparation for one of the late-stage assets. From 2009 to 2011, Dr. Simpson served as Vice President, Product Champion and from 2008 to 2009 as the Associate Vice President, Product Champion for ImClone’s product Ramucirumab. From 2006 to 2008, Dr. Simpson served as Product Director, Oncology Therapeutics Marketing at Ortho Biotech (now Janssen Biotech), a Pennsylvania-based biotech company that focuses on innovative solutions in immunology, oncology and nephrology. Earlier in her career, Dr. Simpson spent over a decade as a hematology/oncology nurse practitioner and educator. Dr. Simpson has served on the board of directors and nominating and corporate governance committee of Eagle Pharmaceuticals, Inc. since August 2019 and on the board of Directors of CytRx Corporation since July 2021.

Class II Directors – Term Expiring in 2024

Michael T. Cullen, M.D., M.B.A., has served as Chair of the Board of Directors and as a director of Panbela since September 2015. He served as Executive Chairman of the Board of Directors from 2015 to May 2021 and assumed responsibilities as President and Chief Executive Officer of Panbela from October 2018 to July 2020. Dr. Cullen brings over 30 years of pharmaceutical experience to Panbela, including expertise in working with development-stage companies in planning, designing and advancing drug candidates from preclinical through clinical development and launch. Dr. Cullen co-founded SBR in November 2011 and continuously served as Chair of its Board of Directors until it merged into our current corporate structure in 2015. He previously served as Chief Medical Officer from November 2011 to January 2015. Dr. Cullen assumed responsibility as the President and Chief Executive Officer of Panbela on October 31, 2018. Dr. Cullen provided due diligence consulting to the pharmaceutical industry from 2009 to 2011, after one year in transition consulting to Eisai Co., Ltd. He developed several oncology drugs as Chief Medical Officer for MGI Pharma Inc. from 2000 to 2008, and previously at G.D. Searle, SunPharm Corporation, and as Vice President for Clinical Consulting at IBAH Inc., the world’s fifth largest contract research organization, where he provided consulting services on business strategy, creating development plans, regulatory matters and designing clinical trials for several development stage companies in the pharmaceutical industry. Dr. Cullen was also a co-founder and Chief Executive Officer of IDD Medical, a pharmaceutical start-up company. Dr. Cullen joined 3M Pharmaceuticals in 1988 and contributed to the development of cardiovascular, rheumatology, pulmonary and immune-response modification drugs. Over the course of his career Dr. Cullen has been instrumental in obtaining the approval of ten drugs, including three (3) since 2004: Aloxi^®, Dacogen^® and Lusedra^®. Board-certified in Internal Medicine, Dr. Cullen practiced from 1977 to 1988 at Owatonna Clinic, Owatonna, MN, where he served as president. Dr. Cullen earned his M.D. and B.S. degrees from the University of Minnesota and his MBA from the University of St. Thomas and completed his residency and Board certification in Internal Medicine through the University of North Carolina in Chapel Hill and Wilmington, NC.

D. Robert Schemel has served as a director of Panbela since September 2015. Mr. Schemel served as a director of SBR from 2012 until it merged into our current corporate structure in 2015. Mr. Schemel has over 39 years’ experience in the agriculture industry. From 1973-2005, Mr. Schemel owned and operated a farming operation in Kandiyohi County, Minnesota, building a 5,000-acre operation producing corn, soybeans and sugar beets. Mr. Schemel has extensive experience in serving on boards of directors. From 1992-1996, he served as a board member for ValAdCo and then from 1996-2003 he served as the Chairman of the Board for Phenix Biocomposites.

Required Vote and Board Recommendation

Directors are elected by a plurality of votes present and entitled to vote. Provided that a quorum is present, the nominees receiving the highest number of votes will be elected. Votes cannot be cast for more than two nominees.

The Board of Directors recommends that you vote “FOR” each of the nominees for Class III Directors.

CORPORATE GOVERNANCE

In accordance with applicable laws and our bylaws, the business and affairs of Panbela are governed under the direction of our Board of Directors. The system of governance practices we follow is set forth in the charters of each of the committees of our Board of Directors. We also have adopted a code of business conduct and ethics relating to the conduct of our business by our employees, officers and directors. The corporate governance documents of Panbela are reviewed periodically to ensure effective and efficient governance and compliance in a timely manner with all laws.

Corporate governance information, including the corporate governance guidelines, committee charters and the code of business conduct and ethics applicable to our directors, officers and employees is posted on our website at www.panbela.com under the “Investor Relations” page. We plan to post to our website at the address described above any future amendments or waivers to our code of ethics and business conduct.

Board Diversity Matrix (as of April 28, 2022)

The following chart summarizes certain self-identified personal characteristics of our directors, in accordance with Nasdaq Listing Rule 5605(f). Each term used in the table has the meaning given to it in the rule and related instructions.

Total Number of Directors	7
	Female	Male	Non- Binary	Did Not Disclose Gender
Part I: Gender Identity
Directors	2	4		1
Part II: Demographic Background
African American or Black
Alaskan Native or Native American
Asian
Hispanic or Latinx
Native Hawaiian or Pacific Islander
White	2	4
Two or More Races or Ethnicities
LGBTQ+
Did Not Disclose Demographic Background	1

Board Leadership Structure

The positions of Chair of the Board of Directors and Chief Executive Officer have been held by separate individuals since Dr. Simpson joined Panbela as President and Chief Executive Officer in July 2020. We believe the separation of those roles has strengthened Panbela’s governance. In part because the position of Chair of the Board was then held by an executive officer, in March 2020, our Board of Directors designated Mr. Mathiesen to serve as its Vice Chair and as lead independent director. As Vice Chair and lead independent director, Mr. Mathiesen is responsible for (a) presiding over all executive sessions of non-employee, independent directors, (b) presiding at meetings of the Board in the absence of, or upon the request of, the Chair, (c) approving the scheduling of Board meetings as well as the agenda and materials for each Board meeting and executive session of the Board’s non-employee, independent directors, (d) serving as a liaison and supplemental channel of communication between the non-employee, independent directors and the Chair, (e) meeting regularly with the Chair, (f) communicating with stockholders as appropriate, and (g) approving and coordinating the retention of advisors and consultants who report directly to the non-employee, independent members of the Board, except as otherwise required by applicable law or any applicable exchange rules or listing standards.

Anti-Hedging Policy

Each of our directors, officers, other employees and their designees are prohibited from (i) purchasing financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) that hedge or offset, or are designed to hedge or offset, any decrease in the market value of our equity securities and (ii) otherwise engaging in transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of our equity securities. Notwithstanding the foregoing, portfolio diversification transactions and investments in broad-based index funds are generally permitted. The prohibition applies to securities granted to the covered persons as part of compensation for their service to Panbela plus any other of our securities held by them, whether directly or indirectly.

Nominating Process and Board Diversity

The Nominating and Governance Committee generally identifies director candidates based upon suggestions from current directors and senior management, recommendations by stockholders and advisors or use of a director search firm. Stockholders who wish to suggest qualified candidates may write to the attention of the Chair of our Nominating and Governance Committee at Panbela Therapeutics, Inc., 712 Vista Boulevard #305, Waconia, Minnesota 55387. All recommendations should state in detail the qualifications of such person for consideration by the committee and should be accompanied by an indication of the recommended person’s willingness to serve if elected. The committee will consider candidates recommended by stockholders in the same manner that it considers all director candidates.

Candidates for director are reviewed in the context of the current composition of our Board of Directors, our operations and the long-term interests of our stockholders. We do not have a policy regarding the consideration of diversity in identifying director nominees.

Director Independence

Our Board of Directors has reviewed the materiality of any relationship that each of our directors has with us, either directly or indirectly. Based on this review, our Board of Directors has determined that Messrs. Mathiesen, Schaffer, Schemel and Fratamico are “independent directors” as defined under the applicable rules of The Nasdaq Stock Market, LLC.

Communications with our Board of Directors

You may contact our Board of Directors or any director by mail addressed to the attention of our Board of Directors or the specific director identified by name or title, at 712 Vista Boulevard #305, Waconia, Minnesota 55387. All communications will be submitted to our Board of Directors or the specified director on a periodic basis.

Board Meetings and Attendance

Our Board of Directors held five meetings during 2021. Each director attended at least 75% of the meetings of our Board of Directors and the committees on which he or she served held during their service as a director or member of the committee in the year ended December 31, 2021.

Director Attendance at Annual Meeting

We do not have a formal policy regarding attendance of directors at our annual meeting of stockholders. All seven directors were present, in person or via teleconference, at our Annual Meeting of Stockholders held in 2021.

Committees of the Board of Directors

Our Board of Directors has established three standing committees: Audit, Compensation, and Nominating and Governance. The membership of each committee is as follows:

	Committees
Director	Audit	Compensation	Nominating and Governance	Independent Directors
Michael T. Cullen	–	–	–
Suzanne Gagnon	–	–	–
Jennifer K. Simpson	–	–	–
Jeffrey S. Mathiesen	Chair	–	Member	✔
Paul W. Schaffer	Member	Member	Chair	✔
D. Robert Schemel	Member	Chair	–	✔
Arthur J. Fratamico	–	Member	Member	✔

Audit Committee

The Audit Committee’s primary functions, among others, are to: (a) assist the Board of Directors in discharging its statutory and fiduciary responsibilities with regard to audits of the books and records of Panbela and the monitoring of its accounting and financial reporting practices; (b) carry on appropriate oversight to determine that Panbela and its subsidiaries have adequate administrative and internal accounting controls and that they are operating in accordance with prescribed procedures and codes of conduct; and (c) independently review Panbela’s financial information that is distributed to stockholders and the general public. The Audit Committee held five meetings during 2021. The Audit Committee has a charter, which is available on our website at www.panbela.com.

All of the members of the Audit Committee meet the requirements for financial literacy under the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). Our Board of Directors has determined that Jeffrey S. Mathiesen is qualified to serve as an audit committee financial expert, as that term is defined under the applicable rules of the SEC. Each member of the Audit Committee satisfies the independence requirements of Rule 10A-3(b)(1) of the Securities Exchange Act.

AUDIT COMMITTEE REPORT

In accordance with its written charter adopted by the Board of Directors, as amended, the Audit Committee assists the Board in fulfilling its oversight responsibility regarding the quality and integrity of the accounting, auditing and financial reporting practices of Panbela.

In discharging its duties, the Audit Committee:

(1)

reviewed and discussed the audited financial statements included in the Form 10-K for the fiscal year ended December 31, 2021 with management;

(2)

discussed with Cherry Bekaert LLP, Panbela’s independent registered public accounting firm, the matters required to be discussed by the applicable Public Company Accounting Oversight Board standards and the SEC;

(3)

received and reviewed the written disclosures and the letter from Cherry Bekaert LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding Cherry Bekaert LLP’s communications with the audit committee concerning independence, and the Audit Committee discussed with Cherry Bekaert LLP their independence from management and Panbela; and

(4)

has considered whether the provision of services by Cherry Bekaert LLP not related to the audit of the financial statements referred to above and to the reviews of the interim financial statements included in Panbela’s quarterly reports on Form 10-Q are compatible with maintaining Cherry Bekaert LLP’s independence and has determined that they are compatible and do not impact Cherry Bekaert LLP’s independence.

Based upon the review and discussions referred to above, the Audit Committee recommended to the Board of Directors that the audited financial statements be included in Panbela’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 to be filed with the SEC.

Audit Committee:

Jeffrey S. Mathiesen (Chair)

D. Robert Schemel

Paul W. Schaffer

Compensation Committee

The Compensation Committee reviews and recommends to our Board of Directors all compensation for our executive officers and, on an annual basis, the goals and objectives relevant to the annual compensation of our executive officers in light of their respective performance evaluations. Our Compensation Committee is also responsible for administering our equity incentive plans, including our 2011 Equity Incentive Plan, as amended (the “2011 Plan”), and our 2016 Omnibus Incentive Plan, as amended (the “2016 Plan”), including approval of individual grants of stock options and other equity-based awards. The Compensation Committee held three meetings during 2021. The Compensation Committee has a charter, which is available on our website at www.panbela.com.

In 2020, the Compensation Committee engaged the services of 21-Group, an independent compensation consultant, to complete a review of the compensation of executive officers and non-employee directors and aggregate compensation data for those position among firms in comparable industries at comparable growth stages. This information was updated by 21-Group in early 2022. The Compensation Committee used the information from the resulting report and discussions with management to establish a compensation strategy and establish target compensation levels for officers and non-employee directors. Applicable positions were evaluated using comparable industry, revenue and job responsibilities. In making final decisions regarding compensation to be paid to our executive officers, the Compensation Committee considers a variety of factors, including the information provided by its compensation consultant, the achievement of Panbela’s performance objectives, the general performance of Panbela and each executive officer, and other relevant factors. Final deliberations and decisions by the Compensation Committee regarding the form and amount of compensation to be paid to our executive officers are made by the Compensation Committee, without the presence of any of our executive officers. The non-employee director compensation review provided a market-based review of director compensation levels, practices and forms using data from survey sources, peer group proxy data and comparable market practices and included all forms of compensation.

Nominating and Governance Committee

The Nominating and Governance Committee is primarily responsible for identifying individuals qualified to serve as members of our Board of Directors, recommending individuals to our Board of Directors for nomination as directors and committee membership, reviewing the compensation paid to our non-employee directors and recommending adjustments in director compensation, as necessary, in addition to overseeing the annual evaluation of our Board of Directors. The Nominating and Governance Committee held one meeting during 2021. The Nominating and Governance Committee has a charter that is available on our website at www.panbela.com.

Role of the Board in Risk Oversight

We face a number of risks, including regulatory, compliance, legal, competitive, financial (accounting, credit, interest rate, liquidity and tax), operational, acquisitions, integration, political, strategic and reputational risks. Our management is responsible for the day-to-day management of risks faced by us, while the Board of Directors, as a whole and through its committees, has responsibility for the oversight of risk management. In its risk oversight role, the Board of Directors ensures that the risk management processes designed and implemented by management are adequate and functioning as designed. The Board of Directors oversees risks through the establishment of policies and procedures that are designed to guide daily operations in a manner consistent with applicable laws, regulations and risks acceptable to us. Our President and Chief Executive Officer, who is also a member of the Board of Directors, regularly discusses with the Board of Directors the strategies and risks facing our company. In particular, our Audit Committee has the responsibility to consider and discuss our major financial risk exposures and the steps our management has taken to monitor and control these exposures, including guidelines and policies to govern the process by which risk assessment and management is undertaken. The Audit Committee also monitors compliance with legal and regulatory requirements. Our Nominating and Governance Committee monitors the effectiveness of our corporate governance practices, including whether they are successful in preventing illegal or improper liability-creating conduct. Our Compensation Committee assesses and monitors whether any of our compensation policies and programs has the potential to encourage excessive risk-taking.

Certain Relationships and Related Party Transactions

The following is a summary of transactions since January 1, 2020 to which Panbela has been a party and in which the amount involved exceeded $113,000, which is approximately 1% of the average of our total assets as of the ends of our last two completed fiscal years, and in which any of our directors, executive officers, or beneficial owners of more than 10% of our capital stock had or will have a direct or indirect material interest, other than the compensation arrangements that are described under the heading “Executive Compensation: Employment Agreements” below.

Dr. Suzanne Gagnon was Panbela’s Chief Medical Officer until her retirement in July of 2021. Dr. Gagnon remains a member of our Board of Directors. We were party to an employment agreement with Dr. Gagnon in substantially the same form as the employment agreements with the Executives described below under the heading “Executive Compensation: Employment Agreements.” Dr. Gagnon was eligible to participate in the other compensation and benefit programs generally available to our employees. Her employment agreement also included customary confidentiality, non-competition and non-solicitation covenants. Under the employment agreement in effect through her voluntary retirement, Dr. Gagnon was entitled to receive an annualized base salary of $360,000. During 2020 and 2021, Dr. Gagnon received compensation from Panbela amounting to $197,800 and $293,500, respectively. In addition, in February 2021, based on the achievement of established metrics for 2020, Dr. Gagnon received a cash bonus of $117,000. No cash bonus was paid or will be paid to Dr. Gagnon in 2022 as Panbela’s plan requires that employees are employed as of the end of the year to be eligible for a bonus.

In July 2021, after approval by our Audit Committee, we entered into a consulting contract with Dr. Gagnon. The services to be provided by Dr. Gagnon include her professional support to complete the final study report for the Phase Ia/Ib clinical trial and additional support as a medical consultant for the clinical and administrative teams. The contract provides for a monthly retainer of $14,000 representing approximately eight hours per week for the first three months of the agreement; for the remainder of the term Dr. Gagnon shall be paid $400 per hour for all services provided. The contract will expire in July 2023 but may be terminated early by either party or extended if mutually agreed upon. For the year ended December 31, 2021 Dr. Gagnon was paid approximately $54,600 in professional consulting fees.

Limitation of Liability of Directors and Officers and Indemnification

Our certificate of incorporation limits the liability of the directors to the fullest extent permitted by Delaware law.

Our certificate of incorporation and bylaws provide that we will indemnify and advance expenses to the directors and officers to the fullest extent permitted by law or, if applicable, pursuant to indemnification agreements. They further provide that we may choose to indemnify other employees or agents of Panbela from time to time. The Delaware General Corporation Law, the certificate of incorporation and the bylaws also permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in connection with their services to Panbela, regardless of whether the certificate of incorporation or bylaws, as applicable, permit indemnification. We maintain a directors’ and officers’ liability insurance policy.

At present there is no pending litigation or proceeding involving any of the current or former directors or officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Related Person Transaction Approval Policy

Our Board of Directors has adopted a written policy regarding transactions with related persons, which we refer to as our related party transaction approval policy. Our related party transaction approval policy requires that any executive officer proposing to enter into a transaction with a “related party” generally must promptly disclose to our Audit Committee the proposed transaction and all material facts with respect thereto. In reviewing a transaction, our Audit Committee will consider all relevant facts and circumstances, including (1) the commercial reasonableness of the terms, (2) the benefit and perceived benefits, or lack thereof, to us, (3) the opportunity costs of alternate transactions and (4) the materiality and character of the related party’s interest, and the actual or apparent conflict of interest of the related party.

Our Audit Committee will not approve or ratify a related party transaction unless it determines that, upon consideration of all relevant information, the transaction is beneficial to Panbela and stockholders and the terms of the transaction are fair to Panbela. No related party transaction will be consummated without the approval or ratification of our Audit Committee. It will be our policy that a director will recuse him- or herself from any vote relating to a proposed or actual related party transaction in which they have an interest. Under our related party transaction approval policy, a “related party” includes any of our directors, director nominees, executive officers, any beneficial owner of more than 5% of our common stock and any immediate family member of any of the foregoing. Related party transactions exempt from our policy include transactions available to all of our employees and stockholders on the same terms and transactions between us and the related party that, when aggregated with the amount of all other transactions between us and the related party or its affiliates, involved less than one percent of the average of Panbela’s total assets at yearend for the last two completed fiscal years.

DIRECTOR COMPENSATION

The following table sets forth certain information regarding compensation of the persons who served as our non-employee directors during the most recent completed fiscal year.

Name	Fees Earned or Paid in Cash ($)	Stock Awards ^(a) ($)	Option Awards ^(b) ($)	Total ($)
Michael T. Cullen ^(c)	39,375	17,998	36,411	93,784
Arthur J. Fratamico ^(d)	43,752	17,998	36,411	98,161
Jeffrey S. Mathiesen ^(e)	73,752	17,998	36,411	128,161
Paul W. Schaffer ^(f)	54,996	17,998	36,411	109,405
D. Robert Schemel ^(g)	52,500	17,998	36,411	106,909

(a)

The values of stock awards, or restricted stock units, in this table represent the fair value of such awards granted during the fiscal year, as computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718. The assumptions used to determine the valuation of the awards are discussed in Note 9 to our consolidated financial statements, included in our annual report on Form 10-K for the fiscal year ended December 31, 2021.

(b)

The values of option awards in this table represent the fair value of such awards granted during the fiscal year, as computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718. The assumptions used to determine the valuation of the awards are discussed in Note 9 to our consolidated financial statements, included in our annual report on Form 10-K for the fiscal year ended December 31, 2021.

(c)	Dr. Cullen’s non-employee director compensation is also included in the Summary Compensation Table below. Dr. Cullen held 2,158 unvested restricted stock units and options to purchase an aggregate of 498,468 shares as of December 31, 2021.

(d)	Mr. Fratamico held 2,158 unvested restricted stock units and options to purchase an aggregate of 57,668 shares as of December 31, 2021.

(e)	Mr. Mathiesen held 2,158 unvested restricted stock units and options to purchase an aggregate of 80,668 shares as of December 31, 2021.

(f)	Mr. Shaffer held 2,158 unvested restricted stock units and options to purchase an aggregate of 96,668 shares as of December 31, 2021.

(g)	Mr. Schemel held 2,158 unvested restricted stock units and options to purchase an aggregate of 80,668 shares as of December 31, 2021.

Directors who are also our employees or who are providing consulting services receive no additional cash compensation for serving on our Board of Directors. Director Dr. Suzanne Gagnon was an employee of Panbela until her voluntary retirement in July of 2021. At her departure, Dr. Gagnon became a consultant of Panbela and as such was not entitled to any additional compensation for serving on the Board of Directors. During 2021, Panbela reimbursed non-employee directors for out-of-pocket expenses incurred in connection with attending meetings of our Board of Directors and its committees.

In December 2020, the Compensation Committee approved an update to the compensation of our non-employee directors for 2021. The new program provided cash compensation based on the general responsibilities and committee memberships held by each director. The total annual amounts were paid to directors monthly. In addition, on that same date, the Compensation Committee approved the issuance of restricted stock units (RSUs) to each non-employee director. The number of RSUs granted to each director was 2,875 and they vested in 5 equal increments beginning January 2021 through May 2021. In May 2021, the Compensation Committee approved the issuance of RSUs and options to each non-employee director, consisting of 4,316 RSUs and an option to purchase 12,368 shares of common stock, each of which are scheduled to vest in four equal increments on August 25, November 24, February 25 and the earlier of May 31, 2022 and the day before the issuer’s annual meeting of stockholders to be held in 2022. The options were issued with an initial exercise price of $4.17 per share, which was equal to the closing price of a share of Panbela common stock on the date of grant.

In February 2022, the Compensation Committee approved an update to the cash compensation for non-employee directors. The revised annual amounts described below were effective January 1, 2022 and will be paid out monthly.

Annual Retainer (all amounts in $)	General	Audit Committee	Nominating & Governance Committee	Compensation Committee
Nonemployee director	40,000	‐	‐	‐
Chair	32,500^(a)
Lead independent director	22,500^(b)	‐	‐	‐
Committee chair	‐	15,000	7,500	10,000
Committee member	‐	7,500	4,000	5,000

(a)	Paid in addition to nonemployee director retainer.

(b)	Paid in addition to nonemployee director retainer.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth certain information with respect to the beneficial ownership of our outstanding common stock as of April 28, 2022 by (i) each of our named executive officers identified in the Summary Compensation Table below; (ii) each of our directors; (iii) all of our executive officers, directors and director nominees as a group; and (iv) each other beneficial owner of 5% or more of our outstanding common stock. Ownership percentages are based on 13,449,117 shares of common stock outstanding as of the close of business on the same date. Beneficial ownership is determined in accordance with the rules of the SEC. To our knowledge and subject to applicable community property laws, each of the holders of stock listed below has sole voting and investment power as to the stock owned unless otherwise noted. The table below includes the number of shares underlying rights to acquire common stock that are exercisable within 60 days from April 28, 2022. Except as otherwise noted below, the address for each director or officer listed in the table is c/o Panbela Therapeutics, Inc., 712 Vista Blvd #305, Waconia, Minnesota 55387.

Name	Amount and Nature of Beneficial Ownership	Percentage of Outstanding Shares*
Executive Officers and Directors
Jennifer K. Simpson	168,539^(a)	1.2%
Susan Horvath	193,422^(b)	1.4%
Michael T. Cullen	940,689^(c)	6.7%
Arthur J. Fratamico	69,707^(d)	*
Suzanne Gagnon	444,493^(e)	3.1%
Jeffrey S. Mathiesen	90,859^(f)	*
Paul W. Schaffer	334,004^(g)	2.5%
D. Robert Schemel	471,691^(h)	3.5%
All directors and current executive officers as a group (8 persons)	2,682,903⁽ⁱ⁾	17.8%

Ryan Gilbertson 2012 Irrevocable Family Trust 8615 Eagle Creek Circle Savage, Minnesota 55378	764,890^(j)	5.6%

*	Less than 1%
(a)	Includes 1,000 shares indirectly held; 162,691 shares subject to stock options; and 2,424 shares subject to warrants.

(b)	Includes 160,134 shares subject to stock options and 19,852 shares subject to warrants.

(c)	Includes 204,576 shares held by the Cullen Living Trust; 449,302 shares subject to stock options; 1,079 shares underlying RSUs; and 70,000 shares subject to warrants.

(d)	Includes 57,668 shares subject to stock options; 1,079 shares underlying RSUs; and 2,424 shares subject to warrants.

(e)	Includes 391,067 shares subject to stock options and 7,142 shares subject to warrants.

(f)	Includes 80,668 shares subject to options and 1,079 shares underlying RSUs.

(g)	Includes 30,665 shares held by the Paul Shaffer Trust; 96,668 shares subject to stock options; 1,079 shares underlying RSUs; and 40,000 shares subject to warrants.

(h)	Includes 282,654 shares held by spouse; 11,750 shares held by parent’s estate over which director holds both voting and depository power but disclaims beneficial ownership; 80,668 shares subject to stock options; and 1,079 shares underlying RSUs.

(i)	Includes 1,448,366 shares subject to stock options; 5,395 shares underlying RSUs; and 141,842 shares subject to warrants.

(j)	Includes 171,430 shares subject to warrants.

EXECUTIVE COMPENSATION

Compensation of Named Executive Officers

The following disclosure focuses on our named executive officers. For fiscal 2021 our “named executive officers” consisted of: Dr. Simpson, Ms. Horvath, and Dr. Cullen, who retired from employment with Panbela in May of 2021.

Base salaries for each of our named executive officers were initially established based on arm’s-length negotiations with the applicable executive. The Compensation Committee of our Board of Directors reviews our executive officers’ salaries annually. When negotiating or reviewing base salaries, the Compensation Committee considers market competitiveness based on the experience of its members, the executive’s expected future contribution to our success and the relative salaries and responsibilities of our other executives.

Summary Compensation Table

The following table provides information regarding the compensation earned by our named executive officers for fiscal 2021 and 2020 (collectively referred to as the “Executives”):

Name and Principal Positions	Year	Salary ($)	Option Awards^(a) ($)	Stock Awards ($)	Nonequity Incentive Plan Compensation ^(b) ($)	Total ($)
Jennifer K. Simpson President and Chief Executive Officer ^(c)	2021	476,609	537,702	–	182,422	1,196,733
	2020	145,587	1,529,926	–	78,750	1,754,263
Susan Horvath Chief Financial Officer and Vice President of Finance	2021	302,200	155,258	–	99,620	557,078
	2020	226,000	98,176	–	90,000	414,176
Michael T. Cullen Former Executive Chairman ^(d)	2021	337,147	200,201	17,998	–	555,346
Michael T. Cullen Former Executive Chairman ^(d)	2020	316,000	179,900	–	141,750	637,650

(a)

(b)	Represents payments made under Panbela’s 2021 and 2020 Cash Incentive Programs as described further below.

(c)	Dr. Simpson joined Panbela in July 2020.

(d)

Dr. Cullen served as Panbela’s President and Chief Executive Officer from October 2018 until July 2020 and as Executive Chairman until his retirement. After his retirement in May of 2021, Dr. Cullen received non-employee director compensation of $39,375 included in salary in this table and options and RSUs granted after Dr. Cullen’s retirement. The options awarded for service as a non-employee director were valued at $36,411. All amounts paid for service as a non-employee director are also disclosed in the Director Compensation table above.

Cash Incentive Compensation

For 2020 and 2021, the Compensation Committee established performance objectives for each of the Executives based on clinical development and financial milestones. Each Executive’s potential payment upon satisfaction of the objectives was equal to the target set forth in the Executive’s employment agreement as described further below. In the first quarter of 2021, the Compensation Committee determined that all of 2020 objectives were achieved and approved payment at target for each Executive. In the first quarter of 2022, the Compensation Committee determined that Dr. Simpson’s bonus for 2021 was approved for payment at 76.55% of target and Ms. Horvath’s bonus was approved for payment at 82.41% of target. The 2021 incentive was paid in the first quarter of 2022. No cash bonus was paid or will be paid to Dr. Cullen in 2022 as Panbela’s plan requires that employees are employed as of the end of the year to be eligible for a bonus.

Actions Relating to 2022 Executive Compensation

In March 2022, the Compensation Committee established final performance objectives for each Executive based on clinical, manufacturing and financial milestones with target payouts commensurate with the percentages of base salary established in such Executive’s employment agreement. Each Executive, other than our President and Chief Executive Officer, also has individual objectives. Payment of cash incentive compensation, if any, will be made if and to the extent the Compensation Committee determines that an Executive’s objectives were achieved during 2022.

In February 2022, the Compensation Committee approved increases to the annual base salaries of each of the Executives effective as of January 1, 2022. These increases were based upon market data obtained by the Compensation Committee from an independent compensation consultant and are equal to the midpoint of the salary range data obtained for comparable industry and company growth stage companies. The resulting annual base salaries are $506,000 for Dr. Simpson and $320,000 for Ms. Horvath.

Outstanding Equity Awards as of December 31, 2021

Option Awards

Stock Awards

Name

Grant Date

Number of securities underlying unexercised options (#) exercisable

Number of securities underlying unexercised options (#) un-

exercisable

Option exercise

price ($)

Option

expiration Date

Number of shares or units of stock that have not vested
(#)

Market value of shares or units of stock that have not vested
(#)

Jennifer K. Simpson

7/17/2020

106,024

106,024^(a)

9.99

7/17/2030

3/30/2021

–

170,000^(b)

4.09

3/30/2031

9/13/2021

–

19,125^(c)

2.26

9/13/2031

Susan Horvath

4/17/2018

40,000

–

5.75

4/17/2028

5/21/2019

45,725

12,075^(d)

2.95

5/21/2029

9/24/2019

25,000

–

5.00

9/24/2029

6/24/2020

16,000

16,000^(e)

4.98

6/24/2030

3/30/2021

–

40,000^(f)

4.09

3/30/2031

9/13/2021

–

12,135^(g)

2.26

9/13/2031

Michael T. Cullen

3/5/2015

80,000

–

3.18

3/5/2025

12/12/2016

15,000

–

15.10

12/12/2026

2/27/2018

100,000

–

8.10

2/27/2028

5/21/2019

127,900

28,200^(h)

2.95

5/21/2029

9/24/2019

30,000

–

5.00

9/24/2029

6/24/2020

25,000

25,000⁽ⁱ⁾

4.98

6/24/2030

3/30/2021

–

55,000^(j)

4.09

3/30/2031

5/25/2021

9,276

3,092^(k)

4.17

5/25/2031

5/25/2021

2,158^(l)

3,733

(a)	Scheduled to vest with respect to 53,012 shares on July 17th in each of 2022 and 2023.

(b)	Scheduled to vest with respect to 56,667 shares on March 30th in each of 2022, 2023 and 2024.

(c)	Scheduled to vest with respect to 6,375 shares on September 13th in each of 2022, 2023 and 2024.

(d)	Scheduled to vest with respect to 12,075 shares on May 21, 2022.

(e)	Scheduled to vest with respect to 8,000 shares on June 24th in each of 2022 and 2023.

(f)	Scheduled to vest with respect to 13,333 shares on March 30th in each of 2022, 2023 and 2024.

(g)	Scheduled to vest with respect to 4,045 shares on September 13th in each of 2022, 2023 and 2024.

(h)	Scheduled to vest with respect to 28,200 shares on May 21, 2022.

(i)	Scheduled to vest with respect to 12,500 shares on June 24th in each of 2022 and 2023.

(j)	Scheduled to vest with respect to 18,333 shares on March 30th in each of 2022, 2023 and 2024.

(k)	Scheduled to vest with respect to 3,092 shares on May 25, 2022.

(l)	Scheduled to vest with respect to 1,079 shares on February 22, 2022 and the earlier of May 31, 2022 and the day before the Annual Meeting.

Employment Agreements

We are party to employment agreements with each of the Executives. In addition to the specific terms summarized below, each Executive is eligible to participate in the other compensation and benefit programs generally available to our employees, including our other executive officers, if any. Each such employment agreement also includes customary non-competition and non-solicitation covenants and a requirement that the Executive execute a supplemental agreement regarding confidentiality and assignment of intellectual property.

In accordance with the employment agreements, the base salary of each Executive is reviewed annually by the Compensation Committee of our Board of Directors. Pursuant to the employment agreements, the committee may authorize an increase for the applicable year but may not reduce an Executive’s base salary below its then-current level other than with the Executive’s consent or pursuant to a general wage reduction in respect of substantially all of our executive officers.

President and Chief Executive Officer

Under her employment agreement, Dr. Simpson is eligible to receive an annual performance-based cash bonus with a target amount equal to no less than 50% of her base salary. Payment of the bonus amount is subject to achievement of metrics to be established by our Board of Directors and her continued employment with Panbela through the end of the applicable cash bonus period.

Vice President of Finance and Chief Financial Officer

Under her employment agreement, Ms. Horvath is eligible to receive an annual performance-based cash bonus with a target amount equal to no less than 40% of her base salary. Payment of the bonus amount is subject to achievement of metrics to be established by our Board of Directors and her continued employment with Panbela through the end of the applicable cash bonus period.

Former Executive Chairman

Dr. Cullen voluntarily retired from his employment with Panbela in May of 2021. Under his employment agreement, Dr. Cullen had been eligible to receive an annual performance-based cash bonus with a target amount equal to no less than 45% of his base salary. Payment of the bonus amount was subject to achievement of metrics to be established by our Board of Directors and his continued employment with Panbela through the end of the applicable cash bonus period.

Potential Payments Upon Termination or Change-in-Control

Under their respective employment agreements, if Dr. Simpson’s or Ms. Horvath’s employment is terminated or Dr. Cullen’s employment was terminated by us for any reason other than for “cause” (as defined in the applicable employment agreement) or by him or her for “good reason” (as defined in the applicable employment agreement), then he or she will be eligible to receive an amount equal to their respective annualized salary plus an amount equal to a prorated portion of their cash bonus target, if any, for the year in which the termination occurred, in addition to other amounts accrued on or before the date of termination. If any such termination occurs within six months prior or two years after a “change of control” (as defined in the applicable employment agreement), then Dr. Cullen or Dr. Simpson or Ms. Horvath, as applicable, would instead receive an amount equal to his or her respective annualized salary, plus an amount equal to his or her full cash bonus target for the year in which the termination occurred.

PROPOSAL 2:
RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Audit Committee has selected Cherry Bekaert LLP to serve as our independent registered public accounting firm for 2022, and the Board of Directors is asking stockholders to ratify that selection. Although current law, rules and regulations, as well as the Audit Committee charter, require our independent registered public accounting firm to be supervised by the Audit Committee and recommended to the Board of Directors for appointment and, if necessary, removal, our Board of Directors considers the selection of an independent registered public accounting firm to be a matter of stockholder concern and considers this proposal to be an opportunity for stockholders to provide direct feedback. Cherry Bekaert LLP has served as Panbela’s independent registered public accounting firm since 2015.

Notwithstanding its selection of Cherry Bekaert LLP, the Audit Committee, in its discretion, may appoint another independent registered public accounting firm at any time during the year if the committee believes that such a change would be in the best interests of Panbela and its stockholders. If the appointment of Cherry Bekaert LLP is not ratified by our stockholders, the Audit Committee may reconsider whether it should appoint another independent registered public accounting firm. Representatives of Cherry Bekaert LLP are not expected to be present at the Annual Meeting.

Required Vote and Board Recommendation

Provided a quorum is present at the Annual Meeting, this proposal will be approved if it receives the affirmative vote of a majority of the shares of stock represented at the meeting and entitled to vote on the proposal.

The Board of Directors recommends that you vote “FOR” the ratification of the selection of Cherry Bekaert LLP as Panbela’s independent registered public accounting firm for 2022.

Audit Fees

Cherry Bekaert LLP (PCAOB ID 00677) served as our independent registered public accounting firm for the years ended December 31, 2021 and 2020. The following table presents the aggregate fees for professional services provided by Cherry Bekaert LLP related to those fiscal years:

	Year Ended
	December 31, 2021		December 31, 2020
Audit Fees ^(a)	$	105,500	$	112,000
Audit-Related Fees ^(b)		2,350		12,950
Total	$	107,850	$	124,950

(a)

Audit Fees consisted of fees for the audit of our annual consolidated financial statements, including audited consolidated financial statements presented in our annual report on Form 10-K, review of the consolidated financial statements presented in our quarterly reports on Form 10-Q and services that are normally provided by the independent registered public accountants in connection with statutory and regulatory filings or engagements for those fiscal years. This category also includes advice on audit and accounting matters that arose during, or as a result of, the audit or the review of interim financial statements and statutory audits required by non-U.S. jurisdiction.

(b)	Audit Related Fees consisted of fees for assurances and related services that are reasonably related to the performance of the audit of the consolidated financial statements and are not reported under “Audit Fees”.

Pre-approval Policy

The Audit Committee has established a policy governing our use of the services of our independent registered public accountants. Under the policy, the Audit Committee is required to pre-approve all audit and permitted non-audit services performed by our independent registered public accountants in order to ensure that the provision of such services does not impair the public accountants’ independence. In 2021 and 2020, all fees identified above that were billed by Cherry Bekaert LLP were approved by the Audit Committee in accordance with SEC requirements.

PROPOSAL 3:
APPROVAL OF ISSUANCE OF COMMON STOCK
IN CONNECTION WITH ACQUISITION

Our Board of Directors is proposing for approval by our stockholders, for purposes of complying with Nasdaq Listing Rule 5635(a), the issuance of shares of common stock to securityholders of Cancer Prevention Pharmaceuticals, Inc. as partial consideration in the mergers, which amount will be in excess of 20% of our outstanding common stock as of the Record Date.

Nasdaq Listing Rules – Requirement for Approval

Our common stock is listed on the Nasdaq Capital Market and we are subject to the Listing Rules of the Nasdaq Stock Market. Although we are not required to obtain stockholder approval of the merger agreement or the mergers themselves, we are required under Nasdaq Listing Rules 5635(a) to seek stockholder approval of the proposed issuance of the merger consideration, as such issuance is in an amount in excess of 20% of our issued and outstanding shares of common stock as of the Record Date.

Nasdaq Listing Rule 5635(a) requires stockholder approval prior to the issuance of securities “in connection with” the acquisition of the stock or assets of another company, where due to the present or potential issuance of common stock (or securities convertible into or exercisable for common stock), other than a public offering for cash, the common stock to be issued (a) constitutes voting power in excess of 20% of the outstanding voting power prior to the issuance or (b) is or will be in excess of 20% of the outstanding common stock prior to the issuance. In order to achieve the target of having CPP security holders beneficially own 41% of HoldCo’s outstanding common stock on a fully-diluted basis upon closing of the mergers, we anticipate that, if this Proposal No. 3 is approved, HoldCo would issue shares of common stock up to an amount representing 69.5% of our issued and outstanding securities as of the Record Date.

For illustrative purposes only, based on 13,449,117 shares of Panbela common stock issued and outstanding as of April 28, 2022 calculated on a GAAP fully-diluted basis, holders of CPP securities (including options and warrants to be assumed in the Second Merger) would be entitled to receive or purchase up to a maximum of 9,345,996 shares of HoldCo common stock in the Second Merger using a target post-closing beneficial ownership percentage of 41% in accordance with the terms of the merger agreement. Based on expected conversions of indebtedness and option exercises received by CPP through April 28, 2022, a total of 7,391,674 of the shares of HoldCo common stock would be issuable in exchange for CPP Common Stock (including shares of CPP Common Stock issuable upon conversion of CPP Preferred Stock and expected conversions of CPP indebtedness) and the remaining 1,954,322 shares of HoldCo common stock remaining subject to options and warrants assumed by HoldCo. Accordingly, legacy holders of Panbela common stock would hold approximately 64.5% of the issued and outstanding shares of HoldCo common stock and legacy holders of CPP Common Stock would hold approximately 35.5% of the issued and outstanding shares immediately after consummation of the mergers, in all cases subject to the 10% holdback provided for in the merger agreement. The following table summarizes the foregoing estimates:

	HoldCo Common Stock (#)		Proportion (%)
Shares held by Panbela stockholders (excludes options & warrants per merger agreement)		13,449,117		59.0	%
Maximum shares issuable in exchange for CPP securities (including options & warrants per merger agreement)		9,345,996		41.0	%
Denominator		22,795,113		100.0	%

Actual shares outstanding at closing		20,840,791

No individual, group or other entity is expected to own, or have the right to acquire, 20% or more of the outstanding shares of common stock or voting power of HoldCo as a result of the mergers.

Potential Effects of this Proposal

If this proposal is approved, our existing stockholders will experience substantial dilution in voting rights upon the issuance of the merger consideration in the Second Merger. As described above, if approved, the share-based merger consideration issuable to existing CPP securityholders will equal approximately 41% of our issued and outstanding securities as of the Record Date, on a fully-diluted basis, which assumes all outstanding warrants and options are exercised entirely and for cash.

Approval of this proposal is critical in our ability to satisfy our obligations under the merger agreement. If this proposal is not approved, we would be unable to complete the mergers under the current terms of the merger agreement and CPP will remain a separate legal entity.

Interests of Directors and Executive Officers

Our directors and executive officers have no substantial interests, directly or indirectly, in the matters set forth in this Proposal 3 except to the extent of: (i) their ownership of shares of our common stock and rights to acquire the same, and (ii) their respective expectations of continued employment and service on the board of directors of our new parent company, Panbela Holdings, Inc., following the mergers (assuming, in the case of Messrs. Fratamico and Mathiesen, that each are re-elected pursuant to Proposal 1), for which they each receive cash and equity compensation.

Required Vote and Board Recommendation

The Board of Directors recommends that you vote “FOR” the approval of the issuance of common stock in connection with the acquisition of CPP.

INFORMATION ABOUT THE MERGERS

The discussion in this proxy statement of the mergers is subject to, and is qualified in its entirety by reference to, the merger agreement, a copy of which is attached to this proxy statement as Appendix A and incorporated into this proxy statement by reference.

The consummation of the mergers will not result in a change of control of Panbela, but Panbela will itself become a wholly owned subsidiary of Canary Merger Holdings, Inc., which we intend to rename “Panbela Holdings, Inc.” (“HoldCo”). HoldCo is intended to become a successor issuer to Panbela immediately upon consummation of the mergers.

General Description of the Mergers

Before entering into the merger agreement, for the purpose of effecting the transactions contemplated thereby, Panbela formed a direct, wholly owned subsidiary, HoldCo, which in turn formed two direct, wholly owned subsidiaries, Canary Merger Subsidiary I, Inc. (“Merger Sub I”) and Canary Merger Subsidiary II, Inc. (“Merger Sub II”). Upon satisfaction or waiver of the conditions to closing in the merger agreement, Merger Sub I will consummate the First Merger with and into Panbela, with Panbela surviving the merger as a direct, wholly owned subsidiary of HoldCo, and Merger Sub II will consummate the Second Merger with and into CPP, with CPP surviving the merger as a direct, wholly owned subsidiary of HoldCo.

Upon consummation of the mergers:

●

Panbela and CPP will each be a wholly owned subsidiary of HoldCo, and as a result, HoldCo will own what today are Panbela and CPP’s independent businesses;

●

HoldCo will be renamed “Panbela Holdings, Inc.”;

●

HoldCo’s common stock is expected to be listed on The Nasdaq Stock Market LLC under the symbol “PBLA”;

●

Each share of CPP’s Series A-1 Preferred Stock and Series A-2 Preferred Stock (collectively, the “CPP Preferred Stock”) then issued and outstanding automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio multiplied by the number of shares of CPP Common Stock into which such share was convertible, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Preferred Preference Satisfaction and any Remaining Post-Closing Contingent Payments (each, as defined in the merger agreement); and

●

Each share of CPP common stock (including shares of common stock resulting from the conversion of CPP Preferred Stock described above) then issued and outstanding (other than certain excluded shares, “CPP Common Stock”) automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Remaining Post-Closing Contingent Payments.

Following the consummation of the mergers, it is expected that former holders of CPP Common Stock (including holders of shares of CPP Preferred Stock converted into shares of CPP Common Stock as described above) will own approximately 35.5% of HoldCo’s issued and outstanding common stock, subject to the 10% holdback, and former holders of Panbela common stock will own approximately 64.5% of HoldCo’s issued and outstanding common stock.

Parties to the Mergers

Canary Merger Holdings, Inc. (“HoldCo”)
712 Vista Blvd. #305
Waconia, Minnesota 55387
(952) 479-1196

HoldCo is a Delaware corporation formed for the purpose of holding Panbela and CPP as wholly owned subsidiaries following completion of the mergers. Following the mergers, HoldCo will have no significant assets other than the stock or other voting securities of Panbela and CPP, its wholly owned subsidiaries.

Panbela Therapeutics, Inc. (“Panbela”)
712 Vista Blvd. #305
Waconia, Minnesota 55387
(952) 479-1196

Panbela is a Delaware corporation and a clinical-stage biopharmaceutical company developing disruptive therapeutics for patients with urgent unmet medical needs. Panbela’s initial product candidate, SBP-101, is for the treatment of patients with metastatic pancreatic ductal adenocarcinoma, the most common type of pancreatic cancer. Panbela is dedicated to treating patients with pancreatic cancer and ovarian cancer, and is exploring SBP-101’s potential for efficacy in combination with other agents in other cancer indications. Following the First Merger, Panbela will become a wholly owned subsidiary of HoldCo.

Cancer Prevention Pharmaceuticals, Inc. (“CPP”)
712 Vista Blvd. #305
Waconia, Minnesota 55387
(952) 479-1196

CPP is a Delaware corporation and a private, clinical stage company developing therapeutics to reduce the risk and recurrence of cancer and rare diseases; initial areas of focus include familial adenomatous polyposis (FAP) and colorectal cancer prevention. The lead asset for CPP is Flynpovi which is a combination of CPP-1X (eflornithine) and sulindac, and it has a dual mechanism both inhibiting polyamine synthesis and increased polyamine export and catabolism. As the result of an existing North American license agreement, a new FAP registration trial is fully funded and is scheduled to begin by year end. In addition, a Phase 3 trial in colon cancer survivors is currently underway and is sponsored by the Southwest Oncology Group (SWOG). Additionally, clinical trials in neuroblastoma, gastric cancer, and early-onset type-1 diabetes are underway in collaboration with various nonprofit groups. Following the Second Merger, CPP will become a wholly owned subsidiary of HoldCo.

Canary Merger Subsidiary I, Inc. (“Merger Sub I”)
712 Vista Blvd. #305
Waconia, Minnesota 55387
(952) 479-1196

Merger Sub I is a wholly owned subsidiary of HoldCo, formed solely for the purpose of engaging in the First Merger and the other transactions contemplated by the merger agreement. In the First Merger, Merger Sub I will merge with and into Panbela, with Panbela surviving the First Merger as a wholly owned subsidiary of HoldCo, and thereafter Merger Sub I will cease to exist.

Canary Merger Subsidiary II, Inc. (“Merger Sub II”)
712 Vista Blvd. #305
Waconia, Minnesota 55387
(952) 479-1196

Merger Sub II is a wholly owned subsidiary of HoldCo, formed solely for the purpose of engaging in the Second Merger and the other transactions contemplated by the merger agreement. In the Second Merger, Merger Sub II will merge with and into CPP, with CPP surviving the Second Merger as a wholly owned subsidiary of HoldCo, and thereafter Merger Sub II will cease to exist.

Corporate Structures

The following chart summarizes Panbela’s and CPP’s respective corporate structures as of April 28, 2022:

The following chart summarizes the corporate structure of HoldCo, Panbela and CPP on a pro forma basis, after giving effect to the mergers and all ancillary transactions necessary, whether by contract or operation of law, to effect the transactions contemplated by the merger agreement (the “Transactions”):

Background to the Mergers

The terms of the merger agreement are the result of arm’s-length negotiations between representatives of Panbela and CPP. The following is a brief discussion of the background of these negotiations, the merger agreement and the mergers. The following chronology summarizes certain key events and contacts that led to the signing of the merger agreement. It does not purport to catalogue every conversation among Panbela and CPP.

As part of its oversight function, the Board and management regularly reviewed and assessed, among other things, Panbela’s long-term strategic plans and opportunities, competitive environment, and short-and long-term performance, with the primary goal of enhancing stockholder value.

In November 2018, Panbela’s Chairman, Dr. Michael Cullen, was introduced to CPP’s CEO, Jeffrey Jacob, by Panbela’s Chief Medical Officer and director, Dr. Suzanne Gagnon. Dr. Gagnon had been providing independent advisory services to CPP related to a pending FDA submission and was therefore familiar with CPP’s leading product candidate as well as CPP management.

On November 21, 2018, Panbela entered into a mutual confidentiality agreement with CPP to discuss potential collaborations.

By the end of 2018, after several conversations discussing both companies’ assets, development activities and financing plans, the CPP team chose to focus on their new drug application activities and discontinue conversations regarding potential collaborations.

In December 2020, Panbela CEO, Dr. Jennifer Simpson, was approached by a financial advisor for CPP. Two non-confidential company presentations were shared with Dr. Simpson and later discussed by several members of the Board. At that time, Panbela was focused on completion of its Phase Ia/Ib clinical trial work as well as designing and funding randomized clinical trial and did not pursue collaboration conversations.

In May of 2021, CPP again approached Panbela regarding a collaboration. Between May 2021 and February 2022, the Board held five meetings at which the potential transaction and related consideration and structures were discussed. The Board received regular written updates and met with management and Panbela’s financial and legal advisors regularly to review the status of negotiations with CPP and to discuss the merger agreement and all related documents.

On May 25, 2021, the Board held a regularly scheduled meeting at which Dr. Simpson identified a potential opportunity for collaboration or acquisition of CPP and reviewed presentation materials provided by CPP regarding its Flynpovi Program.

After preliminary diligence by both parties, Panbela proposed terms generally reflecting a cashless acquisition of CPP. Targeted final ownership by CPP of the combined company was negotiated to be dependent on the status of certain promissory notes at closing. If the debt was outstanding as of closing, then the agreed upon target percentage would be 41%, and if the debt had been settled as of closing, then the targeted percentage would be 45%. To recognize the value developed in its Flynpovi program, including a North American licensing partner, CPP originally proposed that the merger agreement include contingent cash consideration to be paid to legacy CPP stockholders. Three tiers of contingent cash payments were negotiated to be funded directly from milestone and royalty payments made to the combined company subsequent to the approval and commercialization of Flynpovi.

On September 22, 2021, Panbela engaged Canaccord Genuity to serve as its exclusive financial advisor with respect to the potential acquisition of CPP.

On November 17, 2021, the Board held a regularly scheduled meeting, which Ms. Horvath and legal counsel to Panbela, Faegre Drinker Biddle & Reath LLP (“Faegre Drinker”), attended. Dr. Simpson and Ms. Horvath reported on the status of negotiations with CPP and reviewed the material terms of a proposed non-binding term sheet with CPP. The Board authorized and directed management to execute and deliver the term sheet. Later that day, the parties executed the non-binding term sheet setting forth preliminary terms and conditions of a potential transaction among the parties and CPP’s agreement to enter into exclusive negotiations with Panbela through the evening of December 10, 2021.

On December 10, 2021, the parties entered into an amendment to the non-binding term sheet to extend CPP’s exclusive negotiation period to January 24, 2022.

On December 20, 2021, the Board held a meeting, which Ms. Horvath and a representative of Faegre Drinker attended. Dr. Simpson reported on the status of negotiations with CPP and presented proposed revisions to the structure of the mergers, which reflected the final two-merger structure.

On January 24, 2022, the parties entered into an amendment to the non-binding term sheet to extend CPP’s exclusive negotiation period to February 14, 2022.

On February 3, 2022, the Board held a meeting, which Ms. Horvath and representatives of Canaccord Genuity and Faegre Drinker attended. Prior to the meeting, the members of the Board were provided with materials relating to the proposed mergers, including, among other things, a summary of the material terms of the draft merger agreement prepared by Faegre Drinker and certain financial analyses of the mergers prepared by Canaccord Genuity. At the meeting, Ms. Horvath reviewed CPP’s financial statements for available annual and interim periods, representatives of Faegre Drinker reviewed the material terms of the merger agreement and reviewed with the directors their fiduciary duties under Delaware law in connection with their consideration of the mergers, the merger agreement, and the Share Issuance and a representative of Canaccord Genuity reviewed with the Board its financial analysis of the merger consideration.

On February 18, 2022, CPP informed Panbela that it was prepared to sign the merger agreement.

During the evening of February 21, 2022, the Board held a meeting, which Ms. Horvath and representatives of Canaccord Genuity and Faegre Drinker attended. Prior to the meeting, the members of the Board were provided with materials relating to the proposed mergers, including, among other things, a summary of the material terms of the merger agreement prepared by Faegre Drinker and certain financial analyses of the merger consideration prepared by Canaccord Genuity. At the meeting:

●

representatives of Faegre Drinker presented a summary of the material terms of the merger agreement;

●

representatives of Faegre Drinker reviewed with the directors their fiduciary duties under Delaware law in connection with their consideration of the mergers, the merger agreement, and the Share Issuance; and

●

representatives of Canaccord Genuity reviewed with the Board Canaccord Genuity's financial analysis of the merger consideration, and rendered an oral opinion, confirmed by delivery of a written opinion dated February 21, 2022, to the Board to the effect that, as of such date and based on and subject to various assumptions made, procedures followed, matters considered, limitations on the review undertaken and qualifications, the merger consideration to be paid by HoldCo pursuant to the merger agreement was fair, from a financial point of view, to Panbela.

Following consideration and discussion of the proposed merger agreement and the transactions contemplated thereby, the Board unanimously (1) approved the mergers, the merger agreement, and the other transactions contemplated by the agreement; (2) declared the mergers, the merger agreement, and the other transactions contemplated by the agreement, including the Share Issuance, to be fair, advisable, and in the best interests of Panbela and its stockholders; (3) directed that the approval of the Share Issuance be submitted to a vote at a meeting of the Panbela stockholders; and (4) recommended that the stockholders approve the same.

The parties executed the merger agreement later in the evening on February 21, 2022. Early in the morning of February 22, 2022, Panbela issued a press release announcing the parties’ execution of the merger agreement. The closing price of a share of Panbela common stock was $1.97 on February 22, 2022.

On April 7, 2022, CPP entered into an agreement with Sucampo AG that, subject to consummation of the Second Merger, will result in (i) a waiver of any acceleration of maturity that could have occurred under the Sucampo Notes (as defined below) in connection with the closing, (ii) conversion immediately before the Second Merger of all $5.0 million outstanding principal amount plus all accrued but unpaid interest under the 2016 Sucampo Note (as defined below) into new shares of CPP Series A-2 Preferred Stock, on terms consistent with CPP’s other converting indebtedness, and (ii) a restructuring of the 2017 Sucampo Note having an outstanding principal balance of $5.0 million to: (1) capitalize all principal and accrued but unpaid interest through the date of the closing, (2) provide for payments of $1.0 million plus accrued but unpaid interest on January 31^st of each of 2023, 2024, 2025, and 2026, with the remaining balance due on January 31, 2027 and (3) provide for HoldCo to guarantee CPP’s obligations after the closing. All or a portion of the first payment due in January of 2023 may become payable earlier if CPP or HoldCo completes a financing on or before January 31, 2023. See “Liquidity and Capital Resources—Indebtedness—Sucampo Notes” under the heading “Cancer Prevention Pharmaceuticals, Inc. Financial Information” below for additional details regarding these arrangements among CPP and Sucampo AG.

Important Information Regarding Cancer Prevention Pharmaceuticals, Inc.

CPP is a pharmaceutical company primarily engaged in the research and development of treatment and prevention options for colon polyps, adenomas, previous cancer risk, general disease and other cancer risk factors.

The lead investigational new drug product, Flynpovi, is a combination of the polyamine synthesis inhibitor CPP-1X and the non-steroidal anti-inflammatory drug sulindac. CPP believes that the investigational drug is unique in that it is designed to treat the risk factors (e.g., polyps) that are hypothesized to lead to Familial Adenomatous Polyposis (FAP) surgeries and colon cancer and therefore may have the ability to prevent various types of colon cancer. Flynpovi and CPP-1X have received orphan drug designation status for FAP in the United States and Europe; there are no currently approved pharmaceutical therapies for FAP. By targeting and treating precursor conditions to colorectal cancer (“CRC”), CPP’s product candidates may address an important and largely unmet medical need.

In July 2021, CPP entered into a licensing and development agreement whereby the licensee will support all development and commercialization of Flynpovi in North America. CPP retains all rights outside of the United States and Canada.

The merger agreement was unanimously approved and adopted by the board of directors of CPP and approved by a written consent of holders of a majority of the outstanding voting securities of CPP.

Panbela’s Reasons for the Mergers

Opinion of Financial Advisor to Panbela

Canaccord Genuity is acting as exclusive financial advisor to Panbela in connection with the mergers. At a meeting of the Board held on February 21, 2022 to evaluate the mergers, Canaccord Genuity delivered to the Board an oral opinion, which opinion was confirmed by delivery of a written opinion, dated February 21, 2022, to the effect that, as of that date and based upon and subject to certain assumptions, factors and qualifications set forth in the written opinion, the Company Merger Consideration to be paid by HoldCo pursuant to the merger agreement was fair, from a financial point of view, to Panbela. Canaccord Genuity did not express any view on, and its opinion did not address, any other term or aspect of any other agreements or arrangements contemplated by the merger agreement or entered into in connection with the mergers. For purposes of Canaccord Genuity’s opinion and related analyses, “Company Merger Consideration” means collectively, (i) a number of shares of HoldCo common stock equal to the Exchange Ratio, plus (ii) a right to receive a portion of the Post-Closing Contingent Payments as described in the merger agreement, which Post-Closing Contingent Payments will not exceed an aggregate amount of $60.0 million. For purposes of the opinion, Canaccord Genuity assumed, at the direction of the Board, that the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) will be 41% (or 45% if, as of the date specified in the merger agreement, all payment obligations of CPP under the Sucampo Notes (as described in the merger agreement) have been fully satisfied (or the lender thereunder has irrevocably committed to an arrangement that will result in full satisfaction in advance of the closing of the First Merger and the Second Merger of all such payment obligations)), without any adjustment.

The full text of Canaccord Genuity’s written opinion is attached to this proxy statement as Appendix B and is incorporated into this proxy statement by reference. The description of Canaccord Genuity’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of such opinion. Panbela stockholders are encouraged to read Canaccord Genuity’s opinion carefully and in its entirety for a description of the procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken by Canaccord Genuity in connection with its opinion. Canaccord Genuity’s opinion was addressed to the Board, was only one of many factors considered by the Board in its evaluation of the mergers and only addresses the fairness, from a financial point of view and as of the date of the opinion, to Panbela of the Company Merger Consideration to be paid by HoldCo pursuant to the merger agreement. Canaccord Genuity’s opinion does not address the relative merits of the mergers as compared to other business strategies or transactions that might be available to Panbela, nor does it address the underlying business decision of Panbela to proceed with the mergers. Canaccord Genuity’s opinion was directed to and for the information of the Board only (in its capacity as such) in connection with its evaluation of the mergers and does not constitute advice or a recommendation to the Board as to how the Board should vote with respect to the merger agreement or any stockholder of Panbela as to how such stockholder should vote its shares of Panbela common stock with respect to any matter related to the mergers, or how such person should otherwise act on any other matter with respect to the mergers. Canaccord Genuity’s opinion was necessarily based on securities, economic, market and monetary conditions prevailing on, and the information made available to, Canaccord Genuity as of, February 21, 2022, the date of its opinion. Subsequent developments may affect the conclusions expressed in Canaccord Genuity’s opinion if such opinion were rendered as of a later date. Canaccord Genuity assumes no responsibility for updating, revising or reaffirming its opinion based on circumstances or events occurring after the date of the opinion.

In connection with Canaccord Genuity’s review of the mergers and developing the opinion described above, Canaccord Genuity:

(i)

reviewed certain publicly available historical business and financial information concerning Panbela;

(ii)

reviewed certain historical financial statements and other historical financial and operating data concerning Panbela and CPP provided to Canaccord Genuity by management of Panbela;

(iii)

reviewed certain estimates and data relating to Panbela and CPP prepared by the management of Panbela or CPP that Canaccord Genuity was directed to utilize by Panbela in its analysis;

(iv)

conducted discussions with members of management of Panbela regarding the past and current operations and financial condition and the prospects of Panbela and CPP;

(v)

reviewed financial and stock market data for certain companies, the securities of which are publicly traded, that Canaccord Genuity deemed to be relevant to CPP;

(vi)

compared the financial terms of the mergers with the financial terms of certain other acquisitions Canaccord Genuity deemed to be relevant and comparable to the mergers;

(vii)

reviewed the terms of the draft merger agreement provided to Canaccord Genuity by Panbela on February 17, 2022, which Canaccord Genuity assumed, with the consent of the Board, to be identical in all material respects to the agreement executed by the parties; and

(viii)

reviewed such other financial studies and analyses, performed such other investigations, and took into account such other matters as Canaccord Genuity deemed necessary, including an assessment of general securities, economic, market and monetary conditions.

In connection with Canaccord Genuity’s review and arriving at its opinion, Canaccord Genuity did not independently verify any of the foregoing information, relied on such information, assumed that all such information was complete and accurate in all material respects, and relied on assurances of management of Panbela and CPP that they are not aware of any facts that would make such information misleading. With respect to any forward-looking information reviewed by Canaccord Genuity, Canaccord Genuity assumed, with the consent of the Board, that such information had been reasonably prepared on bases reflecting the best currently available estimates and judgments of management as to the matters covered thereby, and Canaccord Genuity relied, at the direction of the Board, on such information for purposes of its analysis and opinion. Canaccord Genuity expressed no view or opinion as to such information or the assumptions on which it was based. Canaccord Genuity was not provided with financial forecasts regarding Panbela’s or CPP’s businesses that management of Panbela directed Canaccord Genuity to use in its analysis. Canaccord Genuity also expressed no view as to the likelihood of whether any of the approvals or other milestones upon which the Post-Closing Contingent Payments are to be paid pursuant to the merger agreement will be obtained or whether the Post-Closing Contingent Payments will become payable.

Canaccord Genuity also assumed that (i) the mergers will be consummated upon the terms set forth in the merger agreement, without any waiver, modification or amendment of any material term, condition or agreement therein which would be in any way meaningful to Canaccord Genuity’s analysis, (ii) the representations and warranties made by the parties to the merger agreement are and will be true and correct in all respects material to Canaccord Genuity’s analysis, and (iii) in the course of obtaining necessary governmental, regulatory and third party approvals and consents for the mergers, no modification, delay, limitation, restriction or conditions will be imposed which would have an adverse effect on Panbela, HoldCo or CPP or be in any way meaningful to Canaccord Genuity’s analysis. Canaccord Genuity is not a legal, accounting, regulatory or tax expert and relied on the assessments made by Panbela and its advisors with respect to such matters.

Canaccord Genuity’s opinion is limited to and addresses only the fairness, from a financial point of view, as of the date of the opinion, to Panbela of the Company Merger Consideration to be paid by HoldCo pursuant to the merger agreement. Canaccord Genuity did not express any view on, and its opinion did not address, any other term or aspect of any other agreement or arrangements contemplated by the merger agreement or entered into in connection with the mergers. Canaccord Genuity also expressed no opinion as to the fairness of the mergers to the holders of any class of securities, creditors or other constituencies of Panbela, HoldCo or CPP. Canaccord Genuity’s opinion does not address the relative merits of the mergers as compared to other business strategies or transactions that might be available to Panbela, nor does it address the underlying business decision of Panbela to proceed with the mergers or any view on another term or aspect of the mergers, including, without limitation, the structure or form of the mergers. Canaccord Genuity did not consider, and did not express an opinion as to, the fairness of the amount or nature of the compensation to any of the officers, directors or employees of Panbela, HoldCo, CPP or any other party, or class of such persons. Further, Canaccord Genuity did not express any opinion as to in the future what the price or range of prices at which the shares of Panbela common stock or HoldCo common stock or any other securities may trade or otherwise be transferable, including following announcement of the mergers.

Canaccord Genuity was not requested to conduct, and did not conduct, nor did Canaccord Genuity rely upon, any independent valuation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance sheet or otherwise) of Panbela, HoldCo or CPP. Canaccord Genuity also did not evaluate nor express any opinion as to the solvency of any party to the merger agreement, or the ability of Panbela, HoldCo or CPP to pay its obligations when they become due, or as to the impact of the mergers on such matters, under any state, federal or other laws relating to bankruptcy, insolvency or similar matters.

Summary of Financial Analyses

The following is a summary of the material financial analyses performed by Canaccord Genuity in connection with rendering its opinion dated February 21, 2022 described above. The following summary, however, does not purport to be a complete description of the factors considered or financial analyses performed by Canaccord Genuity, nor does the order of analyses described represent relative importance or weight given to those analyses by Canaccord Genuity. Some of these summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Canaccord Genuity’s financial analyses. In performing its analyses, Canaccord Genuity made numerous assumptions with respect to industry performance, general business and economic conditions and other matters, many of which are beyond the control of Panbela, HoldCo or any other parties to the merger agreement. Any estimates contained in these analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before February 18, 2022 (the trading day immediately prior to delivery of Canaccord Genuity’s opinion) and is not necessarily indicative of current market conditions.

Selected Public Companies Analysis. Canaccord Genuity reviewed publicly-available financial information related to selected publicly-traded late-stage oncology companies that Canaccord Genuity, based on its experience and professional judgment, deemed to share similar business characteristics to CPP. No company utilized in the selected public companies analysis is directly comparable to CPP and certain of these companies may have financial, business and/or operating characteristics that are materially different from those of CPP. The selected public companies are listed below:

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Fennec Pharmaceuticals Inc.

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Delcath Systems, Inc.

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Rain Therapeutics Inc.

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Vascular Biogenics Ltd.

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Ayala Pharmaceuticals, Inc.

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ERYTECH Pharma S.A.

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Sesen Bio Inc.

Canaccord Genuity calculated the implied total enterprise value of each of the selected public companies based on information obtained from filings with the SEC, the Capital IQ database, and other public sources as of February 18, 2022. For this analysis, Canaccord Genuity calculated total enterprise value by taking fully-diluted equity value (determined using the current share price multiplied by the fully-diluted shares outstanding calculated using the treasury stock method, as adjusted for financings), adding total debt (consisting of current and long-term debt liabilities, as adjusted for financings and warrant liabilities, where applicable), and subtracting total cash and cash equivalents (consisting of cash, marketable securities, and short-term and long-term investments, as adjusted for financings and milestone payments). Based on its analysis and other considerations that Canaccord Genuity deemed relevant in its experience and professional judgment, Canaccord Genuity derived a range of implied enterprise values for CPP of $23 million to $39 million based on the first and third quartiles of the enterprise values of the selected public companies.

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 41%, Canaccord Genuity derived a range of implied equity values for CPP of $9 million to $24 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $15.1 million (in each case as provided by CPP’s management as of December 31, 2021). Canaccord Genuity compared this range to the aggregate upfront value of the Company Merger Consideration of approximately $20 million (calculated as new shares to be issued by HoldCo of approximately 9.4 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share).

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 45%, and based on its analysis and other considerations that Canaccord Genuity deemed relevant in its experience and professional judgment, Canaccord Genuity derived a range of implied equity values for CPP of $21 million to $36 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $3.3 million (in each case as provided by CPP’s management as of December 31, 2021 and, with respect to total debt, assuming the conversion of the Sucampo debt). Canaccord Genuity compared this range to the aggregate upfront value of the Company Merger Consideration of approximately $24 million (calculated as new shares to be issued by HoldCo of approximately 11.0 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share).

Selected Precedent Transactions Analysis. Canaccord Genuity reviewed certain publicly available financial information related to selected transactions since 2019 involving clinical stage oncology companies that Canaccord Genuity, based on its experience and professional judgment, deemed relevant to consider in relation to CPP and the mergers. None of the selected transactions are directly comparable to the mergers. The selected precedent transactions are listed below:

Announcement Date	Target	Acquiror
05/13/2021	TRIGR Therapeutics, Inc.	Compass Therapeutics, Inc.
05/04/2021	Kuur Therapeutics, Inc.	Athenex, Inc.
03/09/2021	Maverick Therapeutics, Inc.	Takeda Pharmaceutical Company Limited
01/07/2021	Oncoceutics, Inc.	Chimerix, Inc.
11/23/2020	OncoImmune	Merck & Co., Inc.
11/18/2020	DCprime B.V.	Immunicum AB
11/02/2020	Kiadis Pharma N.V.	Sanofi
02/21/2019	Immune Design Corp.	Merck & Co., Inc.

Canaccord Genuity calculated the implied enterprise value of each of the target companies in the selected precedent transactions based on information obtained from filings with the SEC, the Capital IQ database, and other public sources as of February 18, 2022. For this analysis, Canaccord Genuity calculated implied enterprise value based on the total transaction value including all potential contingent payments.

Upfront Payments Only. Based on its analysis and other considerations that Canaccord Genuity deemed relevant in its experience and professional judgment, Canaccord Genuity derived a range of implied enterprise values for CPP of $68 million to $329 million based on the first and third quartiles of the upfront transaction values of the selected precedent transactions.

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 41%, Canaccord Genuity derived a range of implied equity values for CPP of $54 million to $315 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $15.1 million (in each case as provided by CPP’s management as of December 31, 2021). Canaccord Genuity compared this range to the aggregate upfront value of the Company Merger Consideration of approximately $20 million (calculated as new shares to be issued by HoldCo of approximately 9.4 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share).

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 45%, Canaccord Genuity derived a range of implied equity values for CPP of $66 million to $326 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $3.3 million (in each case as provided by CPP’s management as of December 31, 2021 and, with respect to total debt, assuming the conversion of the Sucampo debt). Canaccord Genuity compared this range to the aggregate upfront value of the Company Merger Consideration of approximately $24 million (calculated as new shares to be issued by HoldCo of approximately 11.0 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share).

Upfront and Contingent Payments. Based on its analysis and other considerations that Canaccord Genuity deemed relevant in its experience and professional judgment, Canaccord Genuity derived a range of implied enterprise values for CPP of $155 million to $460 million based on the first and third quartiles of the total transaction values (including both upfront and potential contingent payments) of the selected precedent transactions.

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 41%, Canaccord Genuity derived a range of implied equity values for CPP of $141 million to $445 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $15.1 million (in each case as provided by CPP’s management as of December 31, 2021). Canaccord Genuity compared this range to the total value of the Company Merger Consideration of approximately $80 million, including the upfront value of approximately $20 million (calculated as new shares to be issued by HoldCo of approximately 9.4 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share) and potential contingent payments of $60 million without application of a discount factor.

●

For the scenario provided by the merger agreement in which the target proportion of HoldCo common stock to be held by legacy holders of CPP’s equity securities (determined on a fully-diluted basis in accordance with the merger agreement) would be 45%, Canaccord Genuity derived a range of implied equity values for CPP of $153 million to $457 million by applying this range of implied enterprise values and adding to such range CPP’s cash and cash equivalents of $0.7 million and subtracting from it CPP’s total debt of $3.3 million (in each case as provided by CPP’s management as of December 31, 2021 and, with respect to total debt, assuming the conversion of the Sucampo debt). Canaccord Genuity compared this range to the total value of the Company Merger Consideration of approximately $84 million, including the upfront value of approximately $24 million (calculated as new shares to be issued by HoldCo of approximately 11.0 million based on the capitalization of Panbela and CPP as provided by management as of February 18, 2022, multiplied by Panbela’s stock price on February 18, 2022 of $2.16 per share) and potential contingent payments of $60 million without application of a discount factor.

General

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Canaccord Genuity’s opinion. In arriving at its fairness determination, Canaccord Genuity considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Canaccord Genuity made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses, taken as a whole. No company or transaction used in the above analyses as a comparison is directly comparable to Panbela, CPP or the mergers. The reasons for and the circumstances surrounding each of the selected companies and transactions analyzed were diverse and there are inherent differences in the business, operations, financial condition and prospects of CPP and the companies included in those analyses.

Canaccord Genuity prepared these analyses for purposes of providing its opinion to the Board as to the fairness, from a financial point of view and as of the date of the opinion, to Panbela of the Company Merger Consideration to be paid by HoldCo pursuant to the merger agreement. These analyses do not purport to be appraisals, nor do they necessarily reflect the prices at which businesses or securities actually may be sold.

The Company Merger Consideration was determined through negotiations between Panbela and CPP and was approved by the Board. Canaccord Genuity provided advice to the Board during these negotiations. Canaccord Genuity, however, did not recommend any specific amount of consideration to Panbela or the Board or that any specific amount of consideration constituted the only appropriate consideration for the mergers.

Canaccord Genuity’s opinion to the Board was one of many factors taken into consideration by the Board in making its determination to approve the merger agreement. The foregoing summary does not purport to be a complete description of the factors considered or financial analyses performed by Canaccord Genuity in connection with its opinion and is qualified in its entirety by reference to the full text of the written opinion of Canaccord Genuity attached to this proxy statement as Appendix B. The issuance of Canaccord Genuity’s opinion was approved by a fairness committee of Canaccord Genuity.

Canaccord Genuity, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements and valuations for corporate and other purposes. In the ordinary course of business, Canaccord Genuity and its affiliates may acquire, hold or sell, for our and our affiliates’ own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of Panbela, HoldCo, CPP or their respective affiliates. During the two years preceding the date of this opinion, Canaccord Genuity has not provided any investment banking or other financial services of a material nature to Panbela, HoldCo or CPP. Canaccord Genuity may provide investment banking and other services to or with respect to Panbela, HoldCo, CPP or their respective affiliates in the future, for which Canaccord Genuity may receive compensation.

Panbela engaged Canaccord Genuity as its financial advisor because it is a nationally recognized investment banking firm that has substantial experience in transactions similar to the mergers. Pursuant to the terms of such engagement, Panbela agreed to pay Canaccord Genuity an aggregate fee of $800,000, $50,000 of which was payable upon signing of an engagement letter, $300,000 of which was payable upon delivery by Canaccord Genuity of its opinion dated February 21, 2022, and the remainder of which is payable contingent upon consummation of the mergers. In addition, Panbela has agreed to reimburse Canaccord Genuity for certain expenses and to indemnify Canaccord Genuity for liabilities relating to or arising out of its engagement.

Governance and Management of HoldCo

Following the consummation of the mergers, the business and affairs of HoldCo will be conducted by its management under the direction of a seven-person board of directors. HoldCo is expected to retain the same executive officers as Panbela following consummation of the mergers. Neither Panbela’s Board of Directors nor its Nominating and Corporate Governance Committee have determined which two directors will resign in connection with the mergers.

In accordance with the merger agreement, each of the following persons will be appointed to serve as directors of HoldCo, each of whom were identified by CPP (the “CPP Directors”):

Jeffrey E. Jacob, age 60, has served as Chief Executive Officer of CPP since 2009. He is also the principal of Tucson Pharma Ventures LLC, an Arizona-based biopharmaceutical consulting and investment firm, a role he’s held since 2004. In 2004, Mr. Jacob founded Systems Medicine Inc., a startup company applying systems biology, predictive pharmacogenomics, and clinical trial design innovations to the development of new cancer drugs and served as its chief executive officer until its sale in 2007, after which he served as a divisional chief executive officer until late 2008. Between 1987 and 2004, Mr. Jacob was employed by Research Corporation Technologies, most recently as Senior Vice President. During that time, he led the transformation of Research Corporation Technologies from a patent development and licensing organization to an early stage-technology incubation and venture deployment firm. He has served as a member of the board of directors of Research Corporation Technologies and currently serves as its chair. He is also a founding board member and previously served as the chief program officer of Critical Path Institute. Mr. Jacob holds a master’s degree in engineering and a master’s degree in Technology and Policy from the Massachusetts Institute of Technology and a bachelor’s degree in engineering from the University of Arizona. It is expected that Mr. Jacob will resign all positions with CPP in connection with the consummation of the mergers. Mr. Jacob’s over three decades of experience in drug development and life sciences investing, fundraising and regulatory matters, service on boards of directors, and familiarity with CPP uniquely qualify him to serve as a director of HoldCo.

Daniel Donovan, age 57, has served as a director and Chief Business Officer, a non-employee position, of CPP since 2011. He has served as chief executive officer of rareLife Solutions, Inc., a private company he co-founded in 2014. Before rareLife, Mr. Donovan founded Envision Pharma in 2001, serving as managing director then president until 2011. Envision Pharma was acquired by United BioSource Corporation in 2008, where Mr. Donovan served as Senior Vice President Strategy and Market Development and was a member of the leadership team. Mr. Donovan began his career at Pfizer serving in a variety of positions of increasing responsibility, ranging from sales to market research and marketing in the U.S. and internationally, culminating in his position as Director and European Team Leader. During his time at Pfizer, he played a pivotal role in the commercialization of some of the pharmaceutical industry’s most successful product launches. It is not expected that Mr. Donovan will hold any title with CPP or HoldCo or will provide any services beyond his role as a member of the board of directors of HoldCo after consummation of the mergers. Mr. Donovan’s experience in rare disease and in small and large pharmaceutical companies will be valuable additions to the board of directors of HoldCo.

There are no family relationships among any of Panbela’s executive officers or current members of its Board of Directors and the CPP Directors.

Prospective Director Independence

Nasdaq listing rules generally require that a majority of a company’s board of directors must consist of “independent directors” within the meaning of Nasdaq listing rules. Panbela’s board of directors has reviewed the materiality of any relationship that each of our directors has with us, either directly or indirectly. Based on this review, it has determined that Messrs. Donovan, Mathiesen, Schaffer, Schemel and Fratamico will be “independent directors” as defined under the applicable rules of The Nasdaq Stock Market, LLC.

Board Leadership Structure

We expect that Dr. Cullen will remain the Chair of the board of directors of HoldCo and Mr. Mathiesen will continue to serve as Vice Chair and lead independent director.

Accounting Treatment

It is expected that the mergers will be accounted for as an asset acquisition in accordance with accounting principles generally accepted in the United States (“GAAP”). Under this method of accounting, Panbela will measure the acquired assets and liabilities using the cost accumulation and allocation model, and the cost of the asset acquisition will be allocated on a relative fair value basis. The portion of the purchase price allocated to in-process research and development assets is expected to be expensed immediately as the assets will have no alternative future use.

Exemption From Registration; Restricted Securities

The issuance of the shares of HoldCo common stock to the holders of CPP shares will be issued in a transaction exempt from registration under the Securities Act of 1933, as amended, in reliance on Section 4(a)(2) thereof, and Regulation D promulgated thereunder. Accordingly, the shares of common stock of HoldCo proposed to be issued in the Second Merger will be restricted securities and may not be offered or sold by the holders of those shares, absent registration or an applicable exemption from registration requirements.

INFORMATION ABOUT THE MERGER AGREEMENT

The material terms of the merger agreement are summarized below, and a copy of the merger agreement is attached to this proxy statement as Appendix A and is incorporated herein by reference. The following summary does not purport to be complete and is subject to, and qualified by, the full text of the agreement.

On February 21, 2022, Panbela, HoldCo, Merger Sub I, Merger Sub II, and CPP entered into the merger agreement, pursuant to which Panbela agreed to, among other things, install a holding company pursuant to the First Merger and acquire CPP pursuant to the Second Merger. For U.S. federal income tax purposes, it is intended that the mergers, taken together, will qualify as an exchange under Section 351 of the Internal Revenue Code, and the regulations promulgated thereunder.

At the effective time of the Second Merger (“Second Effective Time”), each share of CPP Preferred Stock then issued and outstanding automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio multiplied by the number of shares of CPP Common Stock into which such share was convertible, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Preferred Preference Satisfaction and any Remaining Post-Closing Contingent Payments (each, as defined in the merger agreement). Additionally, each share of CPP Common Stock then issued and outstanding (other than certain excluded shares, “CPP Common Stock”) automatically will be converted into the right to receive (i) a number of shares of HoldCo common stock equal to the Exchange Ratio, plus (ii) a pro-rata share of future cash payments, if any, resulting from the Remaining Post-Closing Contingent Payments. The Preferred Preference Satisfaction will represent the aggregate liquidation preference of the CPP Preferred Stock as of closing and will receive priority of payment in the event any Post-Closing Contingent Payments (as defined in the merger agreement) are due.

The Exchange Ratio will be based on a target proportion of HoldCo common stock to be held by legacy holders of CPP equity securities (determined on a fully diluted basis). The target proportion will result in holders of CPP securities (including options and warrants) beneficially owning approximately 41% of the number of shares of HoldCo common stock outstanding after the Second Merger, unless certain existing CPP indebtedness is fully satisfied sufficiently in advance of closing, in which case it will equal 45%. The number of shares of HoldCo common stock equal to the target proportion will then be divided by the number of shares of CPP Common Stock issued or issuable as of the Second Merger to produce the Exchange Ratio. The parties have agreed to hold back 10% of the shares of HoldCo common stock otherwise issuable to legacy holders of CPP equity securities for a period of up to one year after closing to satisfy certain obligations, including indemnification, by CPP pursuant to the merger agreement.

The potential Post-Closing Contingent Payments are eligible to be paid in cash in connection with the future satisfaction of three milestones after netting out applicable expenses and setoff amounts: (1) 50% of milestone payments and royalties received pursuant to the existing North American license agreement, up to a maximum payout of $25.0 million; (2) 50% of royalty payments received for U.S. sales of Flynpovi in excess of $400.0 million, up to a maximum payout of $15.0 million; and (3) either 35% of any cash amounts originating from the European Union and received pursuant to partnerships involving Flynpovi or 10% of any cash amounts received from efforts to self-market Flynpovi in the European Union, up to an aggregate maximum payout of $20.0 million.

The merger agreement further provides that options to purchase CPP Common Stock automatically will be assumed by HoldCo or terminated at closing, depending upon certain established criteria. Assumed options will be exercisable for shares of HoldCo common stock, in a manner designed to maintain the aggregate fair market value of the award. All other options to purchase CPP Common Stock will be terminated effective as of the Second Merger if not exercised in advance. All warrants to purchase CPP Common Stock will be similarly assumed by HoldCo and adjusted.

	HoldCo Common Stock (#)		Proportion (%)
Shares held by Panbela stockholders (excludes options & warrants per merger agreement)		13,449,117		59.0	%
Maximum shares issuable in exchange for CPP securities (including options & warrants per merger agreement)		9,345,996		41.0	%
Denominator		22,795,113		100.0	%

Actual shares outstanding at closing		20,840,791

The obligations of each of Panbela and CPP to consummate the transactions contemplated by the merger agreement are subject to specified conditions including, among other matters: (i) the approval by Panbela stockholders of the issuance of shares in the Second Merger pursuant to the rules of The Nasdaq Stock Market LLC (“Nasdaq”); (ii) the shares of HoldCo common stock to be issued in connection with the First Merger and Second Merger being approved for listing by Nasdaq, subject to only notice of issuance; and (iii) conversion of a threshold principal amount of outstanding CPP promissory notes. Additionally, Panbela has agreed to take all necessary action to elect its directors to serve as directors of HoldCo and, effective as of the Second Merger, elect each of Mr. Donovan, a current director of CPP, and Mr. Jacob, the chief executive officer and a current director of CPP, to serve as directors of HoldCo, subject to a maximum board size of seven after all of the transactions have been completed. See “INFORMATION ABOUT THE MERGERS—Governance and Management of HoldCo” above for more information.

The merger agreement contains customary representations and warranties from Panbela and CPP. It also contains customary covenants, including providing (i) for each of the parties to use reasonable best efforts to consummate the transactions contemplated in the merger agreement, and (ii) for Panbela and CPP to carry on their respective businesses in the ordinary course of business consistent with past practice during the period between the execution of the merger agreement and the closing. CPP has agreed not to solicit, initiate or propose the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal (as defined in the merger agreement).

The merger agreement contains termination rights for each of Panbela and CPP including, without limitation, in the event that (i) the transactions contemplated in the merger agreement are not consummated by June 30, 2022; (ii) any governmental entity issues a non-appealable final order permanently enjoining the transactions contemplated in the merger agreement; (iii) the Panbela stockholders do not approve the issuance of shares in the Second Merger; or (iv) the other party breaches its representations, warranties or covenants under the merger agreement, subject to customary opportunities to cure such breach, if curable. CPP will be obligated to pay to Panbela a termination fee of $500,000 if the merger agreement is terminated under certain circumstances.

The parties may amend the merger agreement, by action taken or authorized by their boards of directors, at any time before or after approval of the Share Issuance by the stockholders of Panbela. After the stockholders approve the Share Issuance, however, no amendment to the merger agreement may be made that requires the further approval of stockholders unless that further approval is obtained.

RISK FACTORS RELATED TO THE MERGERS, MERGER AGREEMENT

Much like investment in our securities, approval of the Share Issuance involves a high degree of risk. You should consider carefully the following risks in addition to the risks and uncertainties described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, including those under the heading “Risk Factors”, as updated by our subsequent Quarterly Reports on Form 10-Q, and our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, which are incorporated herein by reference, before you decide whether to purchase any of our securities. These risks could materially adversely affect our business, financial condition, results of operations and cash flows, and you may lose part or all of your investment. For more information, see “Where You Can Find More Information.”

We have and expect to incur substantial costs related to the mergers, including the Share Issuance, and subsequent integration efforts.

We have incurred and expect to incur a number of non-recurring costs associated with the mergers and related transactions. These costs include legal, financial advisory, accounting, consulting and other advisory fees, retention, severance and employee benefit-related costs, regulatory fees, closing, integration and other related costs. Some of these costs are payable regardless of whether or not the mergers are completed.

The mergers may be more difficult, costly, or time-consuming than expected, and we may not realize the anticipated benefits of the mergers.

The anticipated benefits of the mergers, including product candidate diversification and growth, may not be realized fully or at all or may take longer to commercialize than expected and integration may result in additional and unforeseen expenses. An inability to realize the full extent of the anticipated benefits of the mergers, as well as any delays encountered in the integration process, could have an adverse effect upon our operating results following the completion of the mergers.

In addition, we and CPP have operated and, until the completion of the mergers, must continue to operate, independently. It is possible that the integration process could result in the loss of one or more key employees, including employees of CPP, the disruption of each company’s ongoing businesses or inconsistencies in standards, controls, procedures, and policies that adversely affect each company’s ability to maintain relationships with clients, customers, depositors, and employees or to achieve the anticipated benefits of the mergers. Integration efforts between the companies may also divert management attention and resources. These integration matters could have an adverse effect on Panbela during this transition period and for an undetermined period after completion of the mergers.

Failure to complete the mergers could negatively impact Panbela.

If the mergers are not completed for any reason, there may be various adverse consequences and we may experience negative reactions from the financial markets and from our suppliers, other vendors and employees. Additionally, if the merger agreement is terminated, the market price of our common stock could decline to the extent that current market prices reflect a market assumption that the mergers will be beneficial and will be completed. We also could be subject to litigation related to any failure to complete the mergers or to perform our obligations under the merger agreement.

We are subject to business uncertainties and contractual restrictions while the mergers are pending.

Uncertainty about the effects of the mergers on our suppliers, other vendors and employees may have an adverse effect on Panbela or CPP. These uncertainties may impair CPP’s and our ability to attract, retain and motivate key personnel until the mergers are completed, and could cause research partners, vendors and others that deal with CPP or Panbela to seek to change existing business relationships, any of which could materially adversely impact our operations and the timing of our clinical development plans.

The merger agreement may be terminated in accordance with its terms and the mergers may not be completed.

The merger agreement is subject to a number of conditions which must be fulfilled in order to complete the mergers. Those conditions include approval of the issuance of shares of common stock by our stockholders; and the absence of any statute, rule, regulation, injunction, order, or decree, that is enacted, entered, promulgated, or enforced and prohibits, prevents, or makes illegal the completion of the mergers, and the absence of any claim, litigation or proceeding initiated and pending or threatened relating to the merger agreement or the mergers or seeking to prevent the completion of the mergers. Each party’s obligation to complete the mergers is also subject to certain additional customary conditions. These conditions to the closing may not be fulfilled in a timely manner or at all, and, accordingly, the mergers may not be completed.

We may not have discovered certain liabilities or other matters related to CPP, which may adversely affect the future financial performance of the combined company.

In the course of the due diligence review that we conducted prior to the execution of the merger agreement, we may not have discovered, or may have been unable to properly quantify, certain liabilities of CPP or other factors that may have an adverse effect on the business, results of operations, financial condition, and cash flows of the combined company after the consummation of the mergers.

Our estimates and judgments related to the acquisition accounting methods used to record the purchase price allocation related to the acquisition of CPP may be inaccurate.

Our management will make significant accounting judgments and estimates related to the application of acquisition accounting of the mergers under GAAP, as well as the underlying valuation models. Our business, operating results, and financial condition could be materially adversely impacted in future periods if the accounting judgments and estimates prove to be inaccurate.

CANCER PREVENTION PHARMACEUTICALS, INC. FINANCIAL INFORMATION

For information about CPP and its subsidiaries’ operations and financial condition, see (i) the audited consolidated financial statements of CPP for the fiscal years ended December 31, 2021 and 2020 and the related notes thereto, which are attached hereto as Appendix C, and (ii) the unaudited pro forma condensed combined financial information, and the related notes thereto, of Panbela as of and for the fiscal year ended December 31, 2021, which are attached hereto as Appendix D.

Management’s Discussion and Analysis of Financial Condition and Results of Operations of Cancer Prevention Pharmaceuticals, Inc.

CPP’s lead investigational new drug product, Flynpovi, is a combination of the polyamine synthesis inhibitor CPP-1X and the non-steroidal anti-inflammatory drug sulindac. CPP-1X alone or in combination with sulindac are potent modulators of polyamines; CPP-1X is an enzyme-activated, irreversible inhibitor of the enzyme ornithine decarboxylase, the first and rate-limiting enzyme in the biosynthesis of polyamines; sulindac facilitates the export and catabolism of polyamines. CPP believes the investigational drug is unique in that it is designed to treat the risk factors (e.g., polyps) that are hypothesized to lead to Familial Adenomatous Polyposis (FAP) surgeries and colon cancer and therefore may have the ability to prevent various types of colon cancer.

Flynpovi and CPP-1X have received orphan drug designation status for FAP in the United States and Europe; there are no currently approved pharmaceutical therapies for FAP. By targeting and treating precursor conditions to colorectal cancer (“CRC”), CPP’s product candidates may address an important and largely unmet medical need, with a market opportunity that CPP believes is upwards of $500 million for FAP.

Both of the principal active ingredients in CPP’s investigational drug candidates (eflornithine and sulindac) have been previously approved individually but not in combination for other uses by the U.S. Food and Drug Administration (“FDA”) and have shown limited side effects at the dosages utilized in FAP studies. Eflornithine, the active ingredient in CPP-1X, has never been approved in oral form, is not on the market in any systemic dosage form, and is not available in any generic form. The combination of eflornithine and sulindac delivered in an oral form, to which CPP has exclusive license rights to commercialize from the Arizona Board of Regents of the University of Arizona (the “University of Arizona”), showed promising results in a National Cancer Institute (“NCI”) supported randomized, placebo-controlled Phase II/III clinical trial to prevent recurrent colon adenomas, particularly high-risk pre-cancerous polyps. These results led to a Phase III program in FAP, and a Phase III program to study colon cancer risk reduction in partnership with the SWOG and the NCI.

For FAP, CPP completed a 171-patient double-blind randomized Phase III clinical trial for the use of Flynpovi in the treatment of FAP in 2019. The trial used a “time to FAP-event” endpoint in patients with lower and upper GI disease, an endpoint recommended by the FDA and European Medicines Agency (“EMA”), which had never been used before. The trial was conducted at 17 sites in North America and Europe, and showed overall positive trends, but missed the primary endpoint for all events in all anatomical locations (upper vs. lower GI). However, the drug combination showed high efficacy in patients with lower GI anatomy, preventing FAP-related surgery. Based on these results, CPP filed a New Drug Application (“NDA”) and a Marketing Authorization Approval (MAA); with the resulting recommendation to conduct an additional trial based on the results of the pivotal study.

In 2021, CPP licensed the U.S. and Canadian rights to Flynpovi to One-Two Therapeutics Assets Limited (“One-Two”), a private commercial-stage specialty pharma company focused on GI and orphan disease. One-Two is pursuing the next step with the FDA and intends to start a new pivotal study.

In addition to the above, CPP has also sponsored with the NCI, a Phase III clinical trial for the use of CPP-1X/sulindac to prevent the recurrence of colon cancer or high-risk adenoma. A grant award made to SWOG funds and supports this Phase III clinical trial, which has been initiated and seeks a target enrollment of approximately 400 colon cancer patients at SWOG’s large network of clinical sites throughout the United States. SWOG is a NCI sponsored cancer research cooperative group that designs and conducts multidisciplinary clinical trials to improve the practice of medicine in preventing, detecting, and treating cancer, and to enhance the quality of life for cancer survivors. SWOG has been awarded this grant by the NCI as a member of the NCI National Clinical Trials Network. According to United States Cancer Statistics published by the American Cancer Society, in the United States in 2015, it is estimated that CRC will be the third most commonly occurring cancer among males and females and the third leading cause of cancer-related deaths. High-risk adenomatous polyps are considered the key risk factor for CRC.

CPP has also supported investigator sponsored trials using CPP-1X for Neuroblastoma and has a partnership with the Children’s Oncology Group (“COG”) for their ongoing study in relapsed/refractory patients. CPP has developed a pediatric-friendly “sachet” form of eflornithine and has supplied the drug through the initial futility analysis in 2021, which was positive.

Finally, CPP has supported an investigator sponsored program, together with the Juvenile Diabetes Research Foundation, using a 250mg single-entity tablet form of eflornithine called CPP-1Xt.

Financial Overview

CPP has incurred losses of $35.7 million since the inception of its business in 2008. For 2021, CPP had net income of approximately $0.3 million and incurred negative cash flow from operations of $0.6 million. CPP expects to continue to incur substantial losses, which will continue to generate negative net cash flows from operating activities as they pursue research and development activities and commercialize their lead asset CPP-1X and initial product candidate, Flynpovi (CPP-1X/Sulindac).

The $0.3 million increase in cash compared to December 31, 2020 was due primarily to $0.9 million net proceeds from financing activities completed during 2021, offset mostly by cash used in operations.

In July 2021, CPP entered into a licensing agreement with One-Two. Under the license agreement, One-Two has licensed the North American development and commercialization rights for CPP’s product candidate, Flynpovi. The agreement included an upfront payment to CPP of up to $5.0 million. As of December 31, 2021, CPP has recognized approximately $4.5 million in revenue related to this agreement. In addition to the upfront payment, CPP is entitled to receive a milestone payment net of certain expenses upon regulatory approval of Flynpovi by the FDA and royalties on net sales in North America. One-Two is responsible for all costs of development and approval in North America.

CPP will need additional funds to continue operations and execute its business plan past December 31, 2021, including completing required future trials and pursuing regulatory approvals in the United States, the European Union and other international markets. CPP has historically financed operations principally from the sale of equity securities and debt as well as non-dilutive capital from collaborations and licensing agreements. While CPP has been successful in the past in obtaining the necessary capital to support operations, there is no assurance that it will be able to obtain additional financing under commercially reasonable terms and conditions, or at all.

On February 21, 2022, CPP entered into a merger agreement to be acquired by Panbela Therapeutics, Inc. The mergers and the other transactions contemplated by the merger agreement, which are subject to certain approvals described herein and the completion of various closing conditions, are expected to close in the second quarter of 2022.

On April 7, 2022, CPP amended the terms of two convertible notes, the 2016 and 2017 Sucampo Notes. The amended terms are described below in Indebtedness.

Results of Operations

Comparison of Results of Operations for Fiscal Years Ended December 31, 2021 and 2020 (in thousands):

	Year ended December 31,
	2021			2020			Percent Change
Revenue	$	4,542		$	–			–

Operating Expenses
Cost of revenue		1,002			–			–
Cost of revenue		1,431			2,392			(40.2	)%
General and administrative		1,193			5,218			(77.1	)%
Operating income (loss)		916			(7,610	)		(112.0	)%


Other (expense) income, net		(602	)		289			(308.3	)%

Net income (loss)	$	314		$	(7,321	)		(104.3	)%

General and administrative (“G&A”) and research and development (“R&D”) expenses for 2021 include approximately $218,000 include non-cash stock-based compensation expense as a result of the issuance of stock options to employees and consultants. The terms and vesting schedules for stock-based awards vary by type of grant and the employment status of the grantee. The awards granted through December 31, 2021 vest based upon time-based and performance conditions. The following table summarizes CPP’s stock-based compensation expense in its Consolidated Statements of Operations for the years ended December 31, 2021 and 2020 (in thousands):

	Year ended December 31,
	2021		2020
General and administrative	$	85	$	214
Research and development		133		200
Total stock-based compensation	$	218	$	414

Revenue

For the year ended December 31, 2021, CPP recognized $4.5 million in revenue related to the upfront milestone payment for the One-Two license described above. If CPP incurs manufacturing obligations on behalf of One-Two, it will recognize additional revenue and cost of revenue for the remaining $0.5 million.

Cost of Revenue

For the year ended December 31, 2021, CPP incurred manufacturing costs of $1.0 million on behalf of its North American licensing partner, One-Two, in preparation for future clinical trials.

G&A Expenses

G&A expenses decreased 40.2% to $1.4 million in 2021 from $2.4 million in 2020. The decrease is due primarily to decreased employee compensation, reduced headcount and lower consulting costs.

R&D Expenses

R&D expenses decreased 77.1% to $1.2 million in 2021, from $5.2 million in 2020. The decrease is due to lower clinical trial costs as CPP completed a major clinical trial in 2020.

Liquidity and Capital Resources

The following table summarizes CPP’s liquidity and capital resources as of December 31, 2021 and 2020 and for each of the fiscal years ended December 31, 2021 and 2020, and is intended to supplement the more detailed discussion that follows (in thousands):

Liquidity and Capital Resources	December 31,
	2021			2020
Cash and cash equivalents	$	696		$	421
Working capital (deficit)	$	(1,052	)	$	(1,681	)

Cash Flow Data	December 31,
	2021			2020
Cash provided by (used in):
Operating Activities	$	(612	)	$	(6,116	)
Investment Activities		–			–
Financing Activities		887			(229	)
Net increase in cash and cash equivalents	$	275		$	(6,345	)

Working Capital (Deficit)

CPP’s total cash was $0.7 million as of December 31, 2021, compared to $0.4 million as of December 31, 2020. As of December 31, 2021, CPP had current liabilities of $2.0 million and a working capital deficit of $1.0 million. As of December 31, 2020, CPP had current liabilities of $2.2 million and a working capital deficit of $1.7 million. Working capital (deficit) is defined as current assets less current liabilities.

Cash Flows

Net Cash Used in Operating Activities

CPP’s net cash used in operating activities was $0.6 million during 2021, compared to $6.1 million during 2020. The net cash used in each of these periods primarily reflects the net loss for these periods and is partially offset by the effects of changes in operating assets and liabilities.

Net Cash Provided by Financing Activities

CPP’s net cash provided by financing activities was $0.8 million for 2021, which represents the net proceeds from the sale of convertible promissory notes in the first half of 2021. Cash used in financing activities in 2020 was $0.2 million and includes $0.3 million in net proceeds from the sale of convertible promissory notes offset by the repayment of debt totaling approximately $0.5 million.

Capital Requirements

As CPP continues to pursue operations and execute its business plan, including the completion of its clinical development plan for the initial product candidate, Flynpovi, in FAP, and pursuing regulatory approvals in the United States, the European Union and other international markets, it expects to continue to incur increasing losses, which will continue to result in negative net cash flows from operating activities.

CPP’s future capital uses and requirements depend on numerous current and future factors. These factors include, but are not limited to, the following:

●

the cost of registrational clinical trial in FAP to be funded by CPP’s licensing partner for FDA approval; and CPP’s ability to seek alignment between EMA and FDA to utilize the results for approval in both territories;

●

the progress of clinical trials required to support applications for regulatory approvals;

●

the cost to implement development efforts for CPP-1X in therapeutic areas outside of FAP;

●

CPP’s ability to demonstrate the safety and effectiveness of the product candidates Flynpovi, CPP-1Xt, and CPP-1Xs;

●

the cost and delays in product development that may result from changes in regulatory oversight applicable to the product candidates Flynpovi, CPP-1Xt, and CPP-1Xs;

●

the market acceptance and level of future sales of CPP’s products;

●

the rate of progress in establishing reimbursement arrangements with third-party payors;

●

the effect of competing technological and market developments; and

●

the costs involved in filing and prosecuting patent applications and enforcing or defending patent claims.

As of December 31, 2021, CPP did not have any existing credit facilities under which funds could be borrowed. CPP has historically financed operations principally from the sale of equity securities and debt, as well as non-dilutive funding from collaborative research sources and licensing partners. While CPP has been successful in the past in obtaining the necessary capital to support operations and is likely to seek additional financing through similar means, there is no assurance that CPP will be able to obtain additional financing under commercially reasonable terms and conditions, or at all.

Indebtedness

CPP’s outstanding principal amount of convertible note obligations were as follows as of December 31, 2021:

	December 31, 2021 (in thousands)
Sucampo Notes	$	10,000
2016 Notes		175
2017 Notes		1,621
2021 Notes		575
Subtotal		12,371
Less unamortized discounts		19
Subtotal		12,352
Less current portion of convertible debt		557
Total long-term portion of convertible debt	$	11,795

Sucampo Notes

In January 2016, CPP issued and sold a convertible promissory note payable to Sucampo AG, now a subsidiary of Mallinckrodt Pharmaceuticals, for $5.0 million (“2016 Sucampo Note”). The 2016 Sucampo Note bears interest at 5% per annum and was originally scheduled to mature on January 31, 2019 unless earlier converted or prepaid. The 2016 Sucampo Note is unsecured and prepayable at the option of CPP. The 2016 Sucampo Note, with any accrued and unpaid interest, is automatically convertible at a 20% discount into CPP’s securities, subject to certain limitations, in the event CPP consummates a future financing with aggregate proceeds of at least $10.0 million (exclusive of any Sucampo investment), whether through a public or a private offering (“Qualified Financing”). In addition, if CPP consummates a sale of substantially all of its assets or a merger, at the election of Sucampo, the unpaid principal balance and any accrued and unpaid interest then payable is convertible into stock based on the most recent financing immediately prior to the sale or merger. Additionally, in the event that a Qualified Financing or such a sale has not occurred prior to the maturity date of the 2016 Sucampo Note, at the election of Sucampo, the unpaid principal balance and any accrued and unpaid interest then payable is convertible into common stock at a price equal to the then most recent fair value of CPP’s common stock. As the 2016 Sucampo Note becomes convertible primarily upon the occurrence of a future event outside the control of CPP, any contingent beneficial conversion feature is measured and recognized when the triggering event occurs, and the contingency has been resolved. As of December 31, 2021, approximately $5.7 million principal and accrued but unpaid interest remained outstanding under the 2016 Sucampo Note.

In September 2017, CPP issued and sold a second convertible promissory note to Sucampo for $5.0 million (“2017 Sucampo Note”) on the same terms and conditions as the 2016 Sucampo Note described above, except that the maturity date of such note was September 6, 2020. As of December 31, 2021, approximately $6.1 million principal and accrued but unpaid interest remained outstanding under the 2017 Sucampo Note.

On August 4, 2018, CPP signed an amendment to both the 2016 Sucampo Note and the 2017 Sucampo Note (collectively, “Sucampo Notes”). Under the amendment, the maturity date of the Sucampo Notes was extended to January 31, 2023.

On April 7, 2022, CPP entered into an agreement with Sucampo AG that, subject to consummation of the Second Merger, will result in (i) a waiver of any acceleration of maturity that could have occurred under the Sucampo Notes in connection with the closing, (ii) conversion immediately before the Second Merger of the entire outstanding principal amount plus all accrued but unpaid interest under the 2016 Sucampo Note into new shares of CPP Series A-2 Preferred Stock based on a price of $3.00 per share, which is consistent with the anticipated terms of conversion for CPP’s other converting indebtedness (as discussed below), and (iii) a restructuring of the 2017 Sucampo Note to: (1) capitalize all principal and accrued but unpaid interest under the 2017 Sucampo Note through the date of the closing, (2) provide for payments of $1.0 million plus accrued but unpaid interest on January 31^st of each of 2023, 2024, 2025, and 2026, with the remaining balance due on January 31, 2027 and (3) provide for HoldCo to guarantee CPP’s obligations after the closing. All or a portion of the first payment due in January of 2023 may become payable earlier if CPP or HoldCo completes a financing on or before January 31, 2023.

For illustrative purposes only, if the 2016 Sucampo Note converted into a closing under the merger agreement as of April 28, 2022, approximately 1,927,300 shares of CPP Series A-2 preferred stock would be issued.

2016 Notes

In 2016, CPP issued convertible notes to existing investors for approximately $2.3 million (the “2016 Notes”) and the net proceeds after issuance expenses were used for development costs and general operations. The 2016 Notes were originally scheduled to mature in January 2018 and bore an interest rate of 8% per annum. The 2016 Notes are unsecured and prepayable at the option of CPP. If neither an IPO nor change of control occurs prior to maturity, the 2016 Note holders have the option to convert the 2016 Notes, including any accrued and unpaid interest, into shares of CPP Common Stock at $6.00 per share. On January 31, 2018, CPP exercised its option to extend maturity of the 2016 Notes through January 2020. The 2016 Notes in the amount of $1.8 million were amended to roll the accrued interest payable on January 31, 2018 of $0.3 million into the outstanding principal balance of the 2016 Notes. At CPP’s election to extend the maturity date of the 2016 Notes, the interest rate increased from 8% per annum to 10% per annum.

Prior to the scheduled maturity in January 2020, CPP offered holders of 2016 Notes several options. As a result, 2016 Notes in the amount of approximately $1.6 million plus accrued interest of $0.3 million were converted into 395,652 shares of CPP’s Series A-1 preferred stock, with fractional shares paid out in cash. In addition, CPP issued to these noteholders warrants to purchase an aggregate of 164,854 shares of CPP Common Stock at an exercise price of $5.00 per share, expiring on January 31, 2023. One 2016 Note, in the amount of approximately $0.1 million, was amended to roll accrued interest payable into the outstanding principal balance of the note, which continues to accrue interest at 10%. In addition, CPP issued the noteholder a warrant to purchase 14,557 shares of CPP Common Stock at an exercise price of $6.00 per share, expiring on January 31, 2023. The principal and interest due under the remaining 2016 Notes were paid off in cash. The holder of the remaining 2016 Note has entered into an agreement with CPP to convert into shares of CPP’s Series A-2 Preferred Stock at a conversion rate equal to $3.00 per share. The outstanding $0.2 million principal balance of the 2016 Notes on December 31, 2021 is scheduled to mature in January 2023. For illustrative purposes only, if the 2016 Notes converted into a closing under the merger agreement as of April 28, 2022, approximately 68,700 shares of CPP Series A-2 Preferred Stock would be issued. None of the 2016 Notes are expected to remain outstanding after the closing.

2017 Notes

In 2017, CPP issued convertible notes to existing and accredited investors in the principal amount of approximately $1.3 million (the “2017 Notes”) and the net proceeds after issuance expenses were used for development cost and general operations. The 2017 Notes were originally scheduled to mature in April 2019 and bore an interest rate of 10% per annum. The 2017 Notes are unsecured and prepayable at the option of CPP. In April 2019, CPP exercised its option to extend maturity of the 2017 Notes through April 2021 by increasing the interest rate to 12% per annum and paying all outstanding accrued interest in the amount of approximately $0.3 million. Prior to the scheduled maturity in April 2021, all of the noteholders elected to roll the outstanding interest on April 30, 2021 into principal and extend maturity of the 2017 Notes through April 2023. Each holder of 2017 Notes has entered into an agreement with CPP to convert into shares of CPP’s Series A-2 Preferred Stock at a conversion rate equal to $3.00 per share. The amended principal balance for the notes is approximately $1.6 million comprised of initial principal and outstanding interest. For illustrative purposes only, if the 2017 Notes converted into a closing under the merger agreement as of April 28, 2022, approximately 604,900 shares of CPP Series A-2 preferred stock would be issued. None of the 2017 Notes are expected to remain outstanding after the closing.

2021 Notes

In January and April of 2021, CPP issued and sold convertible promissory notes to existing and accredited investors in principal amounts totaling approximately $0.6 million (the “2021 Notes”) and net proceeds after issuance expenses were used for general operations. The 2021 Notes are scheduled to mature on December 15, 2022 and bear an interest rate of 10% per annum. The 2021 Notes convert into shares of Series A-2 Preferred Stock of CPP at a conversion rate equal to $3.00 per share. The 2021 Notes are unsecured and prepayable at the option of CPP. For illustrative purposes only, if the 2021 Notes converted into a closing under the merger agreement as of April 28, 2022, approximately 214,400 shares of CPP Series A-2 preferred stock would be issued. None of the 2021 Notes are expected to remain outstanding after the closing.

Other indebtedness

As of December 31, 2021, CPP had a promissory note outstanding and payable to a former development partner. The principal balance of $0.65 million bears an annual interest rate of 4.0% and is scheduled to mature on December 31, 2022.

Accrued and unpaid interest on December 31, 2021:

	December 31, 2021 (in thousands)
Accrued interest on debt	$	2,046
Subtotal		2,046
Less current portion of accrued interest		86
Total long-term portion of accrued interest	$	1,961

Contingencies

CPP’s former chief financial officer has demanded arbitration regarding his dispute of the circumstances of his termination for “cause”, which termination occurred in November 2020. It is CPP’s position that it has no continuing financial obligation to the former employee beyond that which it paid at separation. The former CFO is seeking damages amounting to approximately $296,000, consisting primarily of $265,000 representing one year of his annual salary at termination, plus unused paid-time-off and potential COBRA cost offsets. Per the terms of his employment agreement, the dispute will be resolved through the American Arbitration Association (“AAA”). CPP believes the allegations in the complaint are without merit and intends to vigorously defend itself.

In June 2019, CPP entered into a termination agreement with a former licensing partner, Mallinckrodt Pharmaceuticals, through its Sucampo AG subsidiary (Mallinckrodt), whereby its License Agreement and Master Services Agreement were terminated and all rights under the License Agreement were returned to CPP. The R&D Payment from Mallinckrodt which was unspent development activities in the amount of approximately $2.5 million was paid to Mallinckrodt in June 2019 due to the termination of the License Agreement. If CPP is successful in commercializing CPP-1X/sulindac in North America, it will repay Mallinckrodt for approximately $6.9 million of expenses Mallinckrodt incurred in the development of the product through a 10% royalty on North American sales. As of December 31, 2021, no liability has been recorded for this as no product has been commercialized.

CPP is party to a license agreement with the University of Arizona and, via an Inter-institutional Agreement, the Regents of the University of California on behalf of the University of California, Irvine, to in-license certain patents, provisional patents, clinical trial data, and other intellectual property related to the chemoprevention of cancer, the prevention of polyps and other technologies. The license agreement gives CPP exclusive rights to commercialize products based on this intellectual property. In exchange for its rights to this intellectual property, CPP initially paid the University a nonrefundable license fee of $5,000, agreed to reimburse the University for patent costs, pay annual licensing fees over the next ten years, and granted the University a warrant to acquire equity shares of CPP at a per share price of $0.2404 exercisable through May 2022. CPP has also agreed to pay the University additional milestone payments totaling up to $90,000 upon the achievement of certain research, development and regulatory milestones. Future milestone payments are considered to be contingent consideration and will be accrued when probable of being paid. At December 31, 2021, no milestone payments were probable of being paid.

PANBELA FINANCIAL INFORMATION

For information about Panbela and its subsidiaries’ operations and financial condition, see (i) the audited consolidated financial statements of Panbela for the fiscal years ended December 31, 2021 and 2020 and the related notes thereto, which appear in its Annual Report on Form 10-K for the year ended December 31, 2021, a copy of which is included with this proxy statement, and (ii) the unaudited pro forma condensed combined financial information, and the related notes thereto, of Panbela as of and for the fiscal year ended December 31, 2021, which are attached hereto as Appendix D. For management’s discussion and analysis of financial condition and results of operations of Panbela, please refer to the section titled “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” set forth in the same Annual Report on Form 10-K, which disclosure is incorporated by reference herein.

PROPOSAL 4:
ADJOURNMENT OF THE MEETING

Our stockholders are being asked to approve a proposal that will give Michael Cullen, the Chair of our Board of Directors or his designee, authority to adjourn the Annual Meeting one or more times, if necessary, to solicit additional proxies if there are not sufficient votes to approve the various matters being submitted to stockholders at the time of the Annual Meeting or any adjournment or postponement thereof. If this proposal is approved, the Annual Meeting could be adjourned to any date. Any determination of whether it is necessary to adjourn the Annual Meeting (or any adjournment or postponement thereof) to solicit additional proxies will be made solely by our Board of Directors.

Required Vote and Board Recommendation

The Board of Directors recommends that you vote “FOR”
the approval of authority to adjourn the Annual Meeting.

DELINQUENT SECTION 16(a) REPORTS

Section 16(a) of the Securities and Exchange Act of 1934 requires that our directors, executive officers and beneficial owners of more than 10% of our common stock file initial reports of ownership and reports of changes in ownership with the SEC. Directors, executive officers and beneficial owners of greater than 10% of our common stock are required to furnish us with copies of all Section 16(a) forms they file. Based solely on a review of the copies of such forms furnished to us and written representations from our directors and executive officers, all Section 16(a) filing requirements were met for the fiscal year ended December 31, 2021.

OTHER MATTERS

The Board of Directors is not aware of any matters that are expected to come before the Annual Meeting other than those referred to in this proxy statement. If any other matter should come before the Annual Meeting, the persons named in the accompanying proxy intend to vote the proxies in accordance with their best judgment.

SUBMISSION OF STOCKHOLDER PROPOSALS AND NOMINATIONS

Stockholder proposals intended to be presented at the annual meeting of stockholders to be held in the year 2023 that are requested to be included in the proxy statement for that meeting must be received by us at our principal executive office no later than December 30, 2022. We must receive any other stockholder proposals intended to be presented, and any director nominees for election, at the annual meeting of stockholders in the year 2023 at our principal executive office no earlier than February 8, 2023 and no later than March 10, 2023. Upon timely receipt of any such proposal containing the information required by our bylaws, as amended from time to time, we will determine whether or not to include such proposal in the proxy statement and proxy in accordance with applicable regulations governing the solicitation of proxies.

In addition to satisfying the requirements under our bylaws, to comply with the universal proxy rules (once effective), stockholders who intend to solicit proxies in support of director nominees other than the Company’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act within the deadline provided therein. Accordingly, for the annual meeting of stockholders to be held in the year 2023, we must receive such notice no later than March 26, 2023.

HOUSEHOLDING

We have adopted a procedure approved by the SEC called “householding,” by which certain stockholders who have the same address and appear to be members of the same family receive only one copy of our annual report and proxy statement. Each stockholder participating in householding continues to receive a separate proxy card. Householding reduces both the environmental impact of our annual meetings and our mailing and printing expenses.

If you would like to change your householding election, request that a single copy of the proxy materials be sent to your address, or request a separate copy of the proxy materials, please contact Broadridge Financial Solutions, Inc., by calling (866) 540-7095, through the internet at www.proxyvote.com, by email at sendmaterial@proxyvote.com, or by writing to Broadridge Householding Department, 51 Mercedes Way, Edgewood, New York 11717. We will promptly deliver the notice of internet availability or proxy materials to you upon receipt of your request. If you hold your shares in street name, please contact your bank, broker, or other record holder to request information about householding.

WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and special reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy statements and other information about issuers, like the Company, who file electronically with the SEC. The address of that site is http://www.sec.gov. Copies of these documents may also be obtained by writing our secretary at the address specified under “Additional Information” below.

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

The SEC allows us to incorporate by reference into this proxy statement information contained in documents that we file with it. This means that we can disclose important information to you by referring you to those documents. We hereby incorporate by reference into this proxy statement our Annual Report on Form 10-K for the year ended December 31, 2021, filed on March 25, 2022 and accompanying this proxy statement.

Any statement incorporated by reference in this proxy statement from an earlier dated document that is inconsistent with a statement contained in this proxy statement or in any other document filed after the date of the earlier dated document, but prior to the date hereof, which also is incorporated by reference into this proxy statement, shall be deemed to be modified or superseded for purposes hereof by such statement contained in this proxy statement or in any other document filed after the date of the earlier dated document, but prior to the date hereof, which also is incorporated by reference into this proxy statement.

ADDITIONAL INFORMATION

Panbela’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, accompanies the delivery of this proxy statement and a copy of such annual report, as filed with the SEC, is also available on the Commission’s website, www.sec.gov, and our corporate website, www.panbela.com (under “Investor Relations”). In addition, a copy of the Annual Report on Form 10-K, as amended, may be sent to any stockholder without charge (except for exhibits, if requested, for which a reasonable fee will be charged), by submitting a written request to our Chief Financial Officer and Secretary at:

Panbela Therapeutics, Inc.
712 Vista Boulevard #305
Waconia, Minnesota 55387

Such request must set forth a good faith representation that the requesting party was a holder of record or a beneficial owner of our common stock as of the Record Date.

Appendix A
to Proxy Statement

AGREEMENT AND PLAN OF MERGER

by and among

PANBELA THERAPEUTICS, INC.,

CANARY MERGER HOLDINGS, INC.,

CANARY MERGER SUBSIDIARY I, INC.,

CANARY MERGER SUBSIDIARY II, INC.,

CANCER PREVENTION PHARMACEUTICALS, INC.

and

FORTIS ADVISORS LLC,
as Stockholder Representative

Dated as of February 21, 2022

TABLE OF CONTENTS

Article I. THE TRANSACTIONS
Section 1.01	The Mergers.	2
Section 1.02	Closing.	3
Section 1.03	Effective Time.	3
Section 1.04	Effects of the Mergers.	3
Section 1.05	Organizational Documents.	4
Section 1.06	Directors and Officers.	4
Article II. EFFECT OF THE TRANSACTIONS ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
Section 2.01	Conversion of Capital Stock.	5
Section 2.02	Parent Equity Awards.	7
Section 2.03	Exchange Procedures.	8
Section 2.04	Post-Closing Contingent Payments.	10
Section 2.05	Adjustments.	12
Section 2.06	Withholding Rights.	13
Section 2.07	Lost Certificates.	13
Section 2.08	Treatment of Stock Options and Other Stock-Based Compensation.	13
Section 2.09	Treatment of Warrants.	14
Section 2.10	Tax Treatment.	14
Section 2.11	Dissenting Shares.	15
Section 2.12	Consideration Spreadsheet.	15
Section 2.13	Post-Closing Payment Review and Dispute.	15
Article III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.01	Organization; Standing and Power; Charter Documents; Subsidiaries.	17
Section 3.02	Capital Structure.	18
Section 3.03	Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.	21
Section 3.04	Financial Statements; Undisclosed Liabilities; Off-Balance Sheet Arrangements.	22
Section 3.05	Absence of Certain Changes or Events.	23
Section 3.06	Taxes.	24
Section 3.07	Intellectual Property.	25
Section 3.08	Privacy and Data Security.	27
Section 3.09	Compliance; Permits.	28
Section 3.10	Litigation.	28
Section 3.11	Brokers’ and Finders’ Fees.	29
Section 3.12	Related Person Transactions.	29
Section 3.13	Employee Benefit Issues.	29
Section 3.14	Real Property and Personal Property Matters.	33
Section 3.15	Environmental Matters.	34
Section 3.16	Material Contracts.	34
Section 3.17	Insurance.	36
Section 3.18	Information Supplied.	36
Section 3.19	Anti-Corruption Matters.	36
Section 3.20	FDA and Regulatory Matters	37
Section 3.21	Transactions with Affiliates and Employees.	38
Section 3.22	Anti-Money Laundering.	39
Article IV. REPRESENTATIONS AND WARRANTIES OF PARENT entities
Section 4.01	Organization; Standing and Power; Charter Documents; Subsidiaries.	39

Section 4.02	Capital Structure.	40
Section 4.03	Authority; Non-Contravention; Governmental Consents; Board Approval.	41
Section 4.04	SEC Filings; Financial Statements; Undisclosed Liabilities.	43
Section 4.05	Absence of Certain Changes or Events.	44
Section 4.06	Compliance; Permits.	45
Section 4.07	Litigation.	45
Section 4.08	Brokers.	45
Section 4.09	Information Supplied.	45
Section 4.10	Ownership of Company Common Stock.	46
Section 4.11	HoldCo, Merger Sub I and Merger Sub II.	46
Section 4.12	Intellectual Property.	46
Section 4.13	FDA and Regulatory Matters.	47
Section 4.14	Insurance.	48
Section 4.15	Transactions with Affiliates and Employees.	48
Section 4.16	Sarbanes-Oxley; Internal Accounting Controls.	49
Section 4.17	Tax Status.	49
Section 4.18	Foreign Corrupt Practices.	49
Section 4.19	Anti-Money Laundering.	50
Article V. COVENANTS
Section 5.01	Conduct of Business of the Company.	50
Section 5.02	Conduct of the Business of Parent.	53
Section 5.03	Access to Information; Confidentiality.	54
Section 5.04	No Solicitation.	54
Section 5.05	Preparation of Proxy Statement.	55
Section 5.06	Stockholders Consent.	55
Section 5.07	Parent Stockholders Meeting; Approval by Sole Stockholder of HoldCo, Merger Sub I and Merger Sub II.	56
Section 5.08	Notices of Certain Events.	56
Section 5.09	Employees; Benefit Plans.	57
Section 5.10	Directors’ and Officers’ Indemnification and Insurance.	58
Section 5.11	Reasonable Best Efforts.	59
Section 5.12	Public Announcements.	61
Section 5.13	Anti-Takeover Statutes.	61
Section 5.14	Section 16 Matters.	61
Section 5.15	Listing of HoldCo Common Stock.	61
Section 5.16	Certain Tax Matters.	61
Section 5.17	Obligations of HoldCo, Merger Sub I and Merger Sub II.	61
Section 5.18	Resignations.	61
Section 5.19	New HoldCo Directors.	62
Section 5.20	Further Assurances.	62
Section 5.21	Holdback Share Escrow Account and Escrow Agreement	62
Article VI. CONDITIONS
Section 6.01	Conditions to Each Party’s Obligation to Effect the Transactions.	62
Section 6.02	Conditions to Obligations of Parent Entities.	63
Section 6.03	Conditions to Obligations of the Company.	64
Section 6.04	Frustration of Closing Conditions.	65
Article VII. TERMINATION, AMENDMENT, AND WAIVER
Section 7.01	Termination by Mutual Consent.	65
Section 7.02	Termination by Either Parent or the Company.	65
Section 7.03	Termination by Parent.	66

Section 7.04	Termination by the Company.	67
Section 7.05	Notice of Termination; Effect of Termination.	67
Section 7.06	Fees and Expenses Following Termination.	67
Section 7.07	Amendment.	68
Section 7.08	Extension; Waiver.	68
Article VIII. INDEMNIFICATION
Section 8.01	Survival.	68
Section 8.02	Indemnification.	69
Section 8.03	Certain Limitations.	70
Section 8.04	Right to Set-Off; Exclusive Remedy.	71
Section 8.05	Holdback Shares	71
Article IX. MISCELLANEOUS
Section 9.01	Definitions.	72
Section 9.02	Interpretation; Construction.	85
Section 9.03	Governing Law.	86
Section 9.04	Submission to Jurisdiction.	86
Section 9.05	Waiver of Jury Trial.	87
Section 9.06	Notices.	87
Section 9.07	Entire Agreement.	88
Section 9.08	No Third-Party Beneficiaries.	88
Section 9.09	Severability.	88
Section 9.10	Assignment.	88
Section 9.11	Remedies Cumulative.	88
Section 9.12	Specific Performance.	89
Section 9.13	Counterparts; Effectiveness.	89
Section 9.14	Stockholder Representative.	89

INDEX OF EXHIBITS

Exhibit	Description
Exhibit A	Form of Lock-Up Agreement
Exhibit B	Form of Certificate of Incorporation of HoldCo
Exhibit C	Form of Bylaws of HoldCo
Exhibit D	Form of Certificate of Incorporation of Parent Surviving Corporation
Exhibit E	Form of Certificate of Incorporation of Surviving Corporation
Exhibit F	Form of Replacement Option
Exhibit G	Form of Replacement Warrant

AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this “Agreement”), is entered into as of February 21, 2022, by and among Cancer Prevention Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Panbela Therapeutics, Inc., a Delaware corporation (“Parent”), Canary Merger Holdings, Inc., a Delaware corporation and direct wholly owned subsidiary of Parent (“HoldCo”), Canary Merger Subsidiary I, Inc., a Delaware corporation and a wholly-owned Subsidiary of HoldCo (“Merger Sub I”), Canary Merger Subsidiary II, Inc., a Delaware corporation and a wholly-owned Subsidiary of HoldCo (“Merger Sub II”, and together with Parent, HoldCo and Merger Sub I, the “Parent Entities”), and Fortis Advisors, LLC, a Delaware limited liability company, in its capacity as Stockholder Representative (“Stockholder Representative”). Capitalized terms used herein (including in the immediately preceding sentence) and not otherwise defined herein shall have the meanings set forth in Section 9.01 hereof.

RECITALS

WHEREAS, the parties hereto intend that on the Closing Date, upon the terms and subject to the conditions of this Agreement, Merger Sub I will merge with and into Parent (the “First Merger”), with Parent surviving the First Merger as a wholly owned subsidiary of HoldCo, in accordance with Section 251(g) of the Delaware General Corporation Law (the “DGCL”);

WHEREAS, the parties hereto intend that on the Closing Date, immediately following the First Merger, upon the terms and subject to the conditions of this Agreement, Merger Sub II will merge with and into the Company (the “Second Merger”), with the Company surviving the Second Merger as a wholly owned subsidiary of HoldCo, in accordance with Section 251 of the DGCL;

WHEREAS, the Board of Directors of Parent (the “Parent Board”) has unanimously: (a) determined that it is in the best interests of Parent and its stockholders, and declared it advisable, to enter into this Agreement; and (b) approved the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, including the First Merger (collectively with the Second Merger, the “Transactions”); in each case, in accordance with the DGCL;

WHEREAS, the Parent Board has resolved to recommend that the holders of shares of Parent’s common stock, par value $0.001 per share (the “Parent Common Stock”) approve the issuance of shares of HoldCo common stock, par value $0.001 per share (the “HoldCo Common Stock”), in connection with the Second Merger on the terms and subject to the conditions set forth in this Agreement (the “HoldCo Stock Issuance”);

WHEREAS, the Board of Directors of the Company (the “Company Board”) has unanimously: (a) determined that it is in the best interests of the Company and the holders of shares of the Company’s issued and outstanding capital stock, and declared it advisable, to enter into this Agreement with the Parent Entities; (b) approved the execution, delivery, and performance of this Agreement and the consummation of the Transactions, including the Second Merger; and (c) resolved, subject to the terms and conditions set forth in this Agreement, to recommend adoption of this Agreement by the stockholders of the Company; in each case, in accordance with the DGCL;

WHEREAS, the Board of Directors of HoldCo (the “HoldCo Board”) has approved and declared advisable, this Agreement and the Transactions, including the First Merger and the Second Merger, on the terms and conditions set forth in this Agreement, and Parent, in its capacity as the sole stockholder of HoldCo will, approve and adopt this Agreement by written consent immediately following its execution;

WHEREAS, the Board of Directors of Merger Sub I (the “Merger Sub I Board”) has approved and declared advisable, this Agreement and the Transactions, including the First Merger, on the terms and conditions set forth in this Agreement, and HoldCo, in its capacity as the sole stockholder of Merger Sub I will, approve and adopt this Agreement by written consent immediately following its execution;

WHEREAS, the Board of Directors of Merger Sub II (the “Merger Sub II Board”) has approved and declared advisable, this Agreement and the Transactions, including the Second Merger, on the terms and conditions set forth in this Agreement, and HoldCo, in its capacity as the sole stockholder of Merger Sub II will, approve and adopt this Agreement by written consent immediately following its execution;

WHEREAS, following the execution of this Agreement, the Company shall seek to obtain, in accordance with Section 228 of the DGCL, a written consent of its stockholders approving this Agreement, the Transactions, including the Second Merger, in accordance with Section 251 of the DGCL;

WHEREAS, a portion of the Company Merger Consideration otherwise payable by Parent to the stockholders of the Company in connection with the Second Merger shall be placed in escrow by Parent in the form of Holdback Shares (as defined herein), the release of which shall be contingent upon certain events and conditions, all as set forth in this Agreement and the Escrow Agreement (as defined herein);

WHEREAS, as a condition and inducement to each party’s willingness to consummate the Transactions, on or prior to the Closing, each executive officer and director of the Company and any person owning 5% or more of the issued and outstanding shares of Company Common Stock at and as of the Closing Date shall execute and deliver an applicable lock-up agreement with HoldCo substantially in the form attached hereto as Exhibit A (as the same may be amended, restated, or otherwise modified from time to time after the Closing in accordance with its terms, the “Lock-Up Agreement”), which shall be effective as of the Closing and pursuant to which each such Person shall, subject to the terms and conditions thereof, agree not to effect any sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any shares of HoldCo Common Stock during the lock-up period described therein; and

WHEREAS, the parties desire to make certain representations, warranties, covenants, and agreements in connection with the Transactions and also to prescribe certain terms and conditions to the First Merger and Second Merger, respectively.

NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants, and agreements contained in this Agreement, the parties, intending to be legally bound, agree as follows:

ARTICLE I.
THE TRANSACTIONS

Section 1.01 The Mergers.

(a) Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Merger Sub I shall be merged with and into Parent in accordance with Section 251(g) of the DGCL. As a result of the First Merger, Merger Sub I shall cease to exist and Parent shall continue as the surviving corporation of the First Merger (the “Parent Surviving Corporation”).

(b) On the Closing Date, immediately following the First Effective Time, pursuant to this Agreement and upon the terms and subject to the conditions of this Agreement, Merger Sub II shall be merged with and into the Company in accordance with Section 251 of the DGCL. As a result of the Second Merger, Merger Sub II shall cease to exist and the Company shall continue as the surviving corporation of the Second Merger (the “Surviving Corporation”).

Section 1.02 Closing. Upon the terms and subject to the conditions set forth herein, the closing of the First Merger and the Second Merger (the “Closing”) will take place at 10:00 a.m., Minneapolis time, as soon as practicable (and, in any event, within three Business Days) after the satisfaction or, to the extent permitted hereunder, waiver of all conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted hereunder, waiver of all such conditions), unless this Agreement has been terminated pursuant to its terms or unless another time or date is agreed to in writing by the parties hereto. The Closing shall take place at the offices of Faegre Drinker Biddle & Reath LLP, 90 South Seventh Street, 2200 Wells Fargo Center, Minneapolis, Minnesota 55402, or remotely by exchange of documents and signatures (or their electronic counterparts), unless another place is agreed to in writing by the parties hereto. The actual date of the Closing is hereinafter referred to as the “Closing Date.”

Section 1.03 Effective Time.

(a) Upon the terms and subject to the conditions of this Agreement, as soon as practicable on the Closing Date, the parties hereto shall cause the First Merger to be consummated by filing a certificate of merger with the Secretary of State of the State of Delaware, executed in accordance with, and in such form as is required by, the relevant provisions of the DGCL (the “First Certificate of Merger”), and shall make all other filings, recordings or publications required under the DGCL in connection with the First Merger. The First Merger shall become effective at the time that the properly executed and certified copy of the First Certificate of Merger is filed or, to the extent permitted by applicable Law, at such later time as is agreed to by the parties hereto prior to the filing of such First Certificate of Merger and specified in the First Certificate of Merger (the time at which the First Merger becomes effective is herein referred to as the “First Effective Time”).

(b) Upon the terms and subject to the conditions of this Agreement, immediately following the First Merger, the parties hereto shall cause the Second Merger to be consummated by filing a certificate of merger with the Secretary of State of the State of Delaware executed in accordance with, and in such form as is required by, the relevant provisions of the DGCL (the “Second Certificate of Merger”), and shall make all other filings, recordings or publications required under the DGCL in connection with the Second Merger. The Second Merger shall become effective at the time that the properly executed and certified copy of the Second Certificate of Merger is filed or, to the extent permitted by applicable Law, at such later time as is agreed to by the parties hereto prior to the filing of such Second Certificate of Merger and specified in the Second Certificate of Merger (the time at which the Second Merger becomes effective is herein referred to as the “Second Effective Time”).

Section 1.04 Effects of the Mergers.

(a) At the First Effective Time, the effect of the First Merger shall be as provided in the applicable provisions of the DGCL, this Agreement and the First Certificate of Merger.

(b) At the Second Effective Time, the effect of the Second Merger shall be as provided in the applicable provisions of the DGCL, this Agreement and the Second Certificate of Merger.

Section 1.05 Organizational Documents.

(a) Organizational Documents of HoldCo.

Prior to the First Effective Time, Parent, as the sole stockholder of HoldCo, and HoldCo shall take all requisite action to cause HoldCo’s certificate of incorporation and bylaws in effect immediately following the First Effective Time to be in the forms attached to this Agreement as Exhibit B and Exhibit C, respectively, which shall comply with the requirements of Section 251(g) of the DGCL, and, pursuant to which, the name of HoldCo shall be changed, effective as of the First Effective Time, to “Panbela Holdings, Inc.”

(b) Organizational Documents of Parent Surviving Corporation.

At the First Effective Time, the certificate of incorporation of the Parent Surviving Corporation shall be in the form attached to this Agreement as Exhibit D (which shall comply with the requirements of Section 251(g) of the DGCL), until thereafter changed or amended as provided therein or by applicable Law. As of the First Effective Time, the name of the Parent Surviving Corporation will be Panbela Therapeutics, Inc. At the First Effective Time, the bylaws of the Parent Surviving Corporation shall be amended to read in their entirety as the bylaws of Merger Sub I (except that references to the name of Merger Sub I shall be replaced by references to the name of the Parent Surviving Corporation), until thereafter amended in accordance with applicable Law.

At the Second Effective Time, the certificate of incorporation of the Surviving Corporation shall be in the form attached to this Agreement as Exhibit E, until, subject to Section 5.10(a), thereafter changed or amended as provided therein or by applicable Law. As of the Second Effective Time, the name of the Surviving Corporation will be Cancer Prevention Pharmaceuticals, Inc. At the Second Effective Time, the bylaws of the Surviving Corporation shall be amended to read in their entirety as the bylaws of Merger Sub II (except that references to the name of Merger Sub II shall be replaced by references to the name of the Surviving Corporation), until, subject to Section 5.10(a), thereafter amended in accordance with applicable Law.

Section 1.06 Directors and Officers.

(a) Directors and Officers of HoldCo.

Prior to the Closing, Parent, as the sole stockholder of HoldCo, and HoldCo shall take all action necessary to elect as directors of HoldCo effective as of the First Effective Time the persons who are the directors of Parent immediately prior to the First Effective Time, and to elect, effective at the Second Effective Time, each of Daniel J. Donovan and Jeffrey E. Jacob (the “Company Appointed Directors”), each to hold office in accordance with the HoldCo Certificate of Incorporation and the HoldCo Bylaws, and appoint the persons who are the officers of Parent immediately prior to the First Effective Time as officers holding the same offices of HoldCo effective as of the First Effective Time, each such person to hold office in accordance with the HoldCo Certificate of Incorporation and the HoldCo Bylaws. Company shall provide, and shall cause the Company Appointed Directors to provide, the Parent Entities with such information as is reasonably requested by the Parent Entities concerning the Company Appointed Directors, as is required to be disclosed under applicable Law or stock exchange regulations, including the completion of Parent’s current standard director and officer questionnaire, in each case at least ten (10) Business Days prior to the Closing Date.

(b) Directors and Officers of Parent Surviving Corporation.

The directors of Merger Sub I immediately prior to the First Effective Time shall be the directors of Parent Surviving Corporation from and after the First Effective Time, each to hold office in accordance with the certificate of incorporation and the bylaws of Parent Surviving Corporation. The officers of Merger Sub I immediately prior to the First Effective Time shall be the officers of Parent Surviving Corporation from and after the First Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of Parent Surviving Corporation.

The directors of Merger Sub II immediately prior to the Second Effective Time shall be the directors of Surviving Corporation from and after the Second Effective Time, each to hold office in accordance with the certificate of incorporation and the bylaws of Surviving Corporation. The officers of Merger Sub II immediately prior to the Second Effective Time shall be the officers of Surviving Corporation from and after the Second Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of Surviving Corporation.

ARTICLE II.
EFFECT OF THE TRANSACTIONS ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES

Section 2.01 Conversion of Capital Stock.

(a) First Merger.

At the First Effective Time, by virtue of the First Merger and without any action on the part of any Parent Entity, the Company, or the holders of any of the following securities:

(i) Each share of Parent Common Stock issued and outstanding immediately prior to the First Effective Time (other than any shares of Parent Common Stock to be cancelled pursuant to Section 2.01(a)(iii)) shall be converted into one (1) share of validly issued, fully paid and nonassessable HoldCo Common Stock. All such shares of Parent Common Stock that were issued and outstanding immediately prior to the First Effective Time shall no longer be outstanding and shall automatically be cancelled and retired and each certificate or certificates (each, a “Parent Stock Certificate”) which immediately prior to the First Effective Time represented any such shares of Parent Common Stock or book-entry shares (each, a “Parent Book-Entry Share”) which immediately prior to the First Effective Time represented shares of Parent Common Stock shall thereafter represent the shares of HoldCo Common Stock into which they converted.

(ii) Each share of Merger Sub I Common Stock issued and outstanding immediately prior to the First Effective Time shall continue as one share of common stock of Parent Surviving Corporation, which, except as provided in Section 2.01(a)(iii), shall constitute the only outstanding shares of common stock of Parent Surviving Corporation.

(iii) Each share of Parent Common Stock held in the treasury of Parent, if any, immediately prior to the First Effective Time shall be cancelled and extinguished without any conversion thereof.

(b) Second Merger.

At the Second Effective Time, by virtue of the Second Merger and without any action on the part of any Parent Entity, the Company, or the holders of any of the following securities:

(i) Each share of Company Common Stock or Company Preferred Stock that is owned by Parent or the Company (as treasury stock or otherwise) or any of their respective direct or indirect wholly owned Subsidiaries as of immediately prior to the Second Effective Time (the “Company Cancelled Shares”) will automatically be cancelled and retired and will cease to exist, and no consideration will be delivered in exchange therefor.

(ii) Each share of Company Common Stock issued and outstanding immediately prior to the Second Effective Time (other than Company Cancelled Shares and Dissenting Shares) will be converted solely into the right to receive: (i) a number of validly issued, fully paid and nonassessable shares of HoldCo Common Stock equal to the Exchange Ratio; plus (ii) a right to receive a Pro-Rata Share of any Remaining Post-Closing Contingent Payments (collectively, the “Common Stock Merger Consideration”).

(iii) Each share of Company Preferred Stock issued and outstanding immediately prior to the Second Effective Time (other than Company Cancelled Shares and Dissenting Shares) will be converted solely into the right to receive (i) a number of validly issued, fully paid and nonassessable shares of HoldCo Common Stock equal to (x) the number of shares of Company Common Stock into which such share of Company Preferred Stock is eligible to be converted, multiplied by (y) the Exchange Ratio; plus (ii) a contingent right to receive its Pro-Rata Share of the Preferred Preference Satisfaction and a Pro-Rata Share of any Remaining Post-Closing Contingent Payment (collectively the “Preferred Stock Merger Consideration” and, together with the Common Stock Merger Consideration and the initial balance of the Representative Expense Fund, the “Company Merger Consideration”).

(iv) All shares of Company Capital Stock that were issued and outstanding immediately prior to the Second Effective Time shall no longer be outstanding and shall automatically be cancelled and retired and each certificate or certificates (each, a “Company Stock Certificate”) which immediately prior to the Second Effective Time represented any such shares of Company Capital Stock or book-entry shares (each, a “Company Book-Entry Share”) which immediately prior to the Second Effective Time represented shares of Company Capital Stock shall cease to have any rights with respect thereto, except the right to receive the Company Merger Consideration in accordance with Section 2.03 hereof.

(v) Each share of Merger Sub II Common Stock issued and outstanding immediately prior to the Second Effective Time shall continue as one share of common stock of Surviving Corporation, which, except as provided in (b)(ii), shall constitute the only outstanding shares of common stock of Surviving Corporation.

No fractional shares of HoldCo Common Stock shall be issued in connection with the Second Merger, and no certificates or scrip for any such fractional shares shall be issued, and such fractional share interests shall not entitle the owner thereof to vote or to any rights as a holder of HoldCo Common Stock. If the product of the number of shares a Company stockholder holds immediately prior to the Second Effective Time multiplied by the Exchange Ratio would result in the issuance of a fractional share of HoldCo Common Stock, that product will be rounded down to the nearest whole number of shares of HoldCo Common Stock.

(d) Holdback Share Escrow Account. Parent, as the sole stockholder of HoldCo, and HoldCo shall take all action necessary to deposit with the Escrow Agent, to such account or accounts of the Escrow Agent as will have been designated to HoldCo at least three Business Days prior to the Closing Date, a number of shares of HoldCo Common Stock equal to the product of (A) the number of shares of HoldCo Common Stock issuable pursuant to Section 2.01(b)(ii) and Section 2.01(b)(iii), multiplied by (B) ten percent (10%), rounded up to the nearest whole share (collectively, the “Holdback Shares”), to be held in an escrow account (the “Holdback Share Escrow Account”) to be established under the Escrow Agreement.

Section 2.02 Parent Equity Awards.

(a) Parent Equity Plans. At the First Effective Time, HoldCo will assume and continue all of Parent’s equity incentive plans, including its 2011 Stock Option Plan and its 2016 Equity Incentive Plan.

(b) Parent Stock Options. At the First Effective Time, by virtue of the First Merger and without any action on the part of the holders thereof, each Parent Stock Option granted under any Parent Stock Plan that is outstanding as of immediately prior to the First Effective Time shall be assumed by HoldCo and shall be converted into an option to purchase HoldCo Common Stock (a “HoldCo Stock Option”) with the same terms and conditions (including with respect to vesting) applicable to the corresponding Parent Stock Option under the applicable Parent Stock Plan and Parent Equity Award as of immediately prior to the First Effective Time.

(c) Parent RSUs. At the First Effective Time, by virtue of the First Merger and without any action on the part of the holders thereof, each Parent RSU granted under any Parent Stock Plan that is outstanding as of immediately prior to the First Effective Time shall be assumed by HoldCo and shall be converted into an award of restricted stock units representing the right to receive shares of HoldCo Common Stock (a “HoldCo RSU”) with the same terms and conditions (including with respect to vesting) applicable to the corresponding Parent RSU under the applicable Parent Stock Plan and Parent Equity Award as of immediately prior to the First Effective Time and representing the right to receive a number of whole shares of HoldCo Common Stock equal to the number of shares of Parent Common Stock subject to such Parent Equity Award as of immediately prior to the Effective Time.

(d) HoldCo Actions. Parent and HoldCo shall take all actions necessary to provide for the treatment of the Parent Equity Awards as set forth in the foregoing provisions of this Section 2.02, and HoldCo shall take all actions necessary to reserve for issuance a number of shares of HoldCo Common Stock in respect of the Parent Equity Awards assumed and converted pursuant to this Section 2.02. As of the First Effective Time, HoldCo shall assume the Parent Stock Plans, including (i) all of the obligations with respect to the Parent Equity Awards, as assumed and converted as set forth in the foregoing provisions of this Section 2.02 and (ii) with respect to any number of shares of Parent Common Stock that remain (or may again become) available for future issuance thereunder (“Remaining Parent Plan Shares”), subject to any limitations under applicable Law or any applicable securities exchange listing requirements. As soon as practicable following the First Effective Time, HoldCo shall file one or more appropriate registration statement or registration statements with respect to the HoldCo Stock Options and HoldCo RSUs under this Section 2.02 and all shares of HoldCo Common Stock that may be issued in connection with such HoldCo Stock Options and HoldCo RSUs and the Remaining Parent Plan Shares and shall maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such awards remain outstanding.

Section 2.03 Exchange Procedures.

(a) Exchange Agent; Exchange Fund. Prior to the First Effective Time, Parent and HoldCo shall appoint an exchange agent (the “Exchange Agent”) to act as the agent for the purpose of paying the Company Merger Consideration for the Company Stock Certificates and the Company Book-Entry Shares. At or promptly following the Second Effective Time, HoldCo shall deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent and Escrow Agent, as contemplated hereunder certificates representing the shares of HoldCo Common Stock to be issued as Company Merger Consideration (or make appropriate alternative arrangements if uncertificated shares of HoldCo Common Stock represented by book-entry shares will be issued). In addition, HoldCo shall deposit or cause to be deposited with the Exchange Agent, as necessary from time to time after the Second Effective Time, any Post-Closing Contingent Payments, dividends, or other distributions, if any, to which the Participating Holders may be entitled, with both a record and payment date after the Second Effective Time and prior to the surrender of the Company Common Shares in exchange for such HoldCo Common Stock. Such cash and shares of HoldCo Common Stock, together with any dividends or other distributions deposited with the Exchange Agent and Escrow Agent, as applicable, pursuant to this Section 2.03(a), are referred to collectively in this Agreement as the “Exchange Fund.”

(b) Procedures for Surrender; No Interest. Promptly after the Second Effective Time, HoldCo shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Capital Stock at the Second Effective Time, whose Company Capital Stock was converted pursuant to Section 2.01(b) into the right to receive the applicable Company Merger Consideration, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Company Stock Certificates or transfer of the Company Book-Entry Shares to the Exchange Agent, and which letter of transmittal will be in customary form and have such other provisions as HoldCo and the Surviving Corporation may reasonably specify) for use in such exchange. Each holder of shares of Company Capital Stock that have been converted into the right to receive the Company Merger Consideration shall be entitled to receive the Company Merger Consideration (minus the stockholder’s Pro Rata Share of the Holdback Shares) into which such shares of Company Capital Stock have been converted pursuant to Section 2.01(b) in respect of the Company Capital Stock represented by a Company Stock Certificate or Company Book-Entry Share, and any dividends or other distributions pursuant to Section 2.03(g) upon: (i) surrender to the Exchange Agent of a Company Stock Certificate; or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Company Book-Entry Shares; in each case, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent. No interest shall be paid or accrued upon the surrender or transfer of any Company Stock Certificate or Company Book-Entry Share. Upon payment of the Company Merger Consideration pursuant to the provisions of this Article II, each Company Stock Certificate or Company Book-Entry Share so surrendered or transferred, as the case may be, shall immediately be cancelled.

(c) Investment of Exchange Fund. Until disbursed in accordance with the terms and conditions of this Agreement, the cash in the Exchange Fund will be invested by the Exchange Agent, as directed by HoldCo or the Surviving Corporation. No losses with respect to any investments of the Exchange Fund will affect the amounts payable to the holders of Company Stock Certificates or Company Book-Entry Shares. Any income from investment of the Exchange Fund will be payable to HoldCo or the Surviving Corporation, as HoldCo directs.

(d) Payments to Non-Registered Holders. If any portion of the Company Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Stock Certificate or the transferred Company Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that: (i) such Company Stock Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Company Book-Entry Share shall be properly transferred; and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Company Stock Certificate or Company Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

(e) Full Satisfaction. All Company Merger Consideration paid upon the surrender of Company Stock Certificates or transfer of Company Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate or Company Book-Entry Shares, and from and after the Second Effective Time, there shall be no further registration of transfers of shares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Second Effective Time, Company Stock Certificates or Company Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged as provided in this Article II.

(f) Termination of Exchange Fund. Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Capital Stock twelve months after the Second Effective Time shall be returned to HoldCo, upon demand, and any such holder who has not exchanged shares of Company Capital Stock for the Company Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to HoldCo (subject to abandoned property, escheat, or other similar Laws), as general creditors thereof, for payment of the Company Merger Consideration without any interest. Notwithstanding the foregoing, HoldCo shall not be liable to any holder of shares of Company Capital Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat, or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Capital Stock five years after the Second Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of HoldCo free and clear of any claims or interest of any Person previously entitled thereto.

(g) Distributions with Respect to Unsurrendered Shares of Company Common Stock. All shares of HoldCo Common Stock to be issued pursuant to the Second Merger shall be deemed issued and outstanding as of the Second Effective Time and whenever a dividend or other distribution is declared by HoldCo in respect of the HoldCo Common Stock, the record date for which is after the Second Effective Time, that declaration shall include dividends or other distributions in respect of all shares issuable pursuant to this Agreement. No dividends or other distributions in respect of the HoldCo Common Stock shall be paid to any holder of any unsurrendered Company Common Share until the Company Stock Certificate (or affidavit of loss in lieu of the Company Stock Certificate as provided in Section 2.06) or Company Book-Entry Share is surrendered for exchange in accordance with this Section 2.03. Subject to the effect of applicable Laws, following such surrender, there shall be issued or paid to the holder of record of the whole shares of HoldCo Common Stock issued in exchange for Company Common Shares in accordance with this Section 2.03, without interest: (i) at the time of such surrender, the dividends or other distributions with a record date after the Second Effective Time theretofore payable with respect to such whole shares of HoldCo Common Stock and not paid; and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of HoldCo Common Stock with a record date after the Second Effective Time but with a payment date subsequent to surrender.

Section 2.04 Post-Closing Contingent Payments. Subject to the terms and conditions herein, including the preference provided to the holders of Company Preferred Stock set forth in Section 2.04(d), after the Second Effective Time all of the following payments (collectively, the “Post-Closing Contingent Payments”) will be distributed to Participating Holders in accordance with their Pro-Rata Shares as set forth on the Consideration Spreadsheet:

(a) Milestone-Based Payment. With respect to milestone payments and royalties paid to HoldCo or its Affiliate pursuant to the 12T License (collectively, “12T Payments”), Participating Holders will be entitled to receive up to a maximum aggregate amount of $25.0 million as follows:

(i) First, Parent will be entitled to retain all 12T Payments until it has received, net of any royalty payments to Sucampo AG, an aggregate amount equal to all amounts paid or payable, whether or in the form of cash or any other consideration, pursuant to the Sucampo Notes (the “Sucampo Debt Obligations”); then

(ii) Participating Holders will be entitled to receive an amount equal to (x) fifty percent (50%) of all 12T Payments, less (y) royalty payments, if any, due to Sucampo AG with respect to the same 12T Payment.

(b) Royalty-Based Payment. With respect to any royalty payments for U.S. sales of Flynpovi in excess of $400.0 million paid to HoldCo or its Affiliate pursuant to the 12T License, Participating Holders will be entitled to receive an amount equal to fifty percent (50%) of such excess payments, up to a maximum aggregate amount of $15.0 million.

(c) EU-Based Payment. As long as no further pivotal clinical trials are necessary to as determined by European Medicines Agency (“EMA”) to gain EMA approval for Flynpovi, Participating Holders will be entitled to receive up to a maximum aggregate amount of $20.0 million in the form of either:

(i) thirty five percent (35.0%) of any cash amounts originating from the European Union and received by HoldCo or any of its Affiliates for licenses or partnerships involving Flynpovi, net of all costs relating to obtaining European Medicines Agency approval, including, for example, preparation of submission and filing for regulatory approval, marketing access data, key opinion leader development, pricing data, and necessary post-marketing studies (collectively, “EMA Approval Costs”); or

(ii) ten percent (10.0%) of any cash amounts received by HoldCo or any of its Affiliates directly from efforts to self-market Flynpovi in the European Union, net of EMA Approval Costs and any further cost of product sold or costs to market and sell product (including any costs relating to the creation, maintenance and support of internal sales and marketing functions).

(d) Order of Preference.

(i) Prior and in preference to any payment to any Participating Holders pursuant to this Section 2.04, the first $100,000 of Post-Closing Contingent Payments otherwise payable to Participating Holders will be contributed to the Representative Expense Fund (unless waived in a writing signed by the Stockholder Representative), and the next $100,000 of Post-Closing Contingent Payments otherwise payable to Participating Holders will be paid to Parent as reimbursement for the initial balance of the Representative Expense Fund. All aggregate limitations and maximum amounts set forth in this Section 2.04 include the foregoing payments with respect to the Representative Expense Fund.

(ii) Prior and in preference to any payment to the holders of Company Capital Stock pursuant to this Section 2.04, the holders of Company Preferred Stock who receive the Preferred Stock Merger Consideration shall first be entitled to receive the Post-Closing Contingent Payments, net of any expenses pursuant to Section 2.04(g), as consideration for their Company Preferred Stock until such holders have received aggregate Post-Closing Contingent Payments, inclusive of any expenses pursuant to Section 2.04(g), equal to the liquidation preference of such shares of Company Preferred Stock, including accrued but unpaid dividends up to but not including the Effective Date, as set forth in the Company’s Certificate of Incorporation as of Closing (the “Preferred Preference Satisfaction”) and no more. Once the Preferred Preference Satisfaction has been paid in full, then the Participating Holders will be entitled to receive their Pro-Rata Shares of any Remaining Post-Merger Consideration. The Preferred Preference Satisfaction will be paid to each participating holder on a pro-rata basis based on a fraction expressed as a percentage equal to (i) the number of shares of Company Preferred Stock held immediately before Closing, divided by (ii) the aggregate number of shares of Company Preferred Stock issued an outstanding immediately before Closing.

(e) Timing. HoldCo will use commercially reasonable efforts to ensure that each Post-Closing Contingent Payment is dispatched within 30 days after the end of the calendar quarter in which HoldCo or its Affiliate receives the payment that resulted in such Post-Closing Contingent Payment (if such day is not a Business Day, the next Business Day thereafter).

(f) Limitations. The Post-Closing Contingent Payments represent only contingent rights to receive payments from HoldCo, subject to the terms set forth in this Agreement. The maximum aggregate amount of Contingent Payments that Participating Holders are eligible to receive is $60,000,000. Each Contingent Payment is personal to the Participating Holder and is and will remain nontransferable for any reason other than by (i) operation of law or by will, intestacy or the laws of descent and distribution; (ii) transfer by instrument to an inter vivos or testamentary trust in which the rights are to be passed to beneficiaries upon the death of the trustee; (iii) transfers made pursuant to a court order of a court of competent jurisdiction (such as in connection with divorce, bankruptcy or liquidation); (iv) if the holder is a partnership or limited liability company, a distribution by the transferring partnership or limited liability company to its partners or members, as applicable; or (v) a sale or transfer made in connection with the complete or partial dissolution, liquidation, wind-down or termination of any corporation, limited liability company, partnership, investment fund or other entity (including a consolidation or merger, sale of assets, portfolio sale or other similar transaction); provided that, in each case, written notice of such assignment and transfer shall be promptly delivered to each of HoldCo and the Stockholder Representative by the transferor or assignor (or such transferor’s or assignor’s estate), which notice shall expressly set forth the transferor or assignor and the transferee or assignee, the rights to which such transfer or assignment related and the effective date of such transfer; and, provided, further, that as a condition to such transfer or assignment, the parties to such transfer or assignment shall agree to provide to each of HoldCo and the Stockholder Representative, at their respective request, any additional evidence of the transfer or assignment that HoldCo or the Stockholder Representative, as the case may be, may reasonably request. None of the Parent Entities, the Company, or any of their respective Affiliates or the Stockholder Representative shall give effect to any purported assignment or transfer made in contravention of this Section 2.04(f). Following any assignment or transfer permitted under this ‎Section 2.04(f) and prior to the payment of any subsequent Post-Closing Contingent Payment (or upon HoldCo’s reasonable request), the Stockholder Representative shall deliver to HoldCo an updated Consideration Spreadsheet, which shall be considered the Consideration Spreadsheet for all purposes hereunder. Any attempted assignment, pledge, hypothecation, transfer or other disposition of a Post-Closing Contingent Payment (other than as set forth in the preceding sentence) shall be null and void. The Post-Closing Contingent Payments are not in any way related to any individual’s employment with the Company, Parent, or any of their respective Affiliates, and will not be construed as giving any person the right to be retained in the employ of a member of the Company, Parent, or any of their respective affiliates, nor will it affect in any way the right of a person, the Company, Parent, or any of their respective Affiliates to terminate such employment or position at any time, with or without cause. Furthermore, each of the Parties, including the Stockholder Representative (on behalf of all Persons represented), hereby acknowledge that the achievement of any of the prerequisites for the Post-Closing Contingent Payments is uncertain and that HoldCo and its Affiliate may not achieve any of the prerequisites, and it cannot be guaranteed that HoldCo or any of its Affiliates will be required to pay any Post-Closing Contingent Payments at all. The Parties understand and agree that (1) the Post-Closing Contingent Payments are an integral part of the Company Merger Consideration; (2) the rights to receive such amounts will not be represented by any form of certificate, are not transferable except by operation of law, and do not constitute an equity or ownership interest in HoldCo or any other entity; (3) no Person entitled to a Post-Closing Contingent Payment will have rights as a stockholder, option holder or warrant holder of HoldCo or any other entity as a result of its right to receive the Post-Closing Contingent Payments; and (4) no interest is payable with respect to any Post-Closing Contingent Payment.

(g) Payments to Advisers. The amount of Post-Closing Contingent Payment(s) due to any Person pursuant to this Section 2.04 will be net of applicable Brokers’ Fees due for or on behalf of the Company or any of its Affiliates pursuant to any agreement in existence as of immediately prior to the Second Effective Time, including any payments due to the Company Financial Advisor. All aggregate limitations and maximum amounts set forth in this Section 2.04 include any such Brokers’ Fees paid in connection with Post-Closing Contingent Payment(s).

(h) Payments to Stockholder Representatives. The amount of Post-Closing Contingent Payment(s) due to any Person pursuant to this Section 2.04 will be net of applicable payments due for or on behalf of the Company or any of its Affiliates pursuant to the Stockholder Representative Engagement Agreement, including any payments due to the Stockholder Representative and expenses otherwise incurred by any Parent Entity in connection with the dispatch of a Post-Closing Contingent Payment. All aggregate limitations and maximum amounts set forth in this Section 2.04 include any such amount paid in connection with Post-Closing Contingent Payment(s).

Section 2.05 Adjustments.

Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the First Effective Time, any change in the outstanding shares of capital stock of the Company or the Parent Common Stock shall occur (other than the issuance of additional shares of capital stock of the Company or Parent as permitted by this Agreement), including by reason of any reclassification, recapitalization, stock split (including a reverse stock split), or combination, exchange, readjustment of shares, or similar transaction, or any stock dividend or distribution paid in stock, the Exchange Ratio and any other amounts payable pursuant to this Agreement shall be appropriately adjusted to reflect such change; provided, however, that this sentence shall not be construed to permit Parent or the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.

Section 2.06 Withholding Rights.

Each of the Exchange Agent, Parent Entities, and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article II such amounts as may be required to be deducted and withheld with respect to the making of such payment under any Tax Laws. To the extent that amounts are so deducted and withheld by the Exchange Agent, Parent Entities, or the Surviving Corporation, as the case may be, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which the Exchange Agent, Parent Entities, or the Surviving Corporation, as the case may be, made such deduction and withholding.

Section 2.07 Lost Certificates.

If any Company Stock Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, or destroyed and, if required by HoldCo, the posting by such Person of a bond, in such reasonable amount as HoldCo may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue, in exchange for such lost, stolen, or destroyed Company Stock Certificate, the Company Merger Consideration to be paid in respect of the shares of Company Capital Stock formerly represented by such Company Stock Certificate as contemplated under this Article II.

Section 2.08 Treatment of Stock Options and Other Stock-Based Compensation.

(a) Company Stock Options. As of a Business Day no earlier than 30 days prior to the First Effective Time, each outstanding Company Stock Option will become vested in full. As of the Second Effective Time, each option to acquire shares of Company Common Stock (each, a “Company Stock Option”) that (i) is outstanding under any Company Stock Plan immediately prior to the Second Effective Time and (ii) has an exercise price equal to or less than the Maximum Option Exercise Price, shall be, by virtue of the Second Merger and without any action on the part of the holder thereof, or any other Person, be assumed by HoldCo and shall be converted into a HoldCo Stock Option in accordance with this Section 2.08. Each such HoldCo Stock Option as so assumed and converted shall continue to have, and shall be subject to, the substantially same terms and conditions as applied to the Company Stock Option immediately prior to the Second Effective Time. As of the Second Effective Time, each such HoldCo Stock Option as so assumed and converted shall become an option to acquire that number of whole shares of HoldCo Common Stock (rounded down to the nearest whole share) equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option; and (ii) the Exchange Ratio, at an exercise price per share of HoldCo Common Stock (rounded up to the nearest whole cent) equal to the quotient obtained by dividing (A) the exercise price per share of Company Common Stock of such Company Stock Option by (B) the Exchange Ratio; provided, that the exercise price and the number of shares of HoldCo Common Stock subject to the HoldCo Stock Option shall be determined in a manner consistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and, in the case of Company Stock Options that are intended to qualify as incentive stock options within the meaning of Section 422 of the Code, consistent with the requirements of Section 424(a) of the Code. Each such HoldCo Stock Option issued in replacement for a Company Stock Option will be substantially in the form attached hereto as Exhibit F. Each other Company Stock Option that (i) is outstanding under any Company Stock Plan immediately prior to the Second Effective Time but (ii) has an exercise price greater than the Maximum Option Exercise Price will terminate and be cancelled as of immediately prior to the Second Merger, without any consideration being payable in respect thereof, and have no further force or effect.

(b) Company Restricted Shares. The Company shall take all requisite action so that, at the Second Effective Time, each share of Company Common Stock subject to vesting, repurchase, or other lapse of restrictions (a “Company Restricted Share”) that is outstanding under any Company Stock Plan as of immediately prior to the Second Effective Time shall, by virtue of the Second Merger and without any action on the part of the holder thereof, be assumed by HoldCo and shall be converted into a HoldCo Restricted Share in accordance with this Section 2.08. Each HoldCo Restricted Share shall continue to have and be subject to substantially the same terms and conditions as were applicable to such Company Restricted Share immediately before the Second Effective Time (including vesting, repurchase, or other lapse restrictions). As of the Second Effective Time, each such holder of Company Restricted Shares so assumed and converted will receive that number of whole HoldCo Restricted Shares equal to the product (rounded down to the nearest whole number) of: (i) the number of shares of Company Restricted Shares held by that holder as of immediately prior to the Second Effective Time; and (ii) the Exchange Ratio.

At or prior to the Second Effective Time, the Company, the Company Board, and the compensation committee of such board, as applicable, shall adopt any resolutions and take any actions (including obtaining any employee consents) that may be necessary to effectuate the provisions of Section 2.08(a) and Section 2.08(b).

(d) HoldCo Actions.

At or prior to the Second Effective Time, as the sole stockholder of HoldCo, and HoldCo shall take all action necessary to reserve for future issuance a number of shares of HoldCo Common Stock at least equal to the number of shares of HoldCo Common Stock that will be subject to HoldCo Equity Awards as a result of the actions contemplated by this Section 2.08.

Section 2.09 Treatment of Warrants. As of the Second Effective Time, each warrant to acquire shares of Company Common Stock (each, a “Company Warrant”) that is outstanding immediately prior to the Second Effective Time, shall be, by virtue of the Second Merger and without any action on the part of the holder thereof, or any other Person, be assumed by HoldCo and shall be converted into a HoldCo Warrant in accordance with this Section 2.09. Each such HoldCo Warrant as so assumed and converted shall continue to have, and shall be subject to, the same terms and conditions as applied to the Company Warrant immediately prior to the Second Effective Time. As of the Second Effective Time, each such HoldCo Warrant as so assumed and converted shall be an option to acquire that number of whole shares of HoldCo Common Stock (rounded down to the nearest whole share) equal to the product of: (i) the number of shares of Company Common Stock subject to such Company Warrant; and (ii) the Exchange Ratio, at an exercise price per share of HoldCo Common Stock (rounded up to the nearest whole cent) equal to the quotient obtained by dividing (A) the exercise price per share of Company Common Stock of such Company Warrant by (B) the Exchange Ratio. Each such HoldCo Warrant issued in replacement for a Company Warrant will be substantially in the form attached hereto as Exhibit G.

Section 2.10 Tax Treatment. Each of the parties intends that, for U.S. federal income tax purposes, each of the First Merger and the Second Merger shall be treated as part of an integrated transaction to which Section 351 of the Code applies (the “Intended Tax Treatment”). Each party shall file all Tax Returns consistent with, and take no position inconsistent with the Intended Tax Treatment (whether in connection with any audit, examination or other Tax proceeding, on any Tax Return or otherwise) unless required to do so pursuant to a “determination” within the meaning of Section 1313(a) of the Code. From and after the date of this Agreement, none of the parties shall, nor shall they permit any of their Affiliates to, knowingly take any action, cause any action to be taken or omit to take any action which could reasonably be expected to cause the transactions to fail to qualify for the Intended Tax Treatment.

Section 2.11 Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary, including Section 2.01, shares of Company Capital Stock issued and outstanding immediately prior to the Second Effective Time (other than shares of Company Capital Stock cancelled in accordance with Section 2.01(b)(i)) and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal rights of such shares of Company Capital Stock in accordance with Section 262 of the DGCL (such shares of Company Capital Stock being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such shares of Company Capital Stock) shall not be converted into a right to receive a portion of the Company Merger Consideration, but instead shall be entitled to only such rights as are granted by Section 262 of the DGCL; provided, however, that if, after the Second Effective Time, such holder fails to perfect, withdraws or loses such holder’s right to appraisal pursuant to Section 262 of the DGCL or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such shares of Company Capital Stock shall be treated as if they had been converted as of the Second Effective Time into the right to receive the portion of the Company Merger Consideration, if any, to which such holder is entitled pursuant to Section 2.01 or Section 2.04, without interest thereon. The Company shall provide Parent and HoldCo prompt written notice of any demands received by the Company for appraisal of shares of Company Capital Stock, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Second Effective Time pursuant to the DGCL that relates to such demand, and Parent and HoldCo shall have the opportunity and right to direct all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent and HoldCo, the Company shall not make any payment with respect to, or settle or offer to settle, any such demands.

Section 2.12 Consideration Spreadsheet. Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired (or capable of being acquired), by or on behalf of the Parent Entities or any of their respective Affiliates, (x) it is expressly acknowledged and agreed that the Parent Entities and their respective Affiliates shall be entitled to rely on the Consideration Spreadsheet (and any update thereto), without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event will any Parent Entity or any of its Affiliates have any liability to any Person (including the Stockholder Representative and each of the equityholders of the Company) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Consideration Spreadsheet (and any update thereto) and the allocation set forth therein or payments made by any Person (including the Parent Entities, the Stockholder Representative, the Escrow Agent and their respective Affiliates) in accordance therewith.

Section 2.13 Post-Closing Payment Review and Dispute.

(a) Annual Payment Summaries. On or before the due date of HoldCo’s annual report on Form 10-K, or if HoldCo is no longer required to file such reports, 90 days after the end of each of HoldCo’s fiscal years, HoldCo shall provide the Stockholder Representative a summary of payments made pursuant to Section 2.04 (a “Payment Summary”) with reasonably detailed written statements setting forth: (i) all such payments (and components thereof) during the most recent completed fiscal year, including when each was received or became payable, as applicable, and how such amounts were calculated; and (ii) all payment deductions (and components thereof), including when the same were incurred or became payable, as applicable, and how such amounts were calculated; in each case, together with copies of relevant associated documentation with respect to the same. Such Payment Summary and calculations shall be made in accordance with the applicable requirements of the Agreement, including its defined terms. The Stockholder Representative hereby agrees to maintain in strictest confidence all information included in any Payment Summary.

(b) Payment Dispute. After any delivery of a Payment Summary under paragraph (a) above and also after any notice from the Stockholder Representative that a Payment Summary that was required to be delivered by the Agreement has not yet been delivered (each, a “Payment Summary Omission”), HoldCo will provide to the Stockholder Representative and its accountants and advisers, after executing a reasonable confidentiality agreement, reasonable access to the books and records of HoldCo, solely for the purpose of reviewing HoldCo’s calculation of the amounts of Post-Closing Payments covered by the applicable Payment Summary. HoldCo also shall cause such personnel to reasonably cooperate with and respond to the Stockholder Representative’s reasonable inquiries. Any such reviews will be conducted at the expense of the Stockholder Representative, unless HoldCo agrees that the results of such review reveal an underpayment of more than 5.0% for any calendar year that is the subject of the review, in which case HoldCo will promptly reimburse the Stockholder Representative for the reasonable and documented costs of such review.

(c) Actual Dispute. Within thirty (30) days after receipt of a Payment Summary (the “Dispute Period” for such Payment Summary), the Stockholder Representative may deliver to HoldCo a notice (“Dispute Notice”) setting forth the basis for its objections to the Payment Summary (or absence thereof) in reasonable detail including, to the extent practicable, (i) each item or amount objected to by the Stockholder Representative, and (ii) Stockholder Representative’s calculation of each such objected item or amount. If a Dispute Notice is not delivered to HoldCo within the Dispute Period for a particular Payment Summary, the Stockholder Representative shall be deemed to have consented to such particular Payment Summary and the same shall be final and binding on the Parties. If a Dispute Notice is delivered to HoldCo within the Dispute Period for a particular Payment Summary, the Stockholder Representative and HoldCo shall negotiate in good faith to resolve any objections set forth in the Dispute Notice. Any item set forth in the Payment Summary and not objected to in the corresponding Dispute Notice shall be final and binding on the Parties. If the Stockholder Representative and HoldCo do not reach a final resolution within twenty (20) days after the delivery of the Dispute Notice, the Stockholder Representative or HoldCo may submit such dispute to an independent, nationally or regionally recognized accounting firm as mutually agreed upon by Stockholder Representative and HoldCo (the “Independent Accountant”). If any dispute is submitted to the Independent Accountant, the Independent Accountant shall be requested to render a written determination of the applicable dispute within thirty (30) days after referral of the matter to the Independent Accountant, which determination must be in writing and must set forth, in reasonable detail, the basis for such determination and must be based solely on (i) the definitions and other applicable provisions of this Agreement, (ii) a single presentation (which presentation shall be limited to the remaining items in dispute set forth in the Payment Summary and Dispute Notice) submitted by each of HoldCo and the Stockholder Representative to the Independent Accountant within fifteen (15) days after the engagement of the Independent Accountant (which the Independent Accountant shall forward to the other Party) and (iii) one written response submitted to the Independent Accountant within five (5) Business Days after receipt of each such presentation (which the Independent Accountant shall forward to the other Party), and not on independent review.

(d) Determination. The Independent Accountant shall be bound by the provisions of this Agreement (including its defined terms) and shall resolve only those matters that remain in dispute after the 30day resolution period. It is the intent of the parties that the process set forth in this Section 2.13 and the activities of the Independent Accountant in connection herewith are not intended to be and are not an arbitration and that the Independent Accountant shall act as an expert and not an arbitrator, and no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Notwithstanding anything to the contrary in this Agreement, the scope of the Independent Accountant’s review of any dispute between HoldCo and the Stockholder Representative regarding the Dispute Notice and the calculations set forth therein shall be limited solely to the resolution of the remaining disputed portion(s) of such calculations that are set forth in the Dispute Notice, and the Independent Accountant shall not have authority over any other disagreement (including but not limited to questions of law or interpretation of Contract (except as related to the interpretation of the Dispute Notice and the calculations set forth therein in dispute)). The resolution of the dispute by the Independent Accountant shall be final and binding on, and non-appealable by, the Parties. No ex parte conferences, oral examinations, testimony, depositions, discovery, or other form of evidence gathering or hearings shall be conducted or allowed; provided, that at the Independent Accountant’s request, or as mutually agreed in writing by the Stockholder Representative and HoldCo, the Stockholder Representative and HoldCo may meet with the Independent Accountant so long as representatives of both the Stockholder Representative and HoldCo are present. The Independent Accountant shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Independent Accountant pursuant to this Schedule. The Payment Summary shall be modified, if necessary, to reflect the determination of the Independent Accountant. The fees and expenses of the Independent Accountant initially will be borne by the Stockholder Representative; provided, that in the event that HoldCo underpaid the amounts due to the Participating Holders with respect to any Post-Closing Contingent Payment by more than 5.0% of such amount, then the fees and expenses of the Independent Account will be borne by HoldCo, on the one hand, and the Stockholder Representative, on behalf of the Participating Holders, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Independent Accountant, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accountant at the time the determination is rendered on the merits of the disputed matters.

ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the correspondingly numbered Section of the Company Disclosure Letter, the Company represents and warrants to each Parent Entity that the statements contained in this Article III are true and correct as of the date hereof.

Section 3.01 Organization; Standing and Power; Charter Documents; Subsidiaries.

(a) Organization; Standing and Power. The Company and each of its Subsidiaries is a corporation, limited liability company, or other legal entity duly organized, validly existing, and in good standing (to the extent that the concept of “good standing” is applicable in the case of any jurisdiction outside the United States) under the Laws of its jurisdiction of organization, and has the requisite corporate, limited liability company, or other organizational, as applicable, power and authority to own, lease, and operate its assets and to carry on its business as now conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business as a foreign corporation, limited liability company, or other legal entity and is in good standing (to the extent that the concept of “good standing” is applicable in the case of any jurisdiction outside the United States) in each jurisdiction where the character of the assets and properties owned, leased, or operated by it or the nature of its business makes such qualification or license necessary, except where the failure to be so qualified or licensed or to be in good standing, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b) Charter Documents. The copies of the Certificate of Incorporation and Bylaws of the Company as delivered to Parent are true, correct, and complete copies of such documents as in effect as of the date of this Agreement. The Company has delivered or made available to Parent a true and correct copy of the Charter Documents of each of the Company’s Subsidiaries. Neither the Company nor any of its Subsidiaries is in violation of any of the provisions of its Charter Documents.

(c) Subsidiaries. Section 3.01(c)(i) of the Company Disclosure Letter lists each of the Subsidiaries of the Company as of the date hereof and its place of organization. Section 3.01(c)(ii) of the Company Disclosure Letter sets forth, for each Subsidiary that is not, directly or indirectly, wholly-owned by the Company: (i) the number and type of any capital stock of, or other equity or voting interests in, such Subsidiary that is outstanding as of the date hereof; and (ii) the number and type of shares of capital stock of, or other equity or voting interests in, such Subsidiary that, as of the date hereof, are owned, directly or indirectly, by the Company. All of the outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company that is owned directly or indirectly by the Company have been validly issued, were issued free of pre-emptive rights, are fully paid and non-assessable, and are free and clear of all Liens, including any restriction on the right to vote, sell, or otherwise dispose of such capital stock or other equity or voting interests, except for any Liens: (A) imposed by applicable securities Laws; or (B) arising pursuant to the Charter Documents of any non-wholly-owned Subsidiary of the Company. Except for the capital stock of, or other equity or voting interests in, its Subsidiaries, the Company does not own, directly or indirectly, any capital stock of, or other equity or voting interests in, any Person.

Section 3.02 Capital Structure.

(a) Capital Stock. The authorized capital stock of the Company consists of: (i) 35,000,000 shares of Company Common Stock; and (ii) 15,000,000 shares of preferred stock, par value $0.001 per share, of the Company (the “Company Preferred Stock”). As of the date of this Agreement: (A) 2,681,920 shares of Company Common Stock were issued and outstanding (not including shares held in treasury); (B) no shares of Company Common Stock were issued and held by the Company in its treasury; (C) 7,300,000 shares of Company Preferred Stock were designated as Series A-1 Preferred Stock, of which 1,509,401 shares were issued and outstanding; (D) 6,000,000 shares of Company Preferred Stock were designated as Series A-2 Preferred Stock, of which 1,050,500 shares were issued and outstanding; and (E) no shares of Preferred Stock were held by the Company in its treasury. As of the date of this Agreement, the holders of Company Preferred Stock were entitled to a liquidation preferences, including all accrued but unpaid dividends through the same date, totaling $12,623,881 in the aggregate. Section 3.02(a) of the Company Disclosure Letter sets forth as of the date of this Agreement a list of all outstanding shares of Company Capital Stock, including: (A) the class and amount of such shares; (B) the name of the holder of such shares; (C) the date on which such shares were issued; and (D) the amount of liquidation preference, including all accrued but unpaid dividends, through the date of this Agreement. All of the outstanding shares of Company Capital Stock are, and shares of Company Capital Stock that may be issued as contemplated or permitted by this Agreement will be, when issued, duly authorized, validly issued, fully paid, and non-assessable, and not subject to any pre-emptive rights. No Subsidiary of the Company owns any shares of Company Capital Stock.

(b) Stock Awards. As of the date of this Agreement, an aggregate of 117,437 shares of Company Common Stock were reserved for issuance pursuant to Company Equity Awards not yet granted under the Company Stock Plans. As of the date of this Agreement, 3,350,000 shares of Company Common Stock were reserved for issuance pursuant to outstanding Company Stock Options and no Company Restricted Shares were issued and outstanding. Section 3.02(b) of the Company Disclosure Letter sets forth as of the date of this Agreement a list of each outstanding Company Equity Award granted under the Company Stock Plans and: (A) the name of the holder of such Company Equity Award; (B) the number of shares of Company Common Stock subject to such outstanding Company Equity Award; (C) if applicable, the exercise price, purchase price, or similar pricing of such Company Equity Award; (D) the date on which such Company Equity Award was granted or issued; (E) the applicable vesting, repurchase, or other lapse of restrictions schedule, and the extent to which such Company Equity Award is vested and exercisable as of the date hereof; (F) with respect to Company Stock Options, the date on which such Company Stock Option expires; and (G) if applicable, whether such Company Stock Option is an incentive stock option or non-statutory stock option under the Code. All shares of Company Common Stock subject to issuance under the Company Stock Plans, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, and non-assessable.

(c) Warrants. As of the date of this Agreement, an aggregate of 380,469 shares of Company Common Stock were reserved for issuance pursuant to outstanding Company Warrants. Section 3.02(c) of the Company Disclosure Letter sets forth as of the date of this Agreement a list of each outstanding Company Warrant and: (A) the name of the holder of such Company Warrant; (B) the number of shares of Company Common Stock subject to such outstanding Company Warrant; (C) the exercise price, purchase price, or similar pricing of such Company Warrant; (D) the date on which such Company Warrant was issued; (E) the applicable vesting, repurchase, or other lapse of restrictions schedule, and the extent to which such Company Warrant is vested and exercisable as of the date hereof; and (F) the date on which such Company Warrant expires. All shares of Company Common Stock subject to issuance under the Company Warrants, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, and non-assessable.

(d) Convertible Debt. As of the date of this Agreement, an aggregate of 5,076,844 shares of Company Common Stock were reserved for issuance pursuant to outstanding Company Convertible Debt. Section 3.02(d) of the Company Disclosure Letter sets forth as of the date of this Agreement a list of each outstanding instrument representing Company Convertible Debt and: (A) the name of the lender of such Company Convertible Debt; (B) the total number of shares of Company Common Stock issuable pursuant to such Company Convertible Debt; (C) the conversion price, or similar pricing of the conversion provisions of such Company Convertible Debt; (D) the date on which such Company Convertible Debt was originally issued; (E) the interest rate and total accrued but unpaid interest; and (F) the date on which such Company Convertible Debt is scheduled to mature. All shares of Company Common Stock subject to issuance under the Company Convertible Debt, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, and non-assessable.

(e) No Other Rights. Except for the Company Stock Plans and other agreements as set forth in Section 3.02(e) of the Company Disclosure Letter, there are no Contracts to which the Company is a party obligating the Company to accelerate the vesting of any Company Equity Award as a result of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any additional or subsequent events). Other than the Company Preferred Stock, Company Equity Awards, Company Warrants, and Company Convertible Debt, as of the date hereof, there are no outstanding: (A) securities of the Company or any of its Subsidiaries convertible into or exchangeable for Voting Debt or shares of capital stock of the Company; (B) options, warrants, or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any Voting Debt or shares of capital stock of (or securities convertible into or exchangeable for shares of capital stock of) the Company; or (C) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, “phantom” stock, or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of the Company, in each case that have been issued by the Company or its Subsidiaries (the items in clauses (A), (B), and (C), together with the Company Capital Stock, Company Equity Awards, Company Warrants, and Company Convertible Debt, being referred to collectively as “Company Securities”). All outstanding shares of Company Common Stock, all outstanding Company Equity Awards, and all outstanding shares of capital stock, voting securities, or other ownership interests in any Subsidiary of the Company, have been issued or granted, as applicable, in compliance in all material respects with all applicable securities Laws.

(f) No Repurchase Rights. There are no outstanding Contracts requiring the Company or any of its Subsidiaries to repurchase, redeem, or otherwise acquire any Company Securities or Company Subsidiary Securities. Neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to any Company Securities or Company Subsidiary Securities.

(g) No Voting Debt. No bonds, debentures, notes, or other indebtedness issued by the Company or any of its Subsidiaries: (i) having the right to vote on any matters on which stockholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into, or exchangeable for, securities having such right); or (ii) the value of which is directly based upon or derived from the capital stock, voting securities, or other ownership interests of the Company or any of its Subsidiaries, are issued or outstanding (collectively, “Voting Debt”).

(h) Company Subsidiary Securities. As of the date hereof, there are no outstanding: (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for Voting Debt, capital stock, voting securities, or other ownership interests in any Subsidiary of the Company; (ii) options, warrants, or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any Voting Debt, capital stock, voting securities, or other ownership interests in (or securities convertible into or exchangeable for capital stock, voting securities, or other ownership interests in) any Subsidiary of the Company; or (iii) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, “phantom” stock, or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of, or other ownership interests in, any Subsidiary of the Company, in each case that have been issued by a Subsidiary of the Company (the items in clauses (i), (ii), and (iii), together with the capital stock, voting securities, or other ownership interests of such Subsidiaries, being referred to collectively as “Company Subsidiary Securities”).

Section 3.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.

(a) Authority. The Company has all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and the Ancillary Documents to which it is a party and, subject to, in the case of the consummation of the Transactions, adoption of this Agreement by the affirmative vote or consent of the holders of a majority of the outstanding shares of Company Common Stock (the “Requisite Company Vote”), to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement or to consummate the Transactions, subject only, in the case of consummation of the Transactions, to the receipt of the Requisite Company Vote. The Requisite Company Vote is the only vote or consent of the holders of any class or series of the Company’s capital stock necessary to approve and adopt this Agreement and the Ancillary Documents, approve the Transactions, and consummate the Transactions, including the Second Merger. This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by the Parent Entities, constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar Laws affecting creditors’ rights generally and by general principles of equity.

(b) Non-Contravention. The execution, delivery, and performance of this Agreement by the Company and the Ancillary Documents to which it is a party, and the consummation by the Company of the transactions contemplated by this Agreement and the Ancillary Documents, including the Second Merger, do not and will not: (i) subject to obtaining the Requisite Company Vote, contravene or conflict with, or result in any violation or breach of, the Charter Documents of the Company or any of its Subsidiaries; (ii) assuming that all Consents contemplated by clauses (i) through (iv) of Section 3.03(c) have been obtained or made and, in the case of the consummation of the Transactions, obtaining the Requisite Company Vote, conflict with or violate any Law applicable to the Company, any of its Subsidiaries, or any of their respective properties or assets; (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the Company’s or any of its Subsidiaries’ loss of any benefit or the imposition of any additional payment or other liability under, or alter the rights or obligations of any third party under, or give to any third party any rights of termination, amendment, acceleration, or cancellation, or require any Consent under, any Contract to which the Company or any of its Subsidiaries is a party or otherwise bound as of the date hereof; or (iv) result in the creation of a Lien (other than Permitted Liens) on any of the properties or assets of the Company or any of its Subsidiaries, except, in the case of each of clauses (ii), (iii), and (iv), for any conflicts, violations, breaches, defaults, loss of benefits, additional payments or other liabilities, alterations, terminations, amendments, accelerations, cancellations, or Liens that, or where the failure to obtain any Consents, in each case, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c) Governmental Consents. No consent, approval, order, or authorization of, or registration, declaration, or filing with, or notice to (any of the foregoing being a “Consent”), any Governmental Entity is required to be obtained or made by the Company in connection with the execution, delivery, and performance by the Company of this Agreement or the consummation by the Company of the Transactions except for: (i) the filing of the Second Certificate of Merger with the Secretary of State of the State of Delaware; (ii) such Consents as may be required under (A) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) or (B) any other Laws that are designed or intended to prohibit, restrict, or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or creation or strengthening of a dominant position through merger or acquisition (“Foreign Antitrust Laws” and, together with the HSR Act, the “Antitrust Laws”), in any case that are applicable to the transactions contemplated by this Agreement; (iii) such Consents as may be required under applicable state securities or “blue sky” Laws and the securities Laws of any foreign country or the rules and regulations of any applicable national securities exchange; (iv) the other Consents of Governmental Entities listed in Section 3.03(c) of the Company Disclosure Letter (the “Other Governmental Approvals”); and (v) such other Consents which if not obtained or made would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(d) Board Approval. The Company Board, by resolutions duly adopted by a unanimous vote at a meeting of all directors of the Company duly called and held and, not subsequently rescinded or modified in any way, has: (i) determined that this Agreement and the Transactions, including the Second Merger, upon the terms and subject to the conditions set forth herein, are fair to, and in the best interests of, the Company and the Company’s stockholders; (ii) approved and declared advisable this Agreement, including the execution, delivery, and performance thereof, and the consummation of the Transactions, including the Second Merger, upon the terms and subject to the conditions set forth herein; (iii) directed that this Agreement be submitted to the Company’s stockholders for adoption; and (iv) resolved to recommend that Company stockholders vote in favor of adoption of this Agreement in accordance with the DGCL (collectively, the “Company Board Recommendation”).

(e) Anti-Takeover Statutes. No “fair price,” “moratorium,” “control share acquisition,” “supermajority,” “affiliate transactions,” “business combination,” or other similar anti-takeover statute or regulation enacted under any federal, state, local, or foreign laws applicable to the Company is applicable to this Agreement, the Transactions, including the Second Merger.

Section 3.04 Financial Statements; Undisclosed Liabilities; Off-Balance Sheet Arrangements.

(a) Financial Statements. Complete copies of the Company’s audited financial statements consisting of the balance sheet of the Company as at December 31 in each of the years 2020 and 2019 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the years then ended (the “Audited Financial Statements”), and unaudited financial statements consisting of the balance sheet of the Company as of September 30, 2021 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the nine-month period then ended (the “Interim Financial Statements” and together with the Audited Financial Statements, the “Financial Statements”) have been delivered to Parent. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the Audited Financial Statements). The Financial Statements are based on the books and records of the Company, and fairly present in all material respects the financial condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the periods indicated. The balance sheet of the Company as of December 31, 2020 is referred to herein as the “Company Balance Sheet” and the date thereof as the “Balance Sheet Date” and the balance sheet of the Company as of September 30, 2021 is referred to herein as the “Interim Balance Sheet” and the date thereof as the “Interim Balance Sheet Date”. The Company maintains a standard system of accounting established and administered in accordance with GAAP.

(b) Undisclosed Liabilities. The Company has no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise (“Liabilities”), except (a) those which are adequately reflected or reserved against in the Company Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.

(c) Off-Balance Sheet Arrangements. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to: (i) any joint venture, off-balance sheet partnership, or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among the Company or any of its Subsidiaries, on the one hand, and any other Person, including any structured finance, special purpose, or limited purpose Person, on the other hand); or (ii) any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).

(d) Accounting, Securities, or Other Related Complaints or Reports. Since the Company’s inception: (i) none of the Company or any of its Subsidiaries nor any director or officer of the Company or any of its Subsidiaries has received any oral or written complaint, allegation, assertion, or claim regarding the financial accounting, internal accounting controls, or auditing practices, procedures, methodologies, or methods of the Company or any of its Subsidiaries or any oral or written complaint, allegation, assertion, or claim from employees of the Company or any of its Subsidiaries regarding questionable financial accounting or auditing matters with respect to the Company or any of its Subsidiaries; and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported credible evidence of any material violation of securities Laws, breach of fiduciary duty, or similar material violation by the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, or agents to the Company Board or any committee thereof, or to the chief executive officer, chief financial officer, or general counsel of the Company.

Section 3.05 Absence of Certain Changes or Events.

Since the date of the Company Balance Sheet, except in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, the business of the Company and each of its Subsidiaries has been conducted in the ordinary course of business consistent with past practice and there has not been or occurred:

(a) any Company Material Adverse Effect or any event, condition, change, or effect that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; or

(b) any event, condition, action, or effect that, if taken during the period from the date of this Agreement through the Effective Time, would constitute a breach of Section 5.01.

Section 3.06 Taxes.

(a) Tax Returns and Payment of Taxes. The Company and each of its Subsidiaries have duly and timely filed or caused to be filed (taking into account any valid extensions) all material Tax Returns required to be filed by them. Such Tax Returns are true, complete, and correct in all material respects. Neither Company nor any of its Subsidiaries is currently the beneficiary of any extension of time within which to file any Tax Return other than extensions of time to file Tax Returns obtained in the ordinary course of business consistent with past practice. All material Taxes due and owing by the Company or any of its Subsidiaries (whether or not shown on any Tax Return) have been timely paid or, where payment is not yet due, the Company has made an adequate provision for such Taxes in the Company’s Financial Statements (in accordance with GAAP). The Company’s Interim Financial Statements reflect an adequate reserve (in accordance with GAAP) for all material Taxes payable by the Company and its Subsidiaries through the date of such financial statements. Neither the Company nor any of its Subsidiaries has incurred any material Liability for Taxes since the date of the Company’s Interim Financial Statements outside of the ordinary course of business or otherwise inconsistent with past practice.

(b) Availability of Tax Returns. The Company has made available to Parent complete and accurate copies of all federal, state, local, and foreign income, franchise, and other material Tax Returns filed by or on behalf of the Company or its Subsidiaries for any Tax period ending after January 1, 2018.

(c) Withholding. The Company and each of its Subsidiaries have withheld and timely paid each material Tax required to have been withheld and paid in connection with amounts paid or owing to any Company Employee, creditor, customer, stockholder, or other party (including, without limitation, withholding of Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any state, local, and foreign Laws), and materially complied with all information reporting and backup withholding provisions of applicable Law.

(d) Liens. There are no Liens for material Taxes upon the assets of the Company or any of its Subsidiaries other than for current Taxes not yet due and payable.

(e) Tax Deficiencies and Audits. No deficiency for any material amount of Taxes which has been proposed, asserted, or assessed in writing by any taxing authority against the Company or any of its Subsidiaries remains unpaid. There are no waivers or extensions of any statute of limitations currently in effect with respect to Taxes of the Company or any of its Subsidiaries. There are no audits, suits, proceedings, investigations, claims, examinations, or other administrative or judicial proceedings ongoing or pending with respect to any material Taxes of the Company or any of its Subsidiaries.

(f) Tax Jurisdictions. No claim has ever been made in writing by any taxing authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to Tax in that jurisdiction.

(g) Tax Rulings. Neither the Company nor any of its Subsidiaries has requested or is the subject of or bound by any private letter ruling, technical advice memorandum, or similar ruling or memorandum with any taxing authority with respect to any material Taxes, nor is any such request outstanding.

(h) Consolidated Groups, Transferee Liability, and Tax Agreements. Neither the Company nor any of its Subsidiaries: (i) has been a member of a group filing Tax Returns on a consolidated, combined, unitary, or similar basis; (ii) has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any comparable provision of local, state, or foreign Law), as a transferee or successor, by Contract, or otherwise; or (iii) is a party to, bound by or has any material liability under any Tax sharing, allocation, or indemnification agreement or arrangement.

(i) Change in Accounting Method. Neither Company nor any of its Subsidiaries has agreed to make, nor is it required to make, any material adjustment under Section 481(a) of the Code or any comparable provision of state, local, or foreign Tax Laws by reason of a change in accounting method or otherwise.

(j) Post-Closing Tax Items. The Company and its Subsidiaries will not 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) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (ii) installment sale or open transaction disposition made on or prior to the Closing Date; (iii) prepaid amount received on or prior to the Closing Date; or (iv) any income under Section 965(a) of the Code, including as a result of any election under Section 965(h) of the Code with respect thereto.

(k) Ownership Changes. Without regard to this Agreement, neither the Company nor any of its Subsidiaries has undergone an “ownership change” within the meaning of Section 382 of the Code.

(l) Section 355. Neither Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in connection with a distribution described in Section 355 of the Code.

(m) Reportable Transactions. Neither Company nor any of its Subsidiaries has been a party to, or a material advisor with respect to, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).

Section 3.07 Intellectual Property.

(a) Scheduled Company-Owned IP. Section 3.07(a) of the Company Disclosure Letter contains a true and complete list, as of the date hereof, of all: (i) Company-Owned IP that is the subject of any issuance, registration, certificate, application, or other filing by, to or with any Governmental Entity or authorized private registrar, including patents, patent applications, trademark registrations and pending applications for registration, copyright registrations and pending applications for registration, and internet domain name registrations; and (ii) material unregistered Company-Owned IP.

(b) Right to Use; Title. Except as set forth on Section 3.07(b) of the Company Disclosure Letter, the Company or one of its Subsidiaries is the sole and exclusive legal and beneficial owner of all right, title, and interest in and to the Company-Owned IP, and has the valid and enforceable right to use all other Intellectual Property used in or necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted and as proposed to be conducted (“Company IP”), in each case, free and clear of all Liens other than Permitted Liens, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c) Validity and Enforceability. The Company and its Subsidiaries’ rights in the Company-Owned IP are valid, subsisting, and enforceable, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and each of its Subsidiaries have taken reasonable steps to maintain the Company IP and to protect and preserve the confidentiality of all trade secrets included in the Company IP, except where the failure to take such actions would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(d) Non-Infringement. Except as would not be reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the conduct of the businesses of the Company and any of its Subsidiaries has not infringed, misappropriated, or otherwise violated, and is not infringing, misappropriating, or otherwise violating, any Intellectual Property of any other Person; and (ii) to the Knowledge of the Company, no third party is infringing upon, violating, or misappropriating any Company IP.

(e) IP Legal Actions and Orders. There are no Legal Actions pending or, to the Knowledge of the Company, threatened: (i) alleging any infringement, misappropriation, or violation by the Company or any of its Subsidiaries of the Intellectual Property of any Person; or (ii) challenging the validity, enforceability, or ownership of any Company-Owned IP or the Company or any of its Subsidiaries’ rights with respect to any Company IP, in each case except for such Legal Actions that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries are not subject to any outstanding Order that restricts or impairs the use of any Company-Owned IP, except where compliance with such Order would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(f) Company IT Systems. Except as set forth on Section 3.07(a) of the Company Disclosure Letter, in the past three (3) years, there has been no malfunction, failure, continued substandard performance, denial-of-service, or other cyber incident, including any cyberattack, or other impairment of the Company IT Systems, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries have taken all reasonable best effort steps to safeguard the confidentiality, availability, security, and integrity of the Company IT Systems, including implementing and maintaining appropriate backup, disaster recovery, and software and hardware support arrangements, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.08 Privacy and Data Security.

(a) The Company and each of its Subsidiaries is currently and has been in compliance with (i) HIPAA and all other applicable Privacy and Security Laws and Standards; and (ii) any obligations of the Company or its Subsidiaries under Contracts to which the Company or a Subsidiary is a party concerning the protection, collection, access, use, storage, disposal, disclosure, or transfer of Personal Information and any related notifications. Without limiting the foregoing, the Company and its Subsidiaries have entered into business associate agreements (“BAAs”) with each applicable third party to the extent required by HIPAA and have posted, in accordance with Privacy and Security Laws and Standards, a privacy policy governing the use of Personal Information on public-facing websites and internally for employees.

(b) Except as set forth on Section 3.08(b) of the Company Disclosure Letter, the Company and each of its Subsidiaries has (i) developed, implemented, and conducted its business in compliance with any public privacy notices and data security or privacy policies and procedures (copies of which have been made available to Parent); (ii) maintained commercially reasonable administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of Personal Information in its possession or control, and to prevent the loss and unauthorized use, access, alteration, destruction, or disclosure of such Personal Information; and (iii) trained its employees to follow these policies and procedures.

(c) Neither the Company nor any of its Subsidiaries have been subject to or received notice of any Order or Legal Action by any Person (including any Governmental Entity) or any complaints regarding the protection, collection, access, use, storage, disposal, disclosure, or transfer of Personal Information or the violation of any applicable Privacy and Security Laws and Standards. To the Knowledge of the Company and its Subsidiaries, no such Legal Action is threatened against the Company or any of its Subsidiaries.

(d) Neither the Company nor any of its Subsidiaries have suffered, discovered, or been notified of any unauthorized acquisition, use, disclosure, access to, or breach of any Personal information that (i) constitutes a breach or a data security incident under any applicable Privacy and Security Laws and Standards or that would trigger a notification or reporting requirement under any BAA or Contract to which the Company or any of its Subsidiaries is a party, or the PCI-DSS; or (ii) materially compromises (individually or in the aggregate) the security or privacy of such Personal Information.

(e) The Company has not created, received, maintained, or transmitted protected health information (“PHI”) or electronic PHI (“ePHI), as defined by HIPAA regulations at 45 C.F.R. 160.103.

(f) Except as set forth on Section 3.08(f) of the Company Disclosure Letter, the Company and each of its Subsidiaries has complied with all Contracts and all Privacy and Security Laws and Standards, including the HIPAA standards for de-identification set forth in 45 C.F.R. 164.514(b) and for data aggregation, as that term is defined in 45 C.F.R. 164.501, in each case, as applicable.

(g) Neither the Company nor any of its Subsidiaries have any Contract obligation to maintain Personal Information in a manner that physically separates data of one customer from that of another.

(h) The Company and each of its Subsidiaries has (i) annually performed a security risk assessment, (ii) created and maintained documentation in accordance with applicable Laws, including Privacy and Security Laws and Standards, and (iii) addressed and remediated all threats and deficiencies identified in such security risk assessment.

(i) Neither the Company nor any of its Subsidiaries have reported a breach or compromise of Personal Information to any Person or Governmental Authority, either voluntarily or based on Contract obligations or Privacy and Security Laws and Standards.

(j) The consummation of the Transaction does not violate any Privacy and Security Laws and Standards, Contract obligation related to Personal Information, or an applicable privacy policy or notice. Upon the Closing Date, the Surviving Corporation will own and continue to have the right to use all Personal Information on identical terms and conditions as the Company and its Subsidiaries enjoyed immediately prior to the Closing Date.

Section 3.09 Compliance; Permits.

(a) Compliance. The Company and each of its Subsidiaries are and, since January 1, 2018, have been in compliance in all material respects with, all Laws or Orders applicable to the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries or any of their respective businesses or properties is bound. Since January 1, 2018, no Governmental Entity has issued any notice or notification stating that the Company or any of its Subsidiaries is not in compliance with any Law in any material respect.

(b) Permits. The Company and its Subsidiaries hold, to the extent necessary to operate their respective businesses as such businesses are being operated as of the date hereof, all permits, licenses, registrations, variances, clearances, consents, commissions, franchises, exemptions, Orders, authorizations, and approvals from Governmental Entities (collectively, “Permits”), except for any Permits for which the failure to obtain or hold would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No suspension, cancellation, non-renewal, or adverse modifications of any Permits of the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, except for any such suspension or cancellation which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and each of its Subsidiaries is and, since January 1, 2018, has been in compliance with the terms of all Permits, except where the failure to be in such compliance would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.10 Litigation. Except as set forth in Section 3.10 of the Disclosure Letter, there is no Legal Action pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or assets or, to the Knowledge of the Company, any officer or director of the Company or any of its Subsidiaries in their capacities as such. None of the Company or any of its Subsidiaries or any of their respective properties or assets is subject to any order, writ, assessment, decision, injunction, decree, ruling, or judgment of a Governmental Entity or arbitrator, whether temporary, preliminary, or permanent (“Order”), which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, there are no governmental inquiries or investigations, or internal investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company or any of its Subsidiaries or any malfeasance by any officer or director of the Company.

Section 3.11 Brokers’ and Finders’ Fees. Except for fees payable to Sage Healthcare (the “Company Financial Advisor”) pursuant to an engagement letter listed in Section 3.11 of the Company Disclosure Letter, a correct and complete copy of which has been provided to the Parent Entities, neither the Company nor any of its Subsidiaries has incurred, nor will it incur, directly or indirectly, any liability for investment banker, brokerage, or finders’ fees or agents’ commissions, or any similar charges (“Brokers’ Fees”) in connection with this Agreement or any transaction contemplated by this Agreement.

Section 3.12 Related Person Transactions. Except as set forth on Section 3.12 of the Company Disclosure Letter, no executive officer or director of the Company or any person owning five percent (5.0%) or more of the issued and outstanding shares of Company Common Stock (or any of such person’s immediate family members or Affiliates or associates) is a party to any Contract with or binding upon the Company or any of its assets, rights or properties or has any interest in any property owned by the Company or has engaged in any transaction with any of the foregoing within the last twelve (12) months.

Section 3.13 Employee Benefit Issues.

(a) Schedule. Section 3.13(a) of the Company Disclosure Letter contains a true and complete list, as of the date hereof, of each plan, program, policy, agreement, collective bargaining agreement, or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, health, dental, retirement, life insurance, death, accidental death & dismemberment, disability, fringe, or wellness benefits, or other employee benefits or remuneration of any kind, including each employment, termination, severance, retention, change in control, or consulting or independent contractor plan, program, arrangement, or agreement, in each case whether written or unwritten or otherwise, funded or unfunded, insured or self-insured, including each “employee benefit plan,” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, which is or has been sponsored, maintained, contributed to, or required to be contributed to, by the Company or any of its Subsidiaries for the benefit of any current or former employee, independent contractor, consultant, or director of the Company or any of its Subsidiaries (each, a “Company Employee”), or with respect to which the Company or any Company ERISA Affiliate has or may have any Liability (collectively, the “Company Employee Plans”).

(b) Documents. The Company has made available to the Parent Entities correct and complete copies (or, if a plan or arrangement is not written, a written description) of all Company Employee Plans and amendments thereto, and, to the extent applicable: (i) all related trust agreements, funding arrangements, insurance contracts, and service provider agreements now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (ii) the most recent determination letter received regarding the tax-qualified status of each Company Employee Plan; (iii) the most recent financial statements for each Company Employee Plan; (iv) the Form 5500 Annual Returns/Reports and Schedules for the most recent plan year for each Company Employee Plan; (v) the current summary plan description and any related summary of material modifications and, if applicable, summary of benefits and coverage, for each Company Employee Plan; and (vi) all actuarial valuation reports related to any Company Employee Plans.

(c) Employee Plan Compliance. (i) Each Company Employee Plan has been established, administered, and maintained in all material respects in accordance with its terms and in material compliance with applicable Laws, including but not limited to ERISA and the Code; (ii) all the Company Employee Plans that are intended to be qualified under Section 401(a) of the Code are so qualified and have received timely determination letters from the IRS and no such determination letter has been revoked nor, to the Knowledge of the Company, has any such revocation been threatened, or with respect to a prototype plan, can rely on an opinion letter from the IRS to the prototype plan sponsor, to the effect that such qualified retirement plan and the related trust are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and to the Knowledge of the Company no circumstance exists that is likely to result in the loss of such qualified status under Section 401(a) of the Code; (iii) the Company and its Subsidiaries, where applicable, have timely made all contributions, benefits, premiums, and other payments required by and due under the terms of each Company Employee Plan and applicable Law and accounting principles, and all benefits accrued under any unfunded Company Employee Plan have been paid, accrued, or otherwise adequately reserved to the extent required by, and in accordance with GAAP; (iv) except to the extent limited by applicable Law, each Company Employee Plan can be amended, terminated, or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, the Company, or any of its Subsidiaries (other than ordinary administration expenses and in respect of accrued benefits thereunder); (v) there are no investigations, audits, inquiries, enforcement actions, or Legal Actions pending or, to the Knowledge of the Company, threatened by the IRS, U.S. Department of Labor, Health and Human Services, Equal Employment Opportunity Commission, or any similar Governmental Entity with respect to any Company Employee Plan; (vi) there are no material Legal Actions pending, or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan (in each case, other than routine claims for benefits); (vii) to the Knowledge of the Company, neither the Company nor any of its Company ERISA Affiliates has engaged in a transaction that could subject the Company or any Company ERISA Affiliate to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA; and (viii) all non-US Company Employee Plans that are intended to be funded or book-reserved are funded or book-reserved, as appropriate, based on reasonable actuarial assumptions.

(d) Plan Liabilities. Neither the Company nor any Company ERISA Affiliate has: (i) incurred or reasonably expects to incur, either directly or indirectly, any liability under Title I or Title IV of ERISA, or related provisions of the Code or foreign Law relating to any Company Employee Plan and nothing has occurred that could constitute grounds under Title IV of ERISA to terminate, or appoint a trustee to administer, any Company Employee Plan; (ii) except for payments of premiums to the Pension Benefit Guaranty Corporation (“PBGC”) which have been timely paid in full, not incurred any liability to the PBGC in connection with any Company Employee Plan covering any active, retired, or former employees or directors of the Company or any Company ERISA Affiliate, including, without limitation, any liability under Sections 4069 or 4212(c) of ERISA or any penalty imposed under Section 4071 of ERISA, or ceased operations at any facility, or withdrawn from any such Company Employee Plan in a manner that could subject it to liability under Sections 4062, 4063 or 4064 of ERISA; (iii) failed to satisfy the health plan compliance requirements under the Affordable Care Act, including the employer mandate under Section 4980H of the Code and related information reporting requirements; (iv) failed to comply with Section 601 through 608 of ERISA and Section 4980B of the Code, regarding the health plan continuation coverage requirements under COBRA; (v) failed to comply with the privacy, security, and breach notification requirements under HIPAA; or (vi) incurred any withdrawal liability (including any contingent or secondary withdrawal liability) within the meaning of Sections 4201 or 4204 of ERISA to any multiemployer plan and nothing has occurred that presents a risk of the occurrence of any withdrawal from or the partition, termination, reorganization, or insolvency of any such multiemployer plan which could result in any liability of the Company or any Company ERISA Affiliate to any such multiemployer plan. No complete or partial termination of any Company Employee Plan has occurred or is expected to occur.

(e) Certain Company Employee Plans. With respect to each Company Employee Plan:

(i) no such plan is a “multiemployer plan” within the meaning of Section 3(37) of ERISA or a “multiple employer plan” within the meaning of Section 413(c) of the Code and neither the Company nor any of its Company ERISA Affiliates has now or at any time contributed to, sponsored, maintained, or had any liability or obligation in respect of any such multiemployer plan or multiple employer plan;

(ii) no Legal Action has been initiated by the PBGC to terminate any such Company Employee Plan or to appoint a trustee for any such Company Employee Plan;

(iii) no Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA or Sections 412, 418(b), or 430 of the Code, and none of the assets of the Company or any Company ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 303 of ERISA or Sections 430 or 436 of the Code. Except as set forth in Section 3.12(e) of the Company Disclosure Letter, no such plan is subject to the minimum funding standards of Section 302 of ERISA or Sections 412, 418(b), or 430 of the Code, and no plan listed in Section 3.12(e) of the Company Disclosure Letter has failed to satisfy the minimum funding standards of Section 302 of ERISA or Sections 412, 418(b), or 430 of the Code, and none of the assets of the Company or any Company ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 303 of ERISA or Sections 430 or 436 of the Code; and

(iv) no “reportable event,” as defined in Section 4043 of ERISA, has occurred, or is reasonably expected to occur, with respect to any such Company Employee Plan.

(f) No Post-Employment Obligations. No Company Employee Plan provides post-termination or retiree health benefits to any person for any reason, except as may be required by COBRA or other applicable Law, and neither the Company nor any Company ERISA Affiliate has any Liability to provide post-termination or retiree health benefits to any person or ever represented, promised, or contracted to any Company Employee (either individually or to Company Employees as a group) or any other person that such Company Employee(s) or other person would be provided with post-termination or retiree health benefits, except to the extent required by COBRA or other applicable Law.

(g) Potential Governmental or Lawsuit Liability. Other than routine claims for benefits: (i) there are no pending or, to the Knowledge of the Company, threatened claims by or on behalf of any participant in any Company Employee Plan, or otherwise involving any Company Employee Plan or the assets of any Company Employee Plan; and (ii) no Company Employee Plan is presently or has within the three (3) years prior to the date hereof, been the subject of an examination or audit by a Governmental Entity or is the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Entity.

(h) Section 409A Compliance. Each Company Employee Plan that is subject to Section 409A of the Code has been operated in compliance with such section and all applicable regulatory guidance (including, without limitation, proposed regulations, notices, rulings, and final regulations).

(i) Health Plan Compliance. Each of the Company and its Subsidiaries complies in all material respects with the applicable requirements under ERISA and the Code, including COBRA, HIPAA, and the Affordable Care Act, and other federal requirements for employer-sponsored health plans, and any corresponding requirements under state statutes, with respect to each Company Employee Plan that is a group health plan within the meaning of Section 733(a) of ERISA, Section 5000(b)(1) of the Code, or such state statute.

(j) Effect of Transaction. Except as set forth on Section 3.13(j) of the Company Disclosure Letter, neither the execution or delivery of this Agreement or the consummation of the Transactions, including the Second Merger, will (either alone or in combination with any other event): (i) entitle any current or former director, employee, contractor, or consultant of the Company or any of its Subsidiaries to severance pay or any other payment; (ii) accelerate the timing of payment, funding, or vesting, or increase the amount of compensation due to any such individual; (iii) limit or restrict the right of the Company to merge, amend, or terminate any Company Employee Plan; or (iv) increase the amount payable or result in any other material obligation pursuant to any Company Employee Plan. No amount that could be received (whether in cash or property or the vesting of any property) as a result of the consummation of the transactions contemplated by this Agreement by any employee, director, or other service provider of the Company under any Company Employee Plan or otherwise would not be deductible by reason of Section 280G of the Code nor would be subject to an excise tax under Section 4999 of the Code.

(k) Employment Law Matters. The Company and each of its Subsidiaries: (i) is in compliance with all applicable Laws and agreements regarding hiring, employment, termination of employment, plant closing and mass layoff, employment discrimination, harassment, retaliation, and reasonable accommodation, leaves of absence, terms and conditions of employment, wages and hours of work, employee classification, employee health and safety, use of genetic information, leasing and supply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and immigration with respect to Company Employees and contingent workers; and (ii) is in compliance with all applicable Laws relating to the relations between it and any labor organization, trade union, work council, or other body representing Company Employees, except, in the case of clauses (i) and (ii) immediately above, where the failure to be in compliance with the foregoing would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(l) Labor. Neither Company nor any of its Subsidiaries is party to, or subject to, any collective bargaining agreement or other agreement with any labor organization, work council, or trade union with respect to any of its or their operations. No material work stoppage, slowdown, or labor strike against the Company or any of its Subsidiaries with respect to employees who are employed within the United States is pending, threatened, or has occurred in the last two (2) years, and, to the Knowledge of the Company, no material work stoppage, slowdown, or labor strike against the Company or any of its Subsidiaries with respect to employees who are employed outside the United States is pending, threatened, or has occurred in the last two (2) years. None of the Company Employees is represented by a labor organization, work council, or trade union and, to the Knowledge of the Company, there is no organizing activity, Legal Action, election petition, union card signing or other union activity, or union corporate campaigns of or by any labor organization, trade union, or work council directed at the Company or any of its Subsidiaries, or any Company Employees. Except as set forth on Section 3.13(l) of the Company Disclosure Letter, there are no Legal Actions, government investigations, or labor grievances pending, or, to the Knowledge of the Company, threatened relating to any employment related matter involving any Company Employee or applicant, including, but not limited to, charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law, except for any of the foregoing which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.14 Real Property and Personal Property Matters.

(a) Owned Real Estate. The Company or one or more of its Subsidiaries has good and marketable fee simple title to the Owned Real Estate free and clear of any Liens other than the Permitted Liens. Section 3.14(a) of the Company Disclosure Letter contains a true and complete list by address and legal description of the Owned Real Estate as of the date hereof. Neither the Company nor any of its Subsidiaries: (i) lease or grant any Person the right to use or occupy all or any part of the Owned Real Estate; (ii) other than to Parent, has granted any Person an option, right of first offer, or right of first refusal to purchase such Owned Real Estate or any portion thereof or interest therein; or (iii) has received written notice of any pending, and to the Knowledge of the Company threatened, condemnation proceeding affecting any Owned Real Estate or any portion thereof or interest therein. Neither the Company nor any Subsidiary is a party to any agreement or option to purchase any real property or interest therein.

(b) Leased Real Estate. Section 3.14(b) of the Company Disclosure Letter contains a true and complete list of all Leases (including all amendments, extensions, renewals, guaranties, and other agreements with respect thereto) as of the date hereof for each such Leased Real Estate (including the date and name of the parties to such Lease document). The Company has delivered to Parent a true and complete copy of each such Lease. Except as set forth on Section 3.14(b) of the Company Disclosure Letter, with respect to each of the Leases: (i) such Lease is legal, valid, binding, enforceable, and in full force and effect; (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to the Lease, is in breach or default under such Lease, and no event has occurred or circumstance exists which, with or without notice, lapse of time, or both, would constitute a breach or default under such Lease; (iii) the Company’s or its Subsidiary’s possession and quiet enjoyment of the Leased Real Estate under such Lease has not been disturbed, and to the Knowledge of the Company, there are no disputes with respect to such Lease; and (iv) there are no Liens on the estate created by such Lease other than Permitted Liens. Neither the Company nor any of its Subsidiaries has assigned, pledged, mortgaged, hypothecated, or otherwise transferred any Lease or any interest therein nor has the Company or any of its Subsidiaries subleased, licensed, or otherwise granted any Person (other than another wholly-owned Subsidiary of the Company) a right to use or occupy such Leased Real Estate or any portion thereof.

(c) Real Estate Used in the Business. The Owned Real Estate identified in Section 3.14(a) of the Company Disclosure Letter and the Leased Real Estate identified in Section 3.14(b) of the Company Disclosure Letter comprise all of the real property used or intended to be used in, or otherwise related to, the business of the Company or any of its Subsidiaries.

(d) Personal Property. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and each of its Subsidiaries are in possession of and have good and marketable title to, or valid leasehold interests in or valid rights under contract to use, the machinery, equipment, furniture, fixtures, and other tangible personal property and assets owned, leased, or used by the Company or any of its Subsidiaries, free and clear of all Liens other than Permitted Liens.

Section 3.15 Environmental Matters. Except for such matters as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

(a) Compliance with Environmental Laws. The Company and its Subsidiaries are, and have been, in compliance with all Environmental Laws, which compliance includes the possession, maintenance of, compliance with, or application for, all Permits required under applicable Environmental Laws for the operation of the business of the Company and its Subsidiaries as currently conducted.

(b) No Disposal, Release, or Discharge of Hazardous Substances. Neither the Company nor any of its Subsidiaries has disposed of, released, or discharged any Hazardous Substances on, at, under, in, or from any real property currently or, to the Knowledge of the Company, formerly owned, leased, or operated by it or any of its Subsidiaries or at any other location that is: (i) currently subject to any investigation, remediation, or monitoring; or (ii) reasonably likely to result in liability to the Company or any of its Subsidiaries, in either case of (i) or (ii) under any applicable Environmental Laws.

(c) No Production or Exposure of Hazardous Substances. Neither the Company nor any of its Subsidiaries has: (i) produced, processed, manufactured, generated, transported, treated, handled, used, or stored any Hazardous Substances, except in compliance with Environmental Laws, at any Real Estate; or (ii) exposed any employee or any third party to any Hazardous Substances under circumstances reasonably expected to give rise to any material Liability or obligation under any Environmental Law.

(d) No Legal Actions or Orders. Neither the Company nor any of its Subsidiaries has received written notice of and there is no Legal Action pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, alleging any Liability or responsibility under or non-compliance with any Environmental Law or seeking to impose any financial responsibility for any investigation, cleanup, removal, containment, or any other remediation or compliance under any Environmental Law. Neither the Company nor any of its Subsidiaries is subject to any Order, settlement agreement, or other written agreement by or with any Governmental Entity or third party imposing any material Liability or obligation with respect to any of the foregoing.

(e) No Assumption of Environmental Law Liabilities. Neither the Company nor any of its Subsidiaries has expressly assumed or retained any Liabilities under any applicable Environmental Laws of any other Person, including in any acquisition or divestiture of any property or business.

Section 3.16 Material Contracts.

(a) Material Contracts. For purposes of this Agreement, “Company Material Contract” shall mean the following to which the Company or any of its Subsidiaries is a party or any of the respective assets are bound (excluding any Leases):

(i) each Contract of the Company or any of its Subsidiaries involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;

(ii) all Contracts that require the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;

(iii) all Contracts that provide for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person;

(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);

(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any of its Subsidiaries is a party;

(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancellable without material penalty or without more than 90 days’ notice;

(vii) except for Contracts relating to trade payables, all Contracts relating to indebtedness (including, without limitation, guarantees) of the Company or any of its Subsidiaries;

(viii) all Contracts with any Governmental Entity to which the Company or any of its Subsidiaries is a party (“Government Contracts”);

(ix) all Contracts that limit or purport to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time;

(x) any Contracts to which the Company or any of its Subsidiaries is a party that provide for any joint venture, partnership or similar arrangement by the Company;

(xi) all collective bargaining agreements or Contracts with any trade union to which the Company or any of its Subsidiaries is a party; and

(xii) any other Contract that is material to the Company or any of its Subsidiaries and not previously disclosed pursuant to this Section 3.16.

(b) Schedule of Material Contracts; Documents. Section 3.16(b) of the Company Disclosure Letter sets forth a true and complete list as of the date hereof of all Company Material Contracts. The Company has made available to Parent correct and complete copies of all Company Material Contracts, including any amendments thereto.

(c) No Breach. (i) All the Company Material Contracts are legal, valid, and binding on the Company or its applicable Subsidiary, enforceable against it in accordance with its terms, and is in full force and effect; (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any third party has violated any provision of, or failed to perform any obligation required under the provisions of, any Company Material Contract; and (iii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any third party is in breach, or has received written notice of breach, of any Company Material Contract.

Section 3.17 Insurance. All insurance policies maintained by the Company and its Subsidiaries are in full force and effect and provide insurance in such amounts and against such risks as the Company reasonably has determined to be prudent, taking into account the industries in which the Company and its Subsidiaries operate, and as is sufficient to comply with applicable Law. Neither the Company nor any of its Subsidiaries is in breach or default, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification of, any of such insurance policies. To the Knowledge of the Company: (i) no insurer of any such policy has been declared insolvent or placed in receivership, conservatorship, or liquidation; and (ii) no notice of cancellation or termination, other than pursuant to the expiration of a term in accordance with the terms thereof, has been received with respect to any such policy.

Section 3.18 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in any filing with the SEC, including the proxy statement to be filed with the SEC and sent to Parent’s stockholders in connection with the HoldCo Stock Issuance (including any amendments or supplements thereto, the “Proxy Statement”), will, at the date it is filed or first mailed to Parent’s stockholders or at the time of the Parent Stockholders Meeting or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

Section 3.19 Anti-Corruption Matters.

(a) Since January 1, 2018, each of the Company and its Subsidiaries and each Person acting on behalf or for the benefit thereof (i) is and has been in compliance with the Anti-Corruption Laws to the extent applicable to the Company or such Subsidiary, or Person acting on behalf or for the benefit thereof; (ii) none of the Company, any of its Subsidiaries or any director, officer or, to the Knowledge of the Company, employee or agent of the Company or any of its Subsidiaries has: (i) used or agreed to use any funds or any assets for unlawful contributions, gifts, entertainment, or expenses or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (ii) has directly or indirectly offered, promised, paid, given, or authorized the payment or giving of money or anything of value to any Government Official or other Person while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, promised, or given, directly or indirectly, to a Government Official or another Person for the purpose of (a) influencing any act or decision of such Government Official or other Person in his or her or its official capacity, (b) inducing such Government Official or other Person to do or omit to do an act in violation of his, her or its lawful duty, or (c) inducing such Government Official or other Person to use his, her or its influence or position with any Governmental Entity or other Person to influence any act or decision, in order to obtain or retain business for, direct business to, or secure any improper business or regulatory advantage for the Company or any of its Subsidiaries.

(b) Since January 1, 2018, neither the Company nor any of its Subsidiaries has disclosed to any Governmental Entity that it violated or may have violated any Law relating to anti-corruption, bribery, or similar matters. To the Knowledge of the Company, no Governmental Entity is investigating, examining, or reviewing the Company’s compliance with any applicable provisions of any Law relating to anti-corruption, bribery, or similar matters.

(c) The Company and each of its Subsidiaries has at all times maintained accounting and financial controls adequate to ensure that: (a) all payments and activities have been accurately recorded in such company’s books, records, and accounts; (b) there have been no false, inaccurate, misleading, or incomplete entries made in such company’s books, records and accounts; and (c) such company has not established or maintained any secret, or unrecorded funds or accounts. The books, records and accounts of the Company and each of its Subsidiaries accurately reflect in reasonable detail the character and amount of all transactions, and no such company has had or maintained any bank or other financial account that is not or was not accurately disclosed in such entity’s books, records and accounts.

Section 3.20 FDA and Regulatory Matters.

(a) The Company is in material compliance with all applicable Health Care Laws, which affect the business, Product Candidates, properties, assets and activities of the Company, (ii) there is no pending or, to the Company’s Knowledge, threatened action against the Company alleging any violation by the Company of any such Health Care Law, (iii) each of the Company’s Product Candidates has been developed, manufactured, labeled, stored, tested and otherwise produced in material compliance with applicable Health Care Laws, (iv) the Company holds, and is operating and has operated in material compliance with, all Regulatory Authorizations required by applicable Health Care Laws relating to the business, Product Candidates, properties, assets and activities of the Company and (v) the Company has fulfilled and performed all of its material obligations with respect to such Regulatory Authorizations, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof. With respect to each of its Product Candidates, the Company has made available to Parent complete and accurate copies of all material clinical and preclinical data in the possession of the Company and all material written correspondence between the Company and the applicable Regulatory Authority, in each case as requested by Parent.

(b) All preclinical and clinical trials conducted by or on behalf of the Company are being, or have been, conducted in material compliance with the required experimental protocols, procedures and controls, and all applicable Health Care Laws, including the FDCA and its applicable implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312, all applicable requirements of Good Clinical Practice, Informed Consent and the requirements and conditions imposed by the relevant “Institutional Review Board,” as such term is defined by the FDA, and all applicable Health Care Laws of the relevant Regulatory Authorities outside the United States. No clinical trial conducted by or on behalf of the Company has been terminated or suspended by the FDA or any other applicable Regulatory Authority or Institutional Review Board, and neither the FDA nor any other applicable Regulatory Authority has commenced or threatened in writing to initiate, any action to place a clinical hold order on, or otherwise terminate, delay, suspend or materially restrict, any proposed or ongoing clinical trial conducted or proposed to be conducted by or on behalf of the Company.

(c) All manufacturing operations conducted by, or for the benefit of, the Company with respect to any Product Candidate being used in human clinical trials have been and are being conducted in all material respects in accordance with the applicable requirements of Good Manufacturing Practices. With the exception of the Complete Response Letter from the FDA, dated July 22, 2021, in response to the submission of NDA 212282, neither the Company nor, to the Knowledge of the Company, any Person acting on its behalf has, with respect to any Product Candidate, (i) been subject to a Regulatory Authority (including FDA) shutdown or import or export prohibition or (ii) received any FDA Form 483, or other Regulatory Authority notice of inspectional observations, “warning letters,” “untitled letters” or written requests or requirements to make any change to any Product Candidate or any of the Company’s processes or procedures, or any similar correspondence or notice from the FDA or any other Regulatory Authority in respect of the Company or its business operations alleging or asserting noncompliance with any applicable Law, permit or such requests or requirements of a Regulatory Authority and, to the Knowledge of the Company, neither the FDA nor any Regulatory Authority is considering such action.

(d) All applications, notifications, submissions, information, claims, reports, statistics and other data utilized as the basis for, or submitted in connection with, any and all Regulatory Authorizations from the FDA or any other Regulatory Authority relating to the Company, its business operations, Product Candidates, when submitted to the FDA or such other Regulatory Authority were complete and accurate in all material respects as of the date of submission and any necessary or required updates, changes, corrections or modifications to such applications, submissions, information and data have been submitted to the FDA or such other Regulatory Authority. None of the Company or any of its officers, employees, agents or, to the Knowledge of the Company, any clinical investigator acting for the Company, has committed any act, made any statement or failed to make any statement that would reasonably be expected to provide a basis for the FDA to invoke its policy with respect to “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. None of the Company or any of its officers, employees, agents or, to the Knowledge of the Company, any clinical investigator acting for the Company, has been convicted of any crime or engaged in any conduct that would reasonably be expected to result, or has resulted, in (i) debarment under 21 U.S.C. Section 335a or any similar Law, or (ii) exclusion under 42 U.S.C. Section 1320a-7 or any similar Law.

(e) No Product Candidate that is or has been manufactured, tested, distributed, held or marketed by or on behalf of the Company has been recalled, withdrawn, or suspended (whether voluntarily or otherwise). No proceedings (whether completed or pending) seeking the recall, withdrawal, suspension or seizure of any such Product Candidate or pre-market approvals or marketing authorizations are pending or, to the Knowledge of the Company, threatened against the Company or any of its Affiliates, nor have any such proceedings been pending at any time. The Company has made available to Parent all information about material adverse drug experiences obtained or otherwise received by the Company from any source, in the United States or outside the United States, including information derived from clinical investigations prior to any market authorization approvals, commercial marketing experience, clinical investigations, surveillance studies or registries, reports in the scientific literature and unpublished scientific papers relating to any Product Candidate that is or has been manufactured, tested, distributed, held or marketed by or on behalf of the Company or any of its licensors or licensees in the possession of the Company (or to which it has access). In addition, the Company has filed all annual and periodic reports, amendments and safety reports required for any of its Product Candidates required to be made to the FDA or any other Governmental Entity.

Section 3.21 Transactions with Affiliates and Employees. Except as disclosed in Section 3.21 of the Company Disclosure Schedules, none of the officers or directors of the Company or any of its Subsidiaries and, to the knowledge of the Company, none of the employees of the Company or any of its Subsidiaries is presently a party to any transaction with the Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of 1% of the average of the Company’s total assets as of the ends of its last two completed fiscal years, other than for (i) payment of salary or consulting fees for services rendered (if such person is an employee), (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any equity incentive plan of the Company.

Section 3.22 Anti-Money Laundering. The operations of the Company and its Subsidiaries have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company, threatened.

ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PARENT ENTITIES

Except: (a) as disclosed in the Parent SEC Documents and that is reasonably apparent on the face of such disclosure to be applicable to the representation and warranty set forth herein (other than any disclosures contained or referenced therein under the captions “Risk Factors,” “Forward-Looking Statements,” “Quantitative and Qualitative Disclosures About Market Risk,” and any other disclosures contained or referenced therein of information, factors, or risks that are predictive, cautionary, or forward-looking in nature); or (b) as set forth in the correspondingly numbered Section of the Parent Disclosure Letter that relates to such Section or in another Section of the Parent Disclosure Letter to the extent that it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such Section; each of the Parent Entities hereby jointly and severally represent and warrant to the Company as follows:

Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries.

(a) Organization; Standing and Power. Each of the Parent Entities and their respective Subsidiaries is a corporation, limited liability company, or other legal entity duly organized, validly existing, and in good standing (to the extent that the concept of “good standing” is applicable in the case of any jurisdiction outside the United States) under the Laws of its jurisdiction of organization, and has the requisite corporate, limited liability company, or other organizational, as applicable, power and authority to own, lease, and operate its assets and to carry on its business as now conducted. Each of the Parent Entities and their respective Subsidiaries is duly qualified or licensed to do business as a foreign corporation, limited liability company, or other legal entity and is in good standing (to the extent that the concept of “good standing” is applicable in the case of any jurisdiction outside the United States) in each jurisdiction where the character of the assets and properties owned, leased, or operated by it or the nature of its business makes such qualification or license necessary, except where the failure to be so qualified or licensed or to be in good standing, would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(b) Charter Documents. The copies of the Certificate of Incorporation and Bylaws of Parent as most recently filed with the Parent SEC Documents are true, correct, and complete copies of such documents as in effect as of the date of this Agreement. Parent has delivered or made available to the Company true and correct copies of the Charter Documents of the other Parent Entities. None of the Parent Entities is in violation of any of the provisions of its respective Charter Documents.

(c) Subsidiaries. All of the outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of Parent have been validly issued and are owned by Parent, directly or indirectly, free of pre-emptive rights, are fu