Yarrow Bioscience（YARW.US）盘后 8-K 只是 9 月 10 日已定价增发的收盘备案：663.5 万股、发行价 26 美元、净募资约 1.618 亿美元

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 10, 2026
Yarrow Bioscience, Inc.
(Exact Name of Registrant as Specified in its
Charter)
Delaware
001-38356
45-3757789
(State
or Other Jurisdiction
of Incorporation)
(Commission
File
Number)
(IRS
Employer
Identification No.)
470
James Street
,
Suite 007
,
New Haven
,
CT
06513
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including area code: (
203
)
433-7577
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange
on which registered
Common
Stock, $0.0001 par value
YARW
The
Nasdaq
Capital Market
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
¨
Item 1.01
Entry into a Material Definitive Agreement.
On September 10, 2026, Yarrow Bioscience, Inc. (the “Company”)
entered into an underwriting agreement (“Underwriting Agreement”) with Jefferies LLC, TD Securities (USA) LLC and Guggenheim
Securities, LLC, as the representatives of the underwriters named therein (the “Underwriters”), to issue and sell 5,769,231
shares of the Company’s common stock at a public offering price of $26.00 per share (the “Offering”). In addition, the
Company has granted the Underwriters an option (the “Option”) for a period of 30 days to purchase up to an additional 865,384
shares of its common stock at the public offering price, less the underwriting discounts and commissions, which the Underwriters exercised
in full on September 11, 2026.
The net proceeds from the Offering, including proceeds from the exercise
in full of the Option by the Underwriters, are expected to be approximately $161.8 million, after deducting the Underwriters’ discounts
and commissions and estimated offering expenses payable by the Company.
The securities described above were offered pursuant to the Company’s
shelf registration statement on Form S-3 (File No. 333-277609), as amended by Post-Effective Amendment No. 1 thereto, which was declared
effective by the U.S. Securities and Exchange Commission (the “SEC”) on August 19, 2026. A final prospectus supplement dated
September 10, 2026 relating to and describing the terms of the Offering was filed with the SEC on September 11, 2026. The Offering is
expected to close on September 14, 2026.
The Underwriting Agreement contains customary representations, warranties
and agreements by the Company, customary conditions to closing and other obligations of the parties. In addition, the Company’s
directors and executive officers have entered into lock-up agreements pursuant to which they have agreed, subject to certain exceptions,
not to sell or otherwise dispose of shares of the Company’s common stock for a period of 60 days after the date of the final prospectus
supplement without the prior written consent of Jefferies LLC and TD Securities (USA) LLC. In the Underwriting Agreement, the Company
agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribute to payments that the Underwriters may be required to make because of such liabilities.
A copy of the Underwriting Agreement is filed as Exhibit 1.1 and is
incorporated herein by reference. The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified
in its entirety by reference to such exhibit.
A copy of the opinion of Gibson, Dunn & Crutcher
LLP relating to the validity of the issuance and sale of the shares of the common stock in the Offering is filed herewith as Exhibit
5.1.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
EXHIBIT INDEX
Exhibit
No.
Description
1.1
Underwriting
Agreement, dated as of September 10, 2026, by and among Yarrow Bioscience, Inc., Jefferies LLC, TD Securities (USA) LLC and Guggenheim
Securities, LLC, as representatives of the several underwriters named therein
5.1
Opinion
of Gibson, Dunn & Crutcher LLP
23.1
Consent
of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1)
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
YARROW BIOSCIENCE, INC.
Date: September 14, 2026
By:
/s/ Rebecca Frey
Rebecca Frey
Chief Executive Officer

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EX-1.1
2
tm2624918d3_ex1-1.htm
EXHIBIT 1.1
Exhibit 1.1
Execution Version
5,769,231 Shares of Common Stock
Yarrow Bioscience, Inc.
UNDERWRITING AGREEMENT
September 10, 2026
JEFFERIES
LLC
TD SECURITIES (USA) LLC
GUGGENHEIM SECURITIES, LLC
As Representatives of the several Underwriters
c/o JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
c/o TD SECURITIES (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017
c/o GUGGENHEIM SECURITIES, LLC
330 Madison Avenue, 8th Floor
New York, New York 10017
Ladies and Gentlemen:
Introductory.
Yarrow Bioscience, Inc., a Delaware corporation (the “
Company
”), proposes to issue and sell to the several underwriters
named in
Schedule A
(the “
Underwriters
”) an aggregate of 5,769,231 shares of its common stock, par value $0.0001
per share (the “
Shares
”). The 5,769,231 Shares to be sold by the Company are called the “
Firm Shares
.”
In addition, the Company has granted to the Underwriters an option to purchase up to an additional 865,384 Shares as provided in
‎Section
2
(the “
Optional Shares
”). The Firm Shares and, if and to the extent such option is exercised, the Optional
Shares are collectively called the “
Offered Shares
.” Jefferies LLC (“
Jefferies
”), TD Securities
(USA) LLC (“
TD Cowen
”) and Guggenheim Securities, LLC have agreed to act as representatives of the several Underwriters
(in such capacity, the “
Representatives
”) in connection with the offering and sale of the Offered Shares. To the extent
there are no additional underwriters listed on
Schedule A
, the term “Representatives” as used herein shall mean you,
as Underwriters, and the term “Underwriters” shall mean either the singular or the plural, as the context requires.
The
Company has prepared and filed with the Securities and Exchange Commission (the “
Commission
”) a shelf registration
statement on Form S-3, File No. 333-277609, including a base prospectus (the “
Base Prospectus
”) to be used
in connection with the public offering and sale of the Offered Shares. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (collectively, the “
Securities Act
”), including all documents incorporated
or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness pursuant
to Rule 430A or 430B under the Securities Act, is called the “
Registration Statement
.” Any registration statement
filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the Offered Shares is called
the “
Rule 462(b) Registration Statement
,” and from and after the date and time of filing of any such Rule 462(b) Registration
Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The preliminary prospectus
supplement dated September 10, 2026 describing the Offered Shares and the offering thereof (the “
Preliminary Prospectus Supplement
”),
together with the Base Prospectus, is called the “
Preliminary Prospectus
,” and the Preliminary Prospectus and any other
prospectus supplement to the Base Prospectus in preliminary form that describes the Offered Shares and the offering thereof and
is used prior to the filing of the Prospectus (as defined below), together with the Base Prospectus, is called a “
preliminary
prospectus
.” As used herein, the term “
Prospectus
” shall mean the final prospectus supplement to the Base
Prospectus that describes the Offered Shares and the offering thereof (the “
Final Prospectus Supplement
”), together
with the Base Prospectus, in the form first used by the Underwriters to confirm sales of the Offered Shares or in the form first made
available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act. References
herein to the Preliminary Prospectus, any preliminary prospectus and the Prospectus shall refer to both the prospectus supplement and
the Base Prospectus components of such prospectus. As used herein, “
Applicable Time
” is 7:00 p.m. (New York City time)
on September 10, 2026. As used herein, “
free writing prospectus
” has the meaning set forth in Rule 405 under the Securities
Act, and “
Time of Sale Prospectus
” means the Preliminary Prospectus, as amended or supplemented immediately prior to
the Applicable Time, together with the free writing prospectuses, if any, identified in
Schedule B
hereto. As used herein,
“Road
Show”
means a “road show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Offered
Shares contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act) and “
Marketing
Materials
” means any materials or information provided to investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Offered Shares, including any roadshow or investor presentations made to investors by the Company
(whether in person or electronically).
All
references in this Agreement to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus
and the Prospectus shall include the documents incorporated or deemed to be incorporated by reference therein. All references in this
Agreement to financial statements and schedules and other information which are “contained,” “included” or “stated”
in, or “part of” the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import, shall be deemed
to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference
in the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base
Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be.
All references in this Agreement to amendments or
supplements to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (collectively, the “
Exchange Act
”) that is or is deemed
to be incorporated by reference in the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus,
or the Prospectus, as the case may be. All references in this Agreement to (i) the Registration Statement, the Preliminary Prospectus,
any preliminary prospectus, the Base Prospectus or the Prospectus, any amendments or supplements to any of the foregoing, or any free
writing prospectus, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“
EDGAR
”) and (ii) the Prospectus shall be deemed to include any “electronic Prospectus” provided
for use in connection with the offering of the Offered Shares as contemplated by Section 3(n) of this Agreement.
In the event that the Company has only one subsidiary,
then all references herein to “subsidiaries” of the Company shall be deemed to refer to such single subsidiary,
mutatis
mutandis
.
2
The Company hereby confirms its agreements with
the Underwriters as follows:
Section
1.
Representations
and Warranties.
The Company hereby represents, warrants and covenants
to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and as of each Option Closing
Date (as hereinafter defined), if any, as follows:
(a)
Compliance with Registration Requirements
.
The Registration Statement has become effective under the Securities
Act. The Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental
information, if any. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such
purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission. At
the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2025 (the “
Annual Report
”)
was filed with the Commission, or, if later, at the time the Registration Statement was originally filed with the Commission, the Company
met the then-applicable requirements for use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed
with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects
with the requirements of the Exchange Act.
(b)
Disclosure
.
Each preliminary prospectus and the Prospectus when filed complied in all material respects with
the Securities Act and, if filed by electronic transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T
under the Securities Act) to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Offered
Shares. Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied
and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable
Time, the Time of Sale Prospectus did not, and at the First Closing Date (as defined in
‎Section 2
)
and at each applicable Option Closing Date (as defined in Section 2), will not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Prospectus
,
as of its date, did not, and at the First Closing Date and at each applicable Option Closing Date, as then amended
or supplemented by the Company, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company in writing
by the Representatives expressly for use therein, it being understood and agreed that the only such information consists of the information
described in
‎Section 9(b)
below. There are no contracts or other documents required to be described
in the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described
or filed as required.
3
(c)
Free Writing Prospectuses; Road Show
.
As of the determination date referenced in Rule 164(h) under the Securities
Act, the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of
the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that the Company is required
to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending,
as applicable, and each such free writing prospectus, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Offered Shares did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the Prospectus or any preliminary prospectus unless such information has
been superseded or modified as of such time. The representations and warranties set forth in the immediately preceding sentence do not
apply to statements made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company
in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information consists of
the information described in ‎Section 9(b) below. Except for the free writing prospectuses, if any, identified in
Schedule B
,
and electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not,
without your prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), prepare, use or refer to,
any free writing prospectus. Each Road Show, when considered together with the Time of Sale Prospectus, did not, as of the Applicable
Time, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d)
Distribution of Offering Material By the Company
.
Prior to the later of (i) the expiration or termination of
the option granted to the several Underwriters in
‎Section 2
and (ii) the completion of
the Underwriters’ distribution of the Offered Shares
,
the Company has not distributed and will not distribute any offering
material in connection with the offering and sale of the Offered Shares other than the Registration Statement, the Time of Sale Prospectus,
the Prospectus or any free writing prospectus reviewed and consented to by the Representatives, the free writing prospectuses, if any,
identified on
Schedule B
hereto.
(e)
The Underwriting Agreement
.
This Agreement has been duly authorized, executed and delivered by the Company.
(f)
Authorization of the Offered Shares
.
The offering and sale of the Offered Shares, the execution, delivery and
performance of this Agreement by the Company, the consummation of the transactions contemplated hereby, and the application of the proceeds
from the sale of the Offered Shares as described under “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus
will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance
upon any property or assets of the Company and the Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license, lease or other agreement or instrument to which the Company or any of its subsidiaries (each a “
Subsidiary
”
and collectively, the “
Subsidiaries
”) is a party or by which the Company or any Subsidiary is bound or to which any
of the property or assets of the Company or any Subsidiary is subject; (ii) result in any violation of the provisions of the articles
of association, charter or by-laws (or similar organizational documents) of the Company or of any Subsidiary; or (iii) result in any violation
of any statute or any judgment, order, decree, rule or regulation of any Governmental Authority having jurisdiction over the Company or
any Subsidiary or any of their properties or assets, except, for purposes of clauses (i) and (iii) above, any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect (as defined below). As used herein, “
Governmental Authority
” means (i) any federal, provincial, state, local,
municipal, national or international government or governmental authority, regulatory or administrative agency, governmental commission,
department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory
organization; or (iii) any political subdivision of any of the foregoing. The Offered Shares, when issued and delivered pursuant to the
terms approved by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee,
against payment therefor as provided herein, will be validly issued, fully paid and non-assessable, will conform in all material respects
to the description thereof contained in the Prospectus, will be issued in compliance with U.S. federal and state securities laws, and
will be free of statutory and contractual preemptive rights, rights of first refusal and any other similar rights of any shareholder,
and the issuance and sale of the Offered Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Offered Shares.
4
(g)
Approval of Listing of Offered Shares
.
The Offered Shares to be sold by the Company have been approved for listing,
subject to official notice of issuance and evidence of satisfactory distribution, on Nasdaq.
(h)
No Applicable Registration or Other Similar Rights
.
Except as disclosed in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person. The Company is not required to include any securities with the securities being offered
and sold pursuant to this Agreement.
(i)
No Material Adverse Change.
Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale
Prospectus and the Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected
to result in a material adverse change, in (A) the condition, financial or otherwise, or in the earnings, business, properties, operations,
operating results, assets, liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity or (B) the ability of the Company to consummate the transactions contemplated by
this Agreement or perform its obligations thereunder (any such change being referred to herein as a “
Material Adverse Change
”
or “
Material Adverse Effect
”); (ii) the Company and its subsidiaries, considered as one entity, have not incurred
any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference with their
business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike,
labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and
its subsidiaries, considered as one entity, and have not entered into any material transactions not in the ordinary course of business;
and (iii) there has not been any material decrease in the capital stock or any material increase in any short-term or long-term indebtedness
of the Company or its subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, by any of the Company’s subsidiaries on any class of capital stock,
or any repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(j)
Independent Accountants
.
Baker Tilly US, LLP (“
Baker Tilly
”), the Company’s auditor
for the fiscal year ended December 31, 2025, are independent public accountants as required by the Securities Act and Securities Act regulations.
To the Company’s knowledge, Baker Tilly is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act with
respect to the Company.
(k)
Financial Statements
.
The historical financial statements (including the related notes and supporting schedules)
included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, comply as to form
in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly in all material respects
the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity in all material respects with accounting principles generally accepted in the United States
(“
GAAP
”) applied on a consistent basis throughout the periods involved. The pro forma financial statements (including
the notes thereto) or other pro forma financial information included in the Prospectus (i) comply as to form in all material respects
with the applicable requirements of Regulation S-X, (ii) have been prepared in accordance with the Commission’s applicable rules
and guidelines with respect to pro forma financial statements and (iii) have been properly computed and presented on the bases described
therein; and the assumptions used in preparing the pro forma financial statements or other pro forma financial information included in
the Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical financial statement amounts. The interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus
fairly present the information called for in all material respects and are prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
5
(l)
No Off-Balance Sheet Transactions
.
There are no transactions, arrangements and other relationships between and/or
among the Company, and/or any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance,
special purpose or limited purpose entity (each, an “
Off-Balance Sheet Transaction
”) that could reasonably be
expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including
those Off-Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which
have not been described as required.
(m)
Company’s Accounting System
.
The Company and its Subsidiaries maintain a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange
Act and that has been designed by, or under the supervision of, the Company’s principal executive and principal financial officers,
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with GAAP. The Company and its Subsidiaries maintain internal accounting controls sufficient to provide reasonable
assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for its assets, (iii) access
to the Company’s assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for the Company’s assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting. Since the date of the most recent balance sheet of the Company reviewed or audited by Baker Tilly, the Company has not been
advised of or become aware of any fraud, whether or not material, that involves management or other employees who have a significant role
in the internal controls of the Company and the Subsidiaries.
(n)
Disclosure Controls and Procedures
.
(i) The Company and the Subsidiaries maintain disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure
that the information required to be disclosed by the Company and the Subsidiaries in the reports they file or submit under the Exchange
Act is accumulated and communicated to management of the Company and the Subsidiaries, including their respective principal executive
officers and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure to be made, and (iii)
such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
6
(o)
Incorporation and Good Standing of the Company and its Subsidiaries
.
Each of the Company and its Subsidiaries
has been duly organized, is validly existing and in good standing (where such concept is applicable) as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing (where such concept
is applicable) as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report
on Form 10-K for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1
by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most recently
ended fiscal year.
(p)
Capitalization and Other Capital Stock Matters
.
Except as disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, the Company has an authorized capitalization as set forth in the latest balance sheet incorporated
by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with
federal and state securities laws, and conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus.
The Shares (including the Offered Shares) conform in all material respects to the description thereof contained in the Time of Sale Prospectus.
All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly and validly authorized and issued and were issued in compliance with federal and state securities laws. None
of the outstanding Shares was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of the Company. All of the Company’s options, warrants and other rights to purchase or exchange any securities
for shares of the Company have been duly authorized and validly issued, and conform to the description thereof contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. The description of the Company’s stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted thereunder, as described in the Prospectus, accurately and fairly
presents the information required to be shown with respect to such plans, arrangements, options and rights.
(q)
Option Grants
.
All grants and issuances of the Company’s shares to its or its Subsidiaries’ employees
were made pursuant to the equity compensation plans of the Company. With respect to the options to purchase Company shares (the “
Stock
Options
”), (i) to the Company’s knowledge, each Stock Option purported to be issued under Section 102 of the Israel
Tax Ordinance qualifies for treatment under that section and for treatment under the capital gains track, (ii) to the Company’s
knowledge, each Stock Option, if any, intended to qualify as an “incentive stock option” under Section 422 of the Internal
Revenue Code of 1986, as amended (the “
Code
”), so qualifies, and (iii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock Option was by its terms to be effective by all necessary corporate
action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof)
and any required shareholder approval by the necessary number of votes or written consents, or, if any such corporate action was taken
after the effective grant date of any Stock Option, it authorized such Stock Option as of its effective grant date, and the award agreement
governing such grant (if any) was duly executed and delivered by each party thereto. Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, as of the date referred to therein, the Company does not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments
to issue or sell, any shares of capital stock or other securities.
7
(r)
Stock Exchange Listing
.
The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently
listed on Nasdaq under the trading symbol “YARW.” The Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Common Stock under the Exchange Act, delisting the Common Stock from Nasdaq, nor has the Company
received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of Nasdaq.
(s)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required
.
No consent, approval,
authorization or order of, or filing, registration or qualification with, any Governmental Authority having jurisdiction over the Company
or any Subsidiary or any of their properties or assets is required for the offer and sale of the Offered Shares, the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions contemplated hereby, the application of the proceeds
from the sale of the Offered Shares as described under “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus,
except for (i) the registration of the Offered Shares under the Securities Act; (ii) such consents, approvals, authorizations, orders,
filings, registrations or qualifications as may be required under the Exchange Act, and applicable state or foreign securities laws or
the bylaws and rules of FINRA in connection with the sale of the Offered Shares by the Underwriters; and (iii) the transaction notification
to Nasdaq.
(t)
No Default
.
Neither the Company nor any of its Subsidiaries (i) is in violation of its articles of association,
charter or by-laws (or similar organizational documents), (ii) is in default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due performance or observance of any term, covenant, condition or other obligation
contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject, or (iii) is in violation of any statute or any order, rule
or regulation of any Governmental Authority having jurisdiction over it or its property or assets or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(u)
Compliance with Laws.
The Company has not been advised, and has no reason to believe, that it and each of its
subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, except where failure to be so in compliance would not result in a Material Adverse Effect.
(v)
No Material Actions or Proceedings
.
Except as disclosed in the Registration Statement or the Time of Sale Prospectus,
there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property
or assets of the Company or any Subsidiary is the subject that could, in the aggregate, reasonably be expected to have a Material Adverse
Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by Governmental Authorities or others. No labor disturbance by or dispute with the employees of the Company or any of its Subsidiaries
exists or, to the knowledge of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect.
8
(w)
Intellectual Property Rights
.
Except as would not reasonably be expected to have a Material Adverse Effect, the
Company owns or possesses adequate rights to use all patent applications, patents, trademarks, trade names, trademark registrations, service
marks, service mark registrations, copyrights, licenses, knowhow, software, systems and technology (including trade secrets and other
unpatented or un-patentable proprietary or confidential information, systems or procedures) (collectively, the “
Intellectual
Property
”) necessary for the conduct of its business as currently conducted or as proposed in the Registration Statement, the
Time of Sale Prospectus and the Prospectus to be conducted. The Company owns all Intellectual Property described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus as being owned by it (“
Company Intellectual Property
”). To the Company’s
knowledge, and except as disclosed in the Registration Statement or the Prospectus: (i) there are no third parties who have material rights
to any Company Intellectual Property; and (ii) there is no infringement by third parties of any Company Intellectual Property. Except
as would not reasonably be expected to have a Material Adverse Effect, there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Company Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging
the validity, enforceability or scope of any Company Intellectual Property, and the Company is unaware of any facts which would form a
reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or its Subsidiaries infringe or otherwise
violate, or would, upon the commercialization of any product or service described in the Registration Statement, the Time of Sale Prospectus
or the Prospectus as under development, infringe or violate, any Intellectual Property of others, and the Company is unaware of any facts
which would form a reasonable basis for any such action, suit, proceeding or claim. The Company and its Subsidiaries have complied in
all material respects with the terms of any agreement pursuant to which Intellectual Property has been licensed to the Company or such
Subsidiary, and all such agreements are in full force and effect. The product candidates described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus fall within the scope of the claims of one or more patents or patent applications owned by
the Company, though not all features or aspects of such product candidates are necessarily protected by such claims.
(x)
All Necessary Permits, etc
.
The Company and its Subsidiaries possess such valid and current certificates, registrations,
approvals, authorizations or permits required by state, federal or foreign, including Israeli, regulatory agencies or bodies to conduct
their respective businesses as currently conducted and as described in the Registration Statement, the Time of Sale Prospectus or the
Prospectus (“
Permits
”), except where the failure to possess any Permits would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in violation of, or
in default under, any of the Permits, except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, nor has the Company or any of its Subsidiaries received any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such material Permit. Neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any Permits which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
9
(y)
Healthcare Laws
.
The Company, its Subsidiaries and, to the Company’s knowledge, their respective directors,
officers, employees, and agents (while acting in such capacity) are, and at all times prior hereto have been, in compliance with all health
care laws and regulations applicable to the Company, its Subsidiaries or any of their respective products, product candidates or activities,
including such laws and regulations relating to any aspect of the development, testing, manufacturing, sales and marketing of health care
or pharmaceutical products, kickbacks, recordkeeping, documentation requirements, the hiring of employees, quality, safety, privacy, security,
licensure or accreditation, including, without limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the
federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the civil False Claims Act (31 U.S.C. § 3729 et seq.), the criminal
False Claims Law (42 U.S.C. § 1320a-7b(a)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), all criminal laws relating
to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286, 287, 1035, 1347 and 1349, and the health care fraud
criminal provisions under the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), as amended
by the Health Information Technology for Economic and Clinical Health Act of 2009 (42 U.S.C. § 17921 et seq.), the exclusion laws
(42 U.S.C. § 1320a-7), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), the Physician
Payments Sunshine Act (42 U.S.C. § 1320a-7h), and the regulations promulgated pursuant to such laws, and comparable state laws, and
all other local, state, federal, national, supranational, and foreign laws relating to the regulation of the Company, including the collection
and reporting requirements, and the processing of any applicable rebate, chargeback or adjustment, under applicable rules and regulations
relating to the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8) and any state supplemental rebate program, Medicare average sales
price reporting (42 U.S.C. § 1395w-3a), the Public Health Service Act (42 U.S.C. § 256b), the VA Federal Supply Schedule (38
U.S.C. § 8126) or under any state pharmaceutical assistance program or U.S. Department of Veterans Affairs agreement, and any successor
government programs (collectively, “
Health Care Laws
”), except where such noncompliance would not, individually
or in the aggregate, have a Material Adverse Effect. None of the Company, its Subsidiaries or any of their respective directors,
officers or employees acting in such capacity has engaged in any activities which are, as applicable, cause for federal or state false
claims act liability, civil monetary penalties under the federal Civil Monetary Penalties Law, or mandatory or permissive exclusion from
any local, state or federal healthcare program. Except as set forth in the Registration Statement and Prospectus or as would not reasonably
be expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has received any notification, correspondence
or any other written or oral communication, including notification of any pending or threatened claim, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any Governmental Authority, including, without limitation, the United States Food and
Drug Administration (“
FDA
”), the Drug Enforcement Administration, the Centers for Medicare & Medicaid Services,
the U.S. Department of Health and Human Services Office of Inspector General, the Department of Justice and the Ministry of Health of
the State of Israel, of potential or actual non-compliance by, or liability of, the Company or its Subsidiaries under any Health Care
Laws. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to give rise to liability
of the Company or its Subsidiaries under any Health Care Laws.
(z)
Research & Development Sites
.
Except as disclosed in the Registration Statement, the Time of Sale Prospectus
or the Prospectus or as would not reasonably be expected to have a Material Adverse Effect, during the last three years, the Company has
not had any research and development site (whether Company-owned or that of a contractor or a joint developer for Company product candidates)
subject to a Governmental Authority (including FDA) shutdown or import or export prohibition, nor received any FDA Form 483 or other written
Governmental Authority notice of inspectional observations, “warning letters,” “untitled letters,” requests to
make changes to the Company product candidates, processes or operations, or similar written correspondence or notice from the FDA or other
Governmental Authority alleging or asserting material noncompliance with any applicable Health Care Laws. To the Company’s knowledge,
neither the FDA nor any other Governmental Authority is considering such action.
10
(aa)
Safety Notices
.
Except as would not reasonably be expected to have a Material Adverse Effect, (i) there are no
recalls, field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator
notices, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company
products (“
Safety Notices
”) during the last three years and (ii) to the Company’s knowledge, there are
no material complaints with respect to the Company products that are currently unresolved. There are no Safety Notices, or, to the Company’s
knowledge, material product complaints with respect to the Company products, and to the Company’s knowledge, there are no facts
that would be reasonably likely to result in (i) a material Safety Notice with respect to the Company products, (ii) a material change
in labeling of any of the Company products, or (iii) a termination or suspension of marketing or testing of any of the Company products.
(bb)
Clinical Trials
.
The clinical and preclinical studies and tests conducted by the Company, and, to the knowledge
of the Company, the clinical and preclinical studies and tests conducted on behalf of or sponsored by the Company or its Subsidiaries,
were, and if still pending, are, being conducted in all material respects in accordance with all applicable Health Care Laws and standard
medical and scientific research procedures, including, but not limited to, the Federal Food, Drug and Cosmetic Act and its applicable
implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312. Any descriptions of clinical, preclinical and other studies
and tests, including any related results and regulatory status, contained in the Registration Statement, the Time of Sale Prospectus or
the Prospectus are accurate in all material respects. Except as disclosed in the Registration Statement, the Time of Sale Prospectus
or the Prospectus and to the Company’s knowledge, there are no studies, tests or trials the results of which reasonably call into
question in any material respect the clinical trial results described or referred to in the Registration Statement, the Time of Sale Prospectus
or the Prospectus. Except as disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus, neither the
FDA nor any applicable foreign regulatory agency has commenced, or, to the Company’s knowledge, threatened to initiate, any action
to place a clinical hold order on, or otherwise terminate, delay or suspend, any proposed or ongoing clinical study or trial conducted
or proposed to be conducted by or on behalf of the Company. The Company has made all such filings and obtained all such approvals
as may be required by the Israeli Ministry of Health, the FDA or any committee thereof or from any other U.S., Israeli or foreign government
or drug or medical device regulatory agency, or health care facility Institutional Review Board (collectively, the “
Regulatory
Agencies
”), and the Company has operated and currently is in compliance in all material respects with all applicable rules,
regulations and policies of the Regulatory Agencies,
except
where the failure to make such filings, obtain such approval or comply
with such rules, regulations and policies could not reasonably be expected to, individually or in the aggregate, result in a Material
Adverse Effect.
(cc)
No Reporting Obligations
.
Neither the Company nor any of its Subsidiaries is a party to or has any ongoing reporting
obligations pursuant to any corporate integrity agreements, monitoring agreements, deferred prosecution agreements, consent decrees, settlement
orders, or similar agreements with or imposed by any Governmental Authority.
(dd)
No Bad Actors
.
None of the Company, its Subsidiaries or any of its respective directors, officers, employees
or, to the Company’s knowledge, agents, is debarred, suspended or excluded, or has been convicted of any crime or engaged in any
conduct that could result in a debarment or exclusion, from any federal or state government health care program under 21 U.S.C. Sec. 335a
or any similar state law, rule or regulation. Except as disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus,
no claims, actions, proceedings or investigations that would reasonably be expected to result in such a debarment, suspension or exclusion
are pending or, to the Company’s knowledge, threatened against the Company, its Subsidiaries or any of its respective directors,
officers, employees or agents.
(ee)
Export and Import Laws
.
Each of the Company and its Subsidiaries, and, to the Company’s knowledge, each
of their affiliates and any director, officer, agent or employee of, or other person associated with or acting on behalf of, the Company
has acted at all times in compliance with applicable Export and Import Laws (as defined below) and there are no claims, complaints, charges,
investigations or proceedings pending or expected or, to the knowledge of the Company, threatened between the Company or any of its Subsidiaries
and any Governmental Authority under any Export or Import Laws. The term “
Export and Import Laws
” means the
Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act of 1979, as amended, the Export
Administration Regulations, and all other laws and regulations of the United States government regulating the provision of services to
non-U.S. parties or the export and import of articles or information from and to the United States of America, and all similar laws and
regulations of any foreign government regulating the provision of services to parties not of the foreign country or the export and import
of articles and information from and to the foreign country to parties not of the foreign country.
11
(ff)
Material Agreements
.
There are no contracts or other documents required to be described in the Registration Statement
or the Prospectus or filed as exhibits to the Registration Statement that are not described and filed as required. The statements
made in the Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and
filed, constitute accurate summaries of the terms of such contracts and documents in all material respects. Neither the Company
nor any of its Subsidiaries has knowledge that any other party to any such contract or other document has any intention not to render
full performance in all material respects as contemplated by the terms thereof.
(gg)
Certain Disclosure
.
The statements made in the Prospectus under the captions “Securities We May Offer,”
“Description of Securities We Are Offering,” and the statements made in the Company’s Annual Report on Form 10-K for
the year ended December 31, 2025 under the caption “Item 1—Business—Government Regulation”, insofar as they purport
to constitute summaries of the terms of statutes, rules or regulations, legal or governmental proceedings or of contracts and other documents
described therein, constitute accurate summaries of the terms of such statutes, rules and regulations, legal and governmental proceedings
and contracts and other documents in all material respects.
(hh)
Title to Properties
.
The Company and its Subsidiaries have good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and defects, except such liens, encumbrances and defects as are
described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or such as would not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries.
All assets held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases, with
such exceptions as do not materially interfere with the use made and proposed to be made of such assets by the Company and its Subsidiaries.
(ii)
Tax Law Compliance
.
The Company and its Subsidiaries have filed all federal, state, local and foreign tax returns
required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due, and no tax deficiency has
been determined adversely to the Company or any of its Subsidiaries, nor does the Company have any knowledge of any tax deficiencies that
have been, or could reasonably be expected to be asserted against the Company, in each case that could, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(jj)
Insurance
.
The Company and each of its Subsidiaries carry, or are covered by, insurance from insurers of recognized
financial responsibility in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies engaged in similar businesses in similar industries at a similar
stage of development. All policies of insurance of the Company and each of its Subsidiaries are in full force and effect; the Company
and each of its Subsidiaries are in compliance with the terms of such policies in all material respects; and neither the Company nor any
of its Subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance; there are no claims by the Company or any of its Subsidiaries under
any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
and neither the Company nor any of its Subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that could not reasonably be expected to have a Material Adverse Effect.
12
(kk)
Compliance with Environmental Laws
.
The Company and its Subsidiaries (i) are, and at all times prior hereto were,
in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any Governmental
Authority, including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating
to pollution, the protection of human health or safety, the environment, or natural resources, or to use, handling, storage, manufacturing,
transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental
Laws
”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with all
permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses, and (ii) have not received
notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential liability for
or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in the case of clause (i) or (ii) where such non-compliance, violation, liability, or other obligation would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (x) there are no proceedings that are pending, or known to be contemplated, against the Company or any of its Subsidiaries
under Environmental Laws in which a Governmental Authority is also a party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed, and (y) the Company and its Subsidiaries are not aware of any issues
regarding compliance with Environmental Laws or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic
substances or wastes, pollutants or contaminants that could reasonably be expected to have a Material Adverse Effect.
(ll)
ERISA Compliance
.
(i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“
ERISA
”)) for which the Company or any member of its “Controlled
Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of
the Code) would have any liability (each a “
Plan
”) has been maintained in compliance with its terms and with
the requirements of all applicable statutes, rules and regulations including ERISA and the Code in all material respects; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions
effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no “accumulated
funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred
or is reasonably expected to occur, (C) the fair market value of the assets under each Plan exceeds the present value of all benefits
accrued under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Company nor any member of
its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to
the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including
a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified
under Section 401(a) of the Code is so qualified and, to the Company’s knowledge, nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(mm)
Company Not an “Investment Company.”
Neither the Company nor any of its Subsidiaries is, and, after
giving effect to the offer and sale of the Offered Shares and the application of the proceeds therefrom as described under “Use
of Proceeds” in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be, (i) an “investment
company” or a company “controlled” by an “investment company” within the meaning of the Investment Company
Act of 1940, as amended (the “
Investment Company Act
”), and the rules and regulations of the Commission thereunder,
or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).
13
(nn)
No Price Stabilization or Manipulation; Compliance with Regulation M
.
Neither the Company nor any of its subsidiaries
has taken, directly or indirectly, without giving effect to any activities by the Underwriters, any action designed to or that has constituted
or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares or of any “reference
security” (as defined in Rule 100 of Regulation M under the Exchange Act (“
Regulation M
”)) with respect
to the Shares, whether to facilitate the sale or resale of the Offered Shares or otherwise, and has taken no action which would directly
or indirectly violate Regulation M.
(oo)
Related-Party Transactions
.
No relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, shareholders, customers or suppliers of the Company, on the other hand, that is required to be
described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, in the Company’s most recent Annual Report
on Form 10-K or in the Company’s most recent Definitive Proxy Statement on Schedule 14A which is not so described.
(pp)
Exchange Act Compliance
.
The Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.
(qq)
FINRA Matters
.
All of the information provided to the Underwriters or to counsel for the Underwriters by the
Company, its counsel, its officers and directors and, to the Company’s knowledge, the holders of any securities (debt or equity)
or options to acquire any securities of the Company in connection with the offering of the Offered Shares is true, complete and correct
in all material respects and compliant with FINRA’s rules and any letters, filings or other supplemental information provided to
FINRA pursuant to FINRA Rules is true, complete and correct in all material respects.
(rr)
Parties to Lock-Up Agreements
.
The Company has furnished to the Underwriters a letter agreement in the form attached
hereto as
Exhibit A
(the “
Lock-up Agreement
”) from each of the persons listed on
Exhibit B
.
Such
Exhibit B
lists under an appropriate caption the directors and executive officers of the Company. If any additional persons
shall become directors or executive officers of the Company prior to the end of the Lock-up Period, the Company shall cause each such
person, prior to or contemporaneously with their appointment or election as a director or executive officer of the Company, to execute
and deliver to the Representatives a Lock-up Agreement.
(
ss
)
Statistical and Market-Related Data
.
The statistical and market-related data included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus or the Prospectus is based on or derived from sources that the Company believes
to be reliable in all material respects.
(tt)
Sarbanes-Oxley Act.
There is and has been no failure on the part of the Company, its Subsidiaries and any of
the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act and the
rules and regulations promulgated in connection therewith which are applicable to the Company.
14
(uu)
No Unlawful Contributions or Other Payments
.
Neither the Company nor any of its Subsidiaries nor, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or other person acting on behalf of the Company or any Subsidiary, has (i)
used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii)
made any direct or indirect unlawful payment to foreign or domestic government officials or employees, political parties or campaigns,
political party officials, or candidates for political office from corporate funds, (iii) violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable anti-corruption laws, rules, or regulation of any other
jurisdiction in which the Company or any Subsidiary conducts business, or (iv) made any other unlawful bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment to any person.
(vv)
Money Laundering Laws
.
The operations of the Company and each of its Subsidiaries are and have been conducted
at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions in which the Company and its Subsidiaries conduct
business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any Governmental Authority (collectively, the “
Money Laundering Laws
”) and no action, suit or proceeding
by or before any court or Governmental Authority 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.
(ww)
Sanctions
.
Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or representative of the Company or any of its Subsidiaries is an individual or entity (“
Person
”)
currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State, the United Nations Security
Council, the European Union or His Majesty’s Treasury (collectively, “
Sanctions
”), nor is the Company
located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not, directly or indirectly,
use the proceeds of the sale of the Offered Shares, or lend, contribute or otherwise make available such proceeds to its Subsidiaries,
joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory that, at
the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including
any Person participating in the offering, whether as agent, underwriter, advisor, investor or otherwise) of Sanctions. For the past ten
years, the Company and its Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions
with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any country or
territory that is the subject of Sanctions; the Company and its subsidiaries have instituted, and maintain, policies and procedures designed
to promote and achieve continued compliance with Sanctions.
(xx)
Brokers
.
Neither the Company nor any of its Subsidiaries (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual). Except pursuant to this Agreement, neither the Company nor any of its Subsidiaries is a party
to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against
any of them for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Offered Shares.
Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against the Underwriters for a brokerage commission, finder’s fee or like payment
in connection with the offering and sale of the Offered Shares.
15
(yy)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in the Registration Statement, Time of Sale Prospectus or the Prospectus has been made
or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(zz)
Valid Agreements.
All agreements between the Company and third parties expressly referenced in the Time of Sale
Prospectus and Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms,
except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain
agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(aaa)
Not a Shell Company.
The Company is not a shell company (as defined in Rule 405 under the Securities Act) and
has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has
filed current Form 10 information (as defined in General Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months
previously reflecting its status as an entity that is not a shell company.
(bbb)
No Integration.
The Company has not sold or issued any securities that would be integrated with the offering
of the Offered Shares contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations
thereof by the Commission.
(ccc)
No Outstanding Loans or Other Extensions of Credit
. Subsequent to the respective dates as of which information
is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus (including any document deemed incorporated by
reference therein), there has not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably
expects will result in a Material Adverse Effect, (ii) any transaction which is material to the Company and its Subsidiaries taken as
a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and its Subsidiaries taken as a whole, (iv) any material change in the capital stock
or outstanding long-term indebtedness of the Company or any Subsidiary or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as
otherwise disclosed in the Registration Statement or the Time of Sale Prospectus (including any document deemed incorporated by reference
therein).
(ddd)
Cybersecurity
. Except as may be included or incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, (i)(x) there has been no material security breach or attack or other compromise of or relating
to any of the Company’s and each of its Subsidiaries’ information technology and computer systems, networks, hardware, software,
data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf
of them), equipment or technology (collectively, “
IT Systems and Data
”) and (y) the Company and its Subsidiaries have
not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach,
attack or compromise to their IT Systems and Data, (ii) the Company and its Subsidiaries have complied, and are presently in compliance
with all applicable laws, statutes or any judgment, order, rule or regulation of any Governmental Authority and all internal policies
and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification, except where such noncompliance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and (iii) the Company and its Subsidiaries have implemented backup technology
consistent with industry standards and practice.
16
(eee)
No Reliance
. The Company has not relied upon the Underwriters or legal counsel for the Underwriters for any legal,
tax or accounting advice in connection with the offering and sale of the Offered Shares.
(fff)
Compliance with Employment Laws
. Neither the Company nor any of its Subsidiaries is in violation of or has received
notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees,
nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which
a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(ggg)
Taxes
. On each of the First Closing Date and Option Closing Date, if any, all stock transfer or other similar
taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Offered Shares to be sold
hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have
been fully complied with.
(hhh)
Margin Rules
. Neither the issuance, sale and delivery of the Offered Shares nor the application of the proceeds
thereof by the Company as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus will violate Regulation
T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(iii)
Outbound Investment Security Program
. Neither the Company nor any of its Subsidiaries is a “covered foreign
person”, as that term is defined in 31 C.F.R. § 850.209. Neither the Company nor any of its Subsidiaries currently engages,
or has plans to engage, directly or indirectly, in a “covered activity”, as that term is defined in 31 C.F.R. § 850.208
(“
Covered Activity
”). The Company does not have any joint ventures that engage in or plan to engage in any Covered
Activity. The Company also does not, directly or indirectly, hold a board seat on, have a voting or equity interest in, or have any contractual
power to direct or cause the direction of the management or policies of any person or persons that engages or plans to engage in
any Covered Activity.
Any certificate signed by any officer of the Company
or any of its subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering, or the
purchase and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
The
Company has a reasonable basis for making each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters
and, for purposes of the opinions to be delivered pursuant to
‎Section 6
hereof, counsel
to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.
Section
2.
Purchase, Sale
and Delivery of the Offered Shares
.
(a)
The Firm Shares
.
Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters
an aggregate of 5,769,231 Firm Shares. On the basis of the representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the respective
number of Firm Shares set forth opposite their names on
Schedule
A
. The purchase price per Firm Share to be paid by the
several Underwriters to the Company shall be $24.44 per share.
17
(b)
The First Closing Date
.
Delivery of the Firm Shares to be purchased by the Underwriters and payment therefor
shall be made at the offices of Latham & Watkins LLP (or such other place as may be agreed to by the Company and the Representatives)
at 9:00 a.m. New York City time, on September 14, 2026
,
or such other time and date not later than 1:30 p.m. New York City
time, on September 28, 2026 as the Representatives shall designate by notice to the Company (the time and date of such closing are called
the “
First Closing Date
”). The Company hereby acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or
the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions
of
‎Section 11
.
(c)
The Optional Shares; Option Closing Date
.
In addition, on the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of 865,384 Optional Shares from the Company at the purchase price
per share to be paid by the Underwriters for the Firm Shares, less an amount per share equal to any dividend or distribution declared
by the Company and payable on the Firm Shares but not payable on Optional Shares. The option granted hereunder may be exercised at any
time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time
within 30 days from the date of this Agreement (the “
Option Period
”). Such notice shall set forth (i) the
aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which
the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and
in the event that such time and date are simultaneous with the First Closing Date, the term “
First Closing Date
” shall
refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent
to the First Closing Date, is called an “
Option Closing Date
,” and shall be determined by the Representatives and shall
not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Shares are to
be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments
to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Shares
to be purchased as the number of Firm Shares set forth on
Schedule A
opposite the name of such Underwriter bears to the total number
of Firm Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation
to the Company.
(d)
Public Offering of the Offered Shares
.
The Representatives hereby advise the Company that the Underwriters intend
to offer for sale to the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
their respective portions of the Offered Shares as soon after this Agreement has been executed as the Representatives, in their sole judgment,
have determined is advisable and practicable.
(e)
Payment for the Offered Shares
.
(i) Payment for the Offered Shares shall be made at the First Closing Date (and,
if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii)
It is understood that the Representatives have been authorized, for their own account and the accounts of the several Underwriters,
to accept delivery of and receipt for, and make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters
have agreed to purchase. Jefferies, individually and not as the Representative of the Underwriters, may (but shall not be obligated to)
make payment for any Offered Shares to be purchased by any Underwriter whose funds shall not have been received by the Representatives
by the First Closing Date or the applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under this Agreement.
18
(f)
Delivery of the Offered Shares
.
The Company shall deliver, or cause to be delivered, through the facilities of
The Depository Trust Company (“
DTC
”), to the Representatives for the accounts of the several Underwriters the Firm
Shares at the First Closing Date, in accordance with the Representatives’ instructions, against release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company shall also deliver, or cause to be delivered to the Representatives
for the accounts of the several Underwriters, the Optional Shares the Underwriters have agreed to purchase from them at the First Closing
Date or the applicable Option Closing Date, as the case may be, against the release of a wire transfer of immediately available funds
for the amount of the purchase price therefor. If Jefferies so elects, delivery of the Offered Shares may be made by credit to the accounts
designated by Jefferies through DTC’s full fast transfer or DWAC programs. If Jefferies so elects, the Offered Shares shall be registered
in such names and denominations as the Representatives shall have requested at least two full business days prior to the First Closing
Date (or the applicable Option Closing Date, as the case may be) and shall be made available for inspection on the business day preceding
the First Closing Date (or the applicable Option Closing Date, as the case may be) at a location in New York City as the Representatives
may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to
the obligations of the Underwriters.
Section
3.
Additional Covenants.
The Company further covenants and agrees with each
Underwriter as follows:
(a)
Delivery of Registration Statement, Time of Sale Prospectus and Prospectus.
The Company shall furnish to you
in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement
and during the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares, as many
copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you
may reasonably request.
(b)
Representatives’ Review of Proposed Amendments and Supplements.
During the period when a prospectus relating
to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under
the Securities Act or any similar rule), the Company (i) will furnish to the Representatives for review, a reasonable period of time prior
to the proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or
supplement and (ii) will not amend or supplement the Registration Statement (including any amendment or supplement through incorporation
of any report filed under the Exchange Act) without the Representatives’ prior written consent, which shall not be unreasonably
withheld, conditioned or delayed. Prior to amending or supplementing the Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus
(including any amendment or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to
the Representatives for review, a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement,
a copy of each such proposed amendment or supplement. The Company shall not file or use any such proposed amendment or supplement without
the Representatives’ prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Company shall
file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
19
(c)
Free Writing Prospectuses.
The Company shall furnish to the Representatives for review, a reasonable amount of
time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement
thereto prepared by or on behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed
free writing prospectus or any amendment or supplement thereto without the Representatives’ prior written consent, which shall not
be unreasonably withheld, conditioned or delayed. The Company shall furnish to each Underwriter, without charge, as many copies of any
free writing prospectus prepared by or on behalf of, used by or referred to by the Company as such Underwriter may reasonably request.
If at any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule
172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares (but in any event if at any time through
and including the First Closing Date) there occurred or occurs an event or development as a result of which any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained in the
Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading, the
Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict or so that the statements
in such free writing prospectus as so amended or supplemented will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading,
as the case may be;
provided, however
, that prior to amending or supplementing any such free writing prospectus, the Company shall
furnish to the Representatives for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of
such proposed amended or supplemented free writing prospectus, and the Company shall not file, use or refer to any such amended or supplemented
free writing prospectus without the Representatives’ prior written consent, which shall not be unreasonably withheld, conditioned
or delayed.
(d)
Filing of Underwriter Free Writing Prospectuses.
The Company shall not take any action that would result in an
Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e)
Amendments and Supplements to Time of Sale Prospectus.
If the Time of Sale Prospectus is being used to solicit
offers to buy the Offered Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus
does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement, or if,
in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable
law, the Company shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or supplemented will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered to a
prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the information contained in the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
20
(f)
Certain Notifications and Required Actions
.
After the date of this Agreement and until one year from the date
of this Agreement, the Company shall promptly advise the Representatives in writing of (which may be by electronic mail): (i) the receipt
of any comments of, or requests for additional or supplemental information from, the Commission relating to the Registration Statement;
(ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement
to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the time and date that
any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment or supplement to any
preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending the use of any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or, if the Company gains knowledge of such proceeding,
of any proceedings to remove, suspend or terminate from listing or quotation the Shares from any securities exchange upon which they are
listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes.
If the Commission shall enter any such stop order at any time, the Company will use its reasonable best efforts to obtain the lifting
of such order as soon as practicable. Additionally, the Company agrees that it shall comply with all applicable provisions of Rule 424(b),
Rule 433 and Rule 430B under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under
Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(g)
Amendments and Supplements to the Prospectus and Other Securities Act Matters.
If any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule)
to a purchaser, not misleading, or if in the opinion of the Representatives or counsel for the Underwriters it is otherwise necessary
to amend or supplement the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and Section 3(c) hereof)
to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, amendments
or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule)
to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the Representatives’
consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under
Section 3(b) or Section 3(c).
(h)
Blue Sky Compliance
.
The Company shall cooperate with the Representatives and counsel for the Underwriters to
qualify or register the Offered Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky
laws or Canadian provincial securities laws (or other foreign laws) of those jurisdictions as may be reasonably designated by the Representatives,
shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the
distribution of the Offered Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Offered Shares for offering, sale or trading in any jurisdiction or, if the Company gains knowledge
of such proceeding, any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof as promptly
as possible.
21
(i)
Use of Proceeds
.
The Company shall apply the net proceeds from the sale of the Offered Shares sold by it in all
material respects in the manner described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(j)
Transfer Agent
.
The Company shall engage and maintain, at its expense, a registrar and transfer agent for the
Shares.
(k)
Earnings Statement
.
The Company will make generally available to its security holders and to the Representatives
as soon as practicable an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the
first fiscal quarter of the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder; provided, however, that the requirements of this
‎Section
3(k)
shall be satisfied to the extent that such information is available on EDGAR.
(l)
Continued Compliance with Securities Laws
.
The Company will comply with the Securities Act and the Exchange Act
so as to permit the completion of the distribution of the Offered Shares as contemplated by this Agreement
,
the Registration Statement,
the Time of Sale Prospectus and the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period
when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and Nasdaq all reports and documents
required to be filed under the Exchange Act.
(m)
Listing
.
The Company will use its reasonable best efforts to list, subject to notice of issuance, the Offered
Shares on Nasdaq.
(n)
Company to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet
.
If requested by the
Representatives, the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date
of this Agreement, to the Representatives an “
electronic Prospectus
” to be used by the Underwriters in connection with
the offering and sale of the Offered Shares. As used herein, the term “
electronic Prospectus
” means a form of Prospectus,
and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representatives, that may be transmitted electronically by the Representatives and the other Underwriters to offerees
and purchasers of the Offered Shares; (ii) it shall disclose the same information as the paper Prospectus, except to the extent that
graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the
electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it
shall be in or convertible into a paper format or an electronic format, satisfactory to Jefferies, that will allow investors to store
and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription
to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed
pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking
that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
22
(o)
Agreement Not to Offer or Sell Additional Shares
.
During the period commencing on and including the date hereof
and continuing through and including the 60
th
day following the date of the Prospectus (such period, as extended as described
below, being referred to herein as the “
Lock-up Period
”), the Company will not, without the prior written consent of
the Representatives (which consent may be withheld in their sole discretion), directly or indirectly: (i) sell, offer to sell, contract
to sell or lend any Shares or Related Securities (as defined below); (ii) effect any short sale, or establish or increase any “put
equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position”
(as defined in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities; (iii) pledge, hypothecate or grant any
security interest in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares or Related Securities;
(v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership
of any Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise;
(vi) announce the offering of any Shares or Related Securities; (vii) submit or file any registration statement under the Securities Act
in respect of any Shares or Related Securities (other than (A) as contemplated by this Agreement with respect to the Offered Shares and
(B) with respect to a registration statement on Form S-8); (viii) effect a reverse stock split, recapitalization, share consolidation,
reclassification or similar transaction affecting the outstanding Shares; or (ix) publicly announce the intention to do any of the foregoing;
provided, however
, that the Company may (A) effect the transactions contemplated hereby; (B) issue Shares or options to purchase
Shares, or issue Shares upon exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, but only if the holders of such Shares or options enter
into a Lock-up Agreement with the Representatives substantially in the form of Exhibit A hereto for the remainder of the Lock-up Period;
(C) effect sales pursuant to the Amended and Restated Sales Agreement, dated August 13, 2026, by and between the Company and TD Cowen
or any replacement “at the market offering” program;
provided
that in the case of clause (C), no such sales may be
made prior to the expiration of the Option Period unless the option granted to the several Underwriters in Section 2 has been exercised
in full and all Optional Shares have been issued; (D) issue Shares in connection with the acquisition or license by the Company of the
securities, business, property, technology or other assets of another person or business entity or pursuant to any employee benefit plan
assumed by the Company in connection with any such merger or acquisition; or (E) issue Shares or Related Securities in connection with
any merger, joint venture, strategic alliances, commercial relationship or other strategic or collaborative transactions;
provided
that, in the case of immediately preceding clauses (D) and (E), (x) the aggregate number of Shares issued or underlying such Related Securities
issued in connection with all such acquisitions and other transactions does not exceed 5% of the aggregate number of Shares outstanding,
on a fully-diluted and exercised basis, immediately following the consummation of the offering of the Offered Shares pursuant to this
Agreement and (y) the recipients of the Shares or Related Securities agree in writing to be bound by the same terms described in the Lock-up
Agreement. For purposes of the foregoing, “
Related Securities
” shall mean any options or warrants or other rights to
acquire Shares or any securities exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights
ultimately exchangeable or exercisable for, or convertible into, Shares.
(p)
Future Reports to the Representatives.
During the period of five years hereafter, the Company will furnish to
the Representatives, c/o Jefferies, at 520 Madison Avenue, New York, New York 10022, Attention: Global Head of Syndicate: (i) as soon
as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company
as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the
opinion thereon of the Company’s independent public or certified public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
report filed by the Company with the Commission, FINRA or any securities exchange; and (iii) as soon as available, copies of any report
or communication of the Company furnished or made available generally to holders of its capital stock;
provided, however,
that
the requirements of this Section 3(p) shall be satisfied to the extent that such reports, statement, communications, financial statements
or other documents are available on EDGAR.
23
(q)
Investment Limitation
.
The Company shall not invest or otherwise use the proceeds received by the Company from
its sale of the Offered Shares in such a manner as would require the Company or any of its subsidiaries to register as an “investment
company” under the Investment Company Act.
(r)
No Stabilization or Manipulation; Compliance with Regulation M
.
The Company will not take, and will ensure that
no affiliate of the Company will take, directly or indirectly, without giving effect to activities by the Underwriters, any action designed
to or that might cause or result in stabilization or manipulation of the price of the Shares or any reference security with respect to
the Shares, whether to facilitate the sale or resale of the Offered Shares or otherwise, and the Company will, and shall cause each of
its affiliates to, comply with all applicable provisions of Regulation M.
(s)
Enforce Lock-Up Agreements
.
During the Lock-up Period, the Company will enforce all agreements between the Company
and any of its securityholders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Shares or Related
Securities or any of the other actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition, the Company
will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by such “lock-up”
agreements for the duration of the periods contemplated in such agreements, including, without limitation, “lock-up” agreements
entered into by the Company’s officers and directors pursuant to
‎Section 6(i)
hereof.
(t)
Company to Provide Interim Financial Statements
.
Prior to the First Closing Date and each applicable Option Closing
Date, the Company will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any
unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements
appearing in the Registration Statement and the Prospectus; provided, however, that the requirements of this
‎Section
3(t)
shall be deemed satisfied to the extent such financial statements are available on EDGAR.
Section
4.
Payment of Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and
delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar and transfer
agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Offered
Shares to the Underwriters, (iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants
and other advisors, (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution
of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Time of
Sale Prospectus, the Prospectus, each free writing prospectus prepared by or on behalf of, used by, or referred to by the Company, and
each preliminary prospectus, and all amendments and supplements thereto, and this Agreement, (vi) all filing fees, attorneys’
fees and expenses incurred by the Company or documented attorney’s fees and out-of-pocket expenses incurred by the Underwriters
in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the
Offered Shares for offer and sale under the state securities or blue sky laws or the provincial securities laws of Canada, and, if requested
by the Representatives, preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”, and
any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vii) the costs, fees and
expenses incurred by the Underwriters in connection with determining their compliance with the rules and regulations of FINRA related
to the Underwriters’ participation in the offering and distribution of the Offered Shares, including any related filing fees and
the legal fees of, and disbursements by, counsel to the Underwriters, provided that the fees and expenses under the subsection (vi) above
and this subsection (vii) shall not exceed $40,000 in the aggregate, (viii) the costs and expenses of the Company relating to investor
presentations on any “road show”, including, without limitation, expenses associated with the preparation or dissemination
of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives,
employees and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show,
provided, however, that the Underwriters and the Company agree that the cost of any such chartered aircraft shall be borne 50% by the
Company and 50% by the Underwriters, (ix) the fees and expenses associated with listing the Offered Shares on Nasdaq, and (x) all
other fees, costs and expenses of the nature referred to in Item 14 of Part II of the Registration Statement. Except as provided
in this
‎
Section 4 or in
‎
Section 7,
‎
Section
9 or
‎
Section 10 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
24
Section
5.
Covenant of the
Underwriters.
Each Underwriter severally and not jointly covenants with the Company not to take any action that would result in the
Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under Rule
433(d).
Section
6.
Conditions of the
Obligations of the Underwriters.
The respective obligations of the several Underwriters hereunder to purchase and pay for the Offered
Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject
to the accuracy of the representations and warranties on the part of the Company set forth in
‎
Section
1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each
Option Closing Date as though then made, to the timely performance by the Company of its covenants and other obligations hereunder, and
to each of the following additional conditions:
(a)
Comfort Letter
.
On the date hereof, the Representatives shall have received from Baker Tilly, independent registered
public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to
the Representatives, containing statements and information of the type ordinarily included in accountant’s “comfort letters”
to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited
and unaudited financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus,
and each free writing prospectus, if any.
(b)
Compliance with Registration Requirements; No Stop Order; No Objection from FINRA.
For the period from and after
the date of this Agreement and through and including the First Closing Date and, with respect to any Optional Shares purchased after the
First Closing Date, each Option Closing Date:
(i)
The Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration
Statement pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities
Act.
(ii)
No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement
shall be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii)
If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting
terms and arrangements.
25
(c)
No Material Adverse Change or Ratings Agency Change
.
For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each
Option Closing Date:
(i)
in the judgment of the Representatives there shall not have occurred any Material Adverse Change; and
(ii)
there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used
in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
(d)
Opinion of Counsel for the Company
.
On each of the First Closing Date and each Option Closing Date the Representatives
shall have received the opinion and negative assurance letter of Gibson, Dunn & Crutcher LLP, counsel for the Company, dated as of
such date, in form and substance reasonably satisfactory to the Representatives.
(e)
Opinion of Intellectual Property Counsel for the Company.
On each of the First Closing Date and each Option Closing
Date, the Representatives shall have received the opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel for
the Company with respect to certain intellectual property matters, dated as of such date, in form and substance reasonably satisfactory
to the Representatives.
(f)
Opinion of Counsel for the Underwriters
.
On each of the First Closing Date and each Option Closing Date the Representatives
shall have received the opinion and negative assurance letter of Latham & Watkins LLP, counsel for the Underwriters in connection
with the offer and sale of the Offered Shares, in form and substance satisfactory to the Underwriters, dated as of such date.
(g)
Officers’ Certificate
.
On each of the First Closing Date and each Option Closing Date, the Representatives
shall have received a certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer
of the Company, dated as of such date, to the effect set forth in
‎Section 6(b)(ii)
and further
to the effect that:
(i)
for the period from and including the date of this Agreement through and including such date, there has not occurred any Material
Adverse Change;
(ii)
the representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with
the same force and effect as though expressly made on and as of such date; and
(iii)
the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to such date.
(h)
Bring-down Comfort Letter
.
On each of the First Closing Date and each Option Closing Date the Representatives
shall have received from Baker Tilly, independent registered public accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representatives, which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant
to
‎Section 6(a)
, except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the case
may be; and (ii) cover certain financial information contained in the Prospectus.
26
(i)
Lock-Up Agreements.
On or prior to the date hereof, the Company shall have furnished to the Representatives an
agreement in the form of
Exhibit A
hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall be
in full force and effect on each of the First Closing Date and each Option Closing Date.
(j)
CFO Certificate
. On the date of this Agreement and on the First Closing Date or the applicable Option Closing
Date, as the case may be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery
thereof and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Time
of Sale Prospectus and the Prospectus, providing “management comfort” with respect to such information, in form and substance
reasonably satisfactory to the Representatives.
(k)
Rule 462(b) Registration Statement
. In the event that a Rule 462(b) Registration Statement is filed
in connection with the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been filed with
the Commission on the date of this Agreement and shall have become effective automatically upon such filing.
(l)
Additional Documents
. On or before each of the First Closing Date and each Option Closing Date, the Representatives
and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes
of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the
other transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
If
any condition specified in this
‎Section 6
is not satisfied when and as required to be
satisfied (unless waived in writing by the Representatives), this Agreement may be terminated by the Representatives by notice from the
Representatives to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any time
on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other
party, except that
‎Section 4
,
‎Section 7
,
‎Section
9
and
‎Section 10
shall at all times be effective and shall survive such termination.
Section
7.
Reimbursement of
Underwriters’ Expenses
. If this Agreement is terminated by the Representatives pursuant to
‎
Section
6,
‎
Section 11 or
‎
Section 12, or if the sale to the
Underwriters of the Offered Shares on the First Closing Date is not consummated because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives
and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand
for all documented out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection
with the proposed purchase and the offering and sale of the Offered Shares, including, but not limited to, documented fees and disbursements
of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. For the avoidance of doubt, it is understood
that the Company will not pay or reimburse any costs, fees or expenses incurred by any Underwriter that defaults on its obligations to
purchase the Offered Shares.
Section
8.
Effectiveness of
this Agreement
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
27
Section
9.
Indemnification
.
(a)
Indemnification of the Underwriters
.
The Company agrees to indemnify and hold harmless each Underwriter, its
affiliates, directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the
Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such
affiliate, director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other
federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Offered Shares have been offered
or sold or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
or any amendment thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has used, referred to or filed,
or is required to file, pursuant to Rule 433(d) of the Securities Act, any Marketing Material or the Prospectus (or any amendment or supplement
to the foregoing), or the omission or alleged omission to state therein a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading; or (iii) any act or failure to act or any alleged act
or failure to act by any Underwriter in connection with, or relating in any manner to, the Offered Shares or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (i) or (ii) above; and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent
and controlling person for any and all reasonable expenses (including the fees and disbursements of counsel) as such expenses are incurred
by such Underwriter or such affiliate, director, officer, employee, agent or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided, however
, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company by the Representatives in writing expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free writing prospectus, any Marketing Material or the Prospectus
(or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the information described
in
‎Section 9(b)
below. The indemnity agreement set forth in this
‎Section
9(a)
shall be in addition to any liabilities that the Company may otherwise have.
(b)
Indemnification of the Company, its Directors and Officers
. Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company, or any such director, officer or controlling person may become subject, under
the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus,
any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433 of the Securities
Act or the Prospectus (or any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary
in order to make the statements, in the light of the circumstances under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus or the Prospectus (or any such amendment
or supplement), in reliance upon and in conformity with information relating to such Underwriter furnished to the Company by the Representatives
in writing expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any and all
expenses (including the fees and disbursements of counsel) as such expenses are incurred by the Company, or any such director, officer
or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The Company hereby acknowledges that the only information that the Representatives have furnished to the Company expressly
for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement to
the foregoing) are the statements set forth in
t
he first sentence of the third paragraph under the caption “Underwriting”,
the first sentence of the first paragraph under the caption “Underwriting—Commission and Expenses”, and the first sentence
of the first paragraph under the caption “Underwriting—Stabilization”, in the Preliminary Prospectus Supplement and
the Final Prospectus Supplement. The indemnity agreement set forth in this
‎Section 9(b)
shall
be in addition to any liabilities that each Underwriter may otherwise have.
28
(c)
Notifications and Other Indemnification Procedures
.
Promptly after receipt by an indemnified party under this
‎Section 9
of notice of the commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this
‎Section 9
, notify
the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party to the extent the indemnifying party is not materially
prejudiced as a proximate result of such failure and shall not in any event relieve the indemnifying party from any liability that it
may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate
in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party;
provided, however
, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded based on advice of counsel
that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such
action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such indemnifying party’s election to so assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under
this
‎Section 9
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the fees and expenses
of more than one separate counsel (together with local counsel), representing the indemnified parties who are parties to such action),
which counsel (together with any local counsel) for the indemnified parties shall be selected by the Representatives (in the case of counsel
for the indemnified parties referred to in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred
to in
‎Section 9
(b) above)) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense
of the indemnifying party, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party and
shall be paid as they are incurred.
29
(d)
Settlements
.
The indemnifying party under this
‎Section 9
shall not
be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability
or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by
‎Section
9(c)
hereof, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise
or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such
indemnified party.
Section
10.
Contribution
. If the indemnification
provided for in
‎
Section 9 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Offered Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Offered Shares pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total proceeds from the offering of the Offered Shares pursuant
to this Agreement (before deducting expenses) received by the Company, and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price
of the Offered Shares as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other
hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters,
on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in
‎Section 9(c)
, any legal or other
fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set
forth in
‎Section 9(c)
with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this
‎Section 10
;
provided, however,
that no
additional notice shall be required with respect to any action for which notice has been given under
‎Section
9(c)
for purposes of indemnification.
30
The
Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this
‎Section
10
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to in this
‎Section
10
.
Notwithstanding
the provisions of this
‎Section 10
, no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and commissions received by such Underwriter in connection with the Offered Shares underwritten
by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this
‎Section 10
are several, and not joint, in proportion
to their respective underwriting commitments as set forth opposite their respective names on
Schedule A
. For purposes of this
‎Section
10
, each affiliate, director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section
11.
Default of One or More of the Several
Underwriters
.
If, on the First Closing Date or any Option Closing Date any one or more of the several Underwriters shall fail
or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on such date, and the aggregate number of Offered
Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate
number of the Offered Shares to be purchased on such date, the Representatives may make arrangements satisfactory to the Company for the
purchase of such Offered Shares by other persons, including any of the Underwriters, but if no such arrangements are made by such date,
the other Underwriters shall be obligated, severally and not jointly, in the proportions that the number of Firm Shares set forth opposite
their respective names on
Schedule
A
bears to the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If, on the First Closing Date or any Option Closing Date any one or more of the Underwriters shall fail or refuse to purchase
Offered Shares and the aggregate number of Offered Shares with respect to which such default occurs exceeds 10% of the aggregate number
of Offered Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase
of such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate without liability of any party
(other than the breaching Underwriter or Underwriters) to any other party except that the provisions of
‎
Section
4,
‎
Section 7,
‎
Section 9 and
‎
Section
10 shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall
have the right to postpone the First Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Registration Statement and the Prospectus or any other documents or
arrangements may be effected.
31
As
used in this Agreement, the term “
Underwriter
” shall be deemed to include any person substituted for a defaulting Underwriter
under this
‎Section 11
. Any action taken under this
‎Section
11
shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Section
12.
Termination of this Agreement
.
Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement may be terminated by the Representatives
by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s securities shall have been
suspended or limited by the Commission or by Nasdaq, or trading in securities generally on either the NASDAQ or the NYSE shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges; (ii) a general
banking moratorium shall have been declared by any of federal, New York or Connecticut authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable
to market the Offered Shares in the manner and on the terms described in the Time of Sale Prospectus or the Prospectus or to enforce contracts
for the sale of securities; (iv) in the reasonable judgment of the Representatives there shall have occurred any Material Adverse
Change; or (v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character
as in the judgment of the Representatives may interfere materially with the conduct of the business and operations of the Company regardless
of whether or not such loss shall have been insured. Any termination pursuant to this
‎
Section
12 shall be without liability on the part of (a) the Company to any Underwriter, except that the Company shall be obligated to reimburse
the expenses of the Representatives and the Underwriters pursuant to
‎
Section 4 or
‎
Section
7 hereof or (b) any Underwriter to the Company;
provided, however,
that the provisions of
‎
Section
9 and
‎
Section 10 shall at all times be effective and shall survive such termination.
Section
13.
No Advisory or Fiduciary Relationship.
The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including the
determination of the public offering price of the Offered Shares and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and does not constitute a recommendation,
investment advice, or solicitation of any action by the Underwriters, (b) in connection with the offering contemplated hereby and the
process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of
the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to
the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company,
(e) the Underwriters have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate, and (f)
none of the activities of the Underwriters in connection with the transaction contemplated herein constitutes a recommendation, investment
advice, or solicitation of any action by the Underwriters with respect to any entity or natural person.
32
Section
14.
Representations and Indemnities to Survive
Delivery
.
The respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers
and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of its or their partners, officers or directors or any controlling
person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Offered
Shares sold hereunder and any termination of this Agreement.
Section
15.
Notices
. All communications hereunder
shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attention: General Counsel
TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017
Attention: Head of Equity Capital Markets, with a copy to CIBLegal@tdsecurities.com
Guggenheim Securities, LLC
330 Madison Avenue, 8th Floor
New York, New York 10017
Attention: Equity Syndicate Department
with a copy to:
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, California 92130
Attention: Michael E. Sullivan
Email:
michael.sullivan@lw.com
If to the Company:
Yarrow Bioscience, Inc.
470 James Street, Suite 007
New Haven, Connecticut 06513
Attention: Rebecca Frey
with a copy to:
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San Francisco, California 94111
Attention: Ryan A. Murr
Any party hereto
may change the address for receipt of communications by giving written notice to the others.
Section
16.
Successors
.
This Agreement
will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to
‎
Section
11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons referred to in
‎
Section
9 and
‎
Section 10, and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term “
successors
” shall not include any purchaser of the Offered Shares as such
from any of the Underwriters merely by reason of such purchase.
33
Section
17.
Partial Unenforceability
. The invalidity
or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other
section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid
or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section
18.
Recognition of the U.S. Special Resolution
Regimes.
(a)
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter
are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime
if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “
BHC Act Affiliate
”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(B) “
Covered Entity
” means any of the following: (i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b); (C) “
Default Right
” has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “
U.S. Special Resolution Regime
”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section
19.
Governing Law Provisions
.
This
Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made
and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the
City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively,
the “
Specified Courts
”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted
in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
Section
20.
Waiver of Trial by Jury. The Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
34
Section
21.
General Provisions.
This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. In
the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or “.pdf” signature page were an original thereof. Counterparts may be delivered
via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement may not
be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless
waived in writing by each party whom the condition is meant to benefit; provided that the Representatives acting alone have the authority
to waive the conditions set forth in Section 6. The section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
Each
of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the indemnification provisions of
‎Section
9
and the contribution provisions of
‎Section 10
, and is fully informed regarding said
provisions. Each of the parties hereto further acknowledges that the provisions of
‎Section 9
and
‎Section 10
hereof fairly allocate the risks in light of the ability of the parties
to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments
and supplements to the foregoing), as contemplated by the Securities Act and the Exchange Act.
35
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
YARROW BIOSCIENCE, INC.
By:
/s/ Tyler Zeronda
Name: Tyler Zeronda
Title: Chief Financial Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted by the Representatives in New York, New York as of the date first above written.
JEFFERIES
LLC
TD SECURITIES (USA) LLC
GUGGENHEIM SECURITIES, LLC
Acting individually and as Representatives
of the several Underwriters named in
the
attached
Schedule A
.
JEFFERIES LLC
By:
/s/ Jack Fabbri
Name: Jack Fabbri
Title: Managing Director
TD SECURITIES (USA) LLC
By:
/s/ Mariel Healy
Name: Mariel Healy
Title: Managing Director
GUGGENHEIM SECURITIES, LLC
By:
/s/ Shiv Taylor, MD
Name: Shiv Taylor, MD
Title: Senior Managing Director
36
Schedule A
Underwriters
Number of
Firm Shares
to be Purchased
Jefferies LLC
2,163,462
TD Securities (USA) LLC
1,730,770
Guggenheim Securities, LLC
1,153,846
LifeSci Capital LLC
721,153
Total
5,769,231
Schedule B
Free Writing Prospectuses Included in the
Time of Sale Prospectus
None.
Exhibit A
Form of Lock-up Agreement
September __, 2026
Jefferies
LLC
TD Securities (USA) LLC
Guggenheim Securities, LLC
As Representatives of the Several Underwriters
c/o
Jefferies
LLC
520 Madison Avenue
New York, New York 10022
TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017
and
Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
RE:
Yarrow Bioscience, Inc. (the “
Company
”)
Ladies & Gentlemen:
The
undersigned is an owner of shares of common stock, par value $0.0001 per share, of the Company (“
Shares
”) or of securities
convertible into or exchangeable or exercisable for Shares. The Company proposes to conduct a public offering of Shares (the “
Offering
”)
for which Jefferies
LLC (“
Jefferies
”), TD Securities (USA) LLC (“
TD Cowen
”) and Guggenheim
Securities, LLC (together with Jefferies and TD Cowen, the “
Representatives
”) will act as the representatives of the
underwriters. The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges
that the underwriters are relying on the representations and agreements of the undersigned contained in this letter agreement in conducting
the Offering and, at a subsequent date, in entering into an underwriting agreement (the “
Underwriting Agreement
”) and
other underwriting arrangements with the Company with respect to the Offering.
Annex A sets forth definitions for capitalized terms used in this letter
agreement that are not defined in the body of this letter agreement. Those definitions are a part of this letter agreement.
A-
1
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period,
the undersigned will not (and, if the undersigned is a natural person, will cause any Family Member not to), subject to the exceptions
set forth in this letter agreement, without the prior written consent of Jefferies and TD Cowen, which may withhold their consent in their
sole discretion:
·
Sell or Offer to Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially (as defined in
Rule 13d-3 under the Exchange Act) by the undersigned or such Family Member,
·
enter into any Swap,
·
make any demand for, or exercise any right with respect to, the registration under the Securities Act of the offer and sale of any
Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement
thereto) with respect to any such registration, except as otherwise permitted by this letter agreement, or
·
publicly announce any intention to do any of the foregoing.
The foregoing will not apply to the registration of the offer and sale
of the Shares and/or Related Securities, and the sale of the Shares and/or Related Securities to the underwriters, in each case as contemplated
by the Underwriting Agreement. In addition, the foregoing restrictions shall not apply to (a) the transfer of Shares or Related Securities
by bona fide gift, or by will or intestate succession to a Family Member or to a trust whose beneficiaries consist exclusively of one
or more of the undersigned and/or a Family Member, (b) the transfer of Shares or Related Securities pursuant to a court order in respect
of, or by operation of law as a result of, a divorce, (c) if the undersigned is a non-individual, the transfer of Shares or Related Securities
to any affiliate (as such term is defined in Rule 405 under the Securities Act), limited partners, general partners, limited liability
company members, trust beneficiaries or stockholders of the undersigned, if, in any such case, such transfer is not for value or (d) transactions
relating to Shares acquired in the Offering or in open market transactions after the completion of the Offering;
provided, however
,
that:
·
in the cases described in (a), (b) and (c) above, each transferee executes and delivers to the Representatives an agreement in form
and substance satisfactory to the Representatives stating that such transferee is receiving and holding such Shares and/or Related Securities
subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage
in any Swap or engage in any other activities restricted under this letter agreement except in accordance with this letter agreement (as
if such transferee had been an original signatory hereto);
·
in the case described in (b) above, prior to the expiration of the Lock-up Period, no public disclosure or filing under the Exchange
Act by any party to the transfer (donor, donee, transferor or transferee) shall be required, or made voluntarily, reporting a reduction
in beneficial ownership of Shares in connection with such transfer; and
·
in the cases described in (a), (c) and (d) above, prior to the expiration of the Lock-up Period, no public disclosure or filing under
the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) shall be made voluntarily reporting a reduction
in beneficial ownership of Shares in connection with such transfer, and any public disclosure or filing under the Exchange Act by any
party to the transfer (donor, donee, transferor or transferee) required to be made reporting a reduction in beneficial ownership of Shares
in connection with such transfer shall include a statement describing the circumstances of such transfer and, in the cases described in
(a) and (c) above, that the transferee has agreed to be bound by the terms of this letter agreement.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar against the transfer of Shares or Related Securities held by the undersigned
and the undersigned's Family Members, if any, except in compliance with the foregoing restrictions.
A-
2
Furthermore,
notwithstanding the restrictions imposed by this letter agreement, the undersigned may (i) transfer Shares to the Company upon the exercise
of options or warrants or the vesting of restricted stock units during the Lock-up Period to cover tax withholding obligations in connection
with such exercise or vesting or for the primary purpose of paying the exercise price of options or warrants to acquire Shares, in each
case pursuant to a stock option, stock bonus or other stock plan or arrangement or warrants existing as of the date hereof or described
in the Prospectus (as defined in the Underwriting Agreement) and any Shares acquired upon such exercise or vesting shall remain subject
to this letter agreement; provided that if the undersigned is required to file a report under the Exchange Act related thereto, such report
shall include a statement to the effect that the filing relates to the “net” or “cashless” exercise of options
to purchase shares of common stock for the purpose of exercising such options including, if applicable, the payment of taxes due as a
result of the exercise of options or vesting of restricted stock units, (ii) establish or amend a trading plan pursuant to Rule 10b5-1
under the Exchange Act (a “
10b5-1 Plan
”), provided that no sales or other dispositions of Shares or Related Securities
may occur under such plan during the Lock-up Period and no public announcement or filing under the Exchange Act shall be voluntarily made
by or on behalf of the undersigned or the Company regarding the establishment of such 10b5-1 Plan during the Lock-up Period, and any public
announcement or filing under the Exchange Act required of the undersigned or the Company regarding the establishment of such 10b5-1 Plan
during the Lock-up Period shall include a statement to the effect that no transfer of Shares may be made under such 10b5-1 Plan during
the Lock-up Period, or (iii) transfer the undersigned’s Shares or Related Securities pursuant to a bona fide third-party offer for
all or substantially all of the
outstanding voting stock of the Company, whether pursuant to a merger, tender offer or otherwise,
to a third party or group of third parties, including by entering into any voting, support or tender agreement with respect thereto, provided
that in the event that such merger, tender offer or other transaction is not consummated, such Shares or Related Securities held by the
undersigned shall remain subject to the restrictions on transfer set forth herein. For the avoidance of doubt, nothing in this letter
agreement shall prohibit the undersigned from exercising options or warrants to purchase Shares, or converting, exchanging or settling
any Related Securities, in each case outstanding as of the date hereof or described in the Prospectus, provided that any Shares issued
upon such exercise, conversion, exchange or settlement shall remain subject to this letter agreement. In addition, the undersigned may
transfer Shares or Related Securities to the Company in connection with the repurchase or forfeiture of such Shares or Related Securities
pursuant to any contractual arrangement in effect on the date hereof that provides for such repurchase or forfeiture upon the termination
of the undersigned’s employment or other service relationship with the Company.
In the event that a release or waiver of the foregoing restrictions
is granted by the Representatives with respect to any Shares or Related Securities, to any officer, director or any other stockholder
of at least one percent (1%) of the Shares outstanding following the consummation of the Offering (calculated on an as-converted, fully
diluted basis) (each, a “
Major Holder
”) who is a party to a lock-up agreement other than the undersigned (each, a “
Release
”
and, collectively, “
Releases
”), then the same percentage of Shares held by the undersigned on the date of such release
or waiver as the percentage of the total number of outstanding Shares of the Company held by such officer, director or such Major Holder
on the date of such Release that are the subject of such Release shall be immediately and fully released by the Representatives on the
same terms from the applicable prohibitions set forth herein. Notwithstanding the foregoing, the provisions of this paragraph shall not
apply (1) if the aggregate amount of Shares subject to Release (whether in one or multiple Releases) is not more than one percent (1%)
of the Shares outstanding following the consummation of the Offering (calculated on an as-converted, fully diluted basis); (2) such Release
is in response to a request from the Company’s management team to release directors or officers from the foregoing restrictions
in response to a financial hardship, in an amount not to exceed $1,000,000 per director or officer and $2,500,000 in the aggregate; (3)
if the Release is effected solely to permit a transfer not involving a disposition for value and such transferee agrees in writing to
be bound by the same terms described in this letter agreement to the extent and for the duration that such terms remain in effect at the
time of transfer; or (4) if the Release is effected in connection with any secondary underwritten public offering, whether or not such
offering or sale is wholly or partially a secondary offering of Shares or Related Securities during the Lock-up Period (a “Follow-on
Offering”);
provided that
(i) such Release shall only be granted for the purpose of participating in such Follow-on Offering
and (ii) the undersigned, to the extent the undersigned has a contractual right to demand or require the registration of the undersigned’s
Shares or otherwise “piggyback” on a registration statement filed by the Company for the offer and sale of its Shares, shall
be offered the opportunity to participate on a pro rata basis consistent with such contractual rights in such Follow-on Offering and on
pricing terms that are no less favorable than the terms of the Follow-on Offering. The Representatives shall use commercially reasonable
efforts to notify the Company three days prior to a Release subject to this paragraph and the Company shall thereafter promptly (and in
any event within two business days) notify the undersigned thereof (provided that the failure to provide such notice shall not give rise
to any claim or liability against the Representatives or the underwriters).
A-
3
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of the offer and sale of any Shares and/or any Related Securities owned either
of record or beneficially by the undersigned, including any rights to receive notice of the Offering.
The undersigned confirms that the undersigned has not, and has no knowledge
that any Family Member has, directly or indirectly, taken any action designed to or that might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares. The undersigned
will not take, and will use reasonable best efforts to cause any Family Member not to take, directly or indirectly, any such action.
The undersigned acknowledges and agrees that the underwriters have
not provided any recommendation or investment advice, nor have the underwriters solicited any action from the undersigned with respect
to the Offering and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed
appropriate.
Whether or not the Offering occurs as currently contemplated or at
all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the underwriters.
This letter agreement shall automatically terminate and be of no further
effect upon the earliest to occur, if any, of (i) the Representatives, on behalf of the underwriters, or the Company, advising the other
party in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii)
the termination of the Underwriting Agreement before the sale of the Shares to the underwriters, (iii) the Registration Statement (as
defined in the Underwriting Agreement) filed with the Securities and Exchange Commission with respect to the Offering is withdrawn, and
(iv) October 31, 2026, in the event that the Underwriting Agreement has not been executed by such date (provided that the Company may
by written notice to the undersigned prior to October 31, 2026, extend such date for a period of up to three additional months). Upon
any such termination, the undersigned shall be automatically released from all obligations under this letter agreement.
The undersigned hereby represents and warrants that the undersigned
has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will be binding on
the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.
This letter agreement may be delivered via facsimile, electronic mail
(including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes.
A-
4
This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
[Remainder of page intentionally left blank]
A-
5
Signature
Printed Name of Person Signing
(Indicate capacity of person signing if
signing as custodian or trustee, or on behalf
of an entity)
A-
6
Certain Defined Terms
Used in Lock-up Agreement
For purposes of the letter agreement to which this Annex A is attached
and of which it is made a part:
·
“
Call Equivalent Position
” shall have the meaning set forth in Rule 16a-1(b) under the Exchange Act.
·
“
Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended.
·
“
Family Member
” shall mean the spouse of the undersigned, an immediate family member of the undersigned or an immediate
family member of the undersigned's spouse, in each case living in the undersigned's household or whose principal residence is the undersigned's
household (regardless of whether such spouse or family member may at the time be living elsewhere due to educational activities, health
care treatment, military service, temporary internship or employment or otherwise). “
Immediate family member
” as used
above shall have the meaning set forth in Rule 16a-1(e) under the Exchange Act.
·
“
Lock-up Period
” shall mean the period beginning on the date hereof and continuing through the close of trading
on the date that is 60 days after the date of the Prospectus (as defined in the Underwriting Agreement).
·
“
Put Equivalent Position
” shall have the meaning set forth in Rule 16a-1(h) under the Exchange Act.
·
“
Related Securities
” shall mean any options or warrants or other rights to acquire Shares or any securities exchangeable
or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable or exercisable for or
convertible into Shares.
·
“
Securities Act
” shall mean the Securities Act of 1933, as amended.
·
“
Sell or Offer to Sell
” shall mean to:
–
sell, offer to sell, contract to sell or lend,
–
effect any short sale or establish or increase a Put Equivalent Position or liquidate or decrease any Call Equivalent Position,
–
pledge, hypothecate or grant any security interest in, or
–
in any other way transfer or dispose of,
in each case whether effected directly
or indirectly.
·
“
Swap
” shall mean any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the
economic risk of ownership of Shares or Related Securities, regardless of whether any such transaction is to be settled in securities,
in cash or otherwise.
Capitalized terms not defined in this Annex A shall have the meanings
given to them in the body of this lock-up agreement.
A-
7
Exhibit B
Directors, Executive Officers and Others
Signing Lock-up Agreement
Directors:
Mona Ashiya, Ph.D.
Steven Hoerter
Bill Lundberg, M.D.
Peter Silverman, J.D.
William White, J.D.
Executive Officers:
Rachael Alford
Rebecca Frey, Pharm.D.
Lori Payton
Tyler Zeronda
Steven Ryder, M.D.
Others:
OrbiMed Private Investments X, LP
OrbiMed Genesis Master Fund, L.P
EN-
1

----- tm2624918d3_ex5-1.htm -----
EX-5.1
3
tm2624918d3_ex5-1.htm
EXHIBIT 5.1
Exhibit 5.1
September 14, 2026
Yarrow Bioscience, Inc.
470 James Street, Suite 007
New Haven, CT 06513
Re:
Yarrow
Bioscience, Inc.
Registration Statement
on Form S-3 (File No. 333-277609)
Ladies and Gentlemen:
We have examined (a) the Registration
Statement on Form S-3 (File No. 333-277609) and Post-Effective Amendment No. 1 thereto (the “
Registration Statement
”),
of Yarrow Bioscience, Inc., a Delaware corporation (the “
Company
”), filed with the Securities and Exchange Commission
(the “
Commission
”) pursuant to the Securities Act of 1933, as amended (the “
Securities Act
”), (b)
the prospectus supplement thereto dated September 10, 2026 (the “
Prospectus Supplement
”), in connection with the offering
by the Company of up to 6,634,615 shares of the Company’s common stock (the “
Common Stock
”), par value $0.0001
per share (the “
Shares
”). The Shares are being sold pursuant to an Underwriting Agreement, dated September 10, 2026,
among the Company and the representatives of the underwriters named therein.
In arriving at the opinion expressed
below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies
of the originals, of specimen Common Stock certificates and such other documents, corporate records, certificates of officers of the
Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render the opinions set
forth below. In our examination, we have assumed without independent investigation the genuineness of all signatures, the legal capacity
and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies.
Based upon the foregoing, and subject
to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against
payment therefor as set forth in the Registration Statement, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion
as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “
Legal Matters
”
in the Registration Statement and the Prospectus Supplement. In giving these consents, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Gibson, Dunn &
Crutcher LLP
One Embarcadero Center Suite 2600 | San Francisco, CA 94111-3715 | T: 415.393.8200 | F: 415.393.8306 | gibsondunn.com
September 14, 2026
Page 2
Very truly yours,
/s/ Gibson, Dunn
& Crutcher LLP