Verastem 以每股8美元溢价定价2.5亿美元增发（净筹约2.347亿），约3125万新股含预付权证，盘中已巨量充分定价

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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):
October 14, 2026
Verastem,
Inc.
(Exact Name of Registrant as Specified in
Charter)
Delaware
001-35403
27-3269467
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
117 Kendrick Street
,
Suite 500
,
Needham
,
MA
02494
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including
area code:
(
781
)
292-4200
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common stock, $0.0001 par value per share
VSTM
The
Nasdaq
Capital Market
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company
¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
¨
Item 8.01 Other Events.
On October 14, 2026, Verastem, Inc. (the “Company”)
entered into an underwriting agreement (the “Underwriting Agreement”) with Jefferies LLC and Guggenheim Securities, LLC, as
representatives of the several underwriters named in Schedule I thereto (the “Underwriters”), relating to the underwritten
offering, issuance and sale by the Company of: (i) 30,937,500 shares (the “Shares”) of the Company’s common stock, par
value $0.0001 per share (the “Common Stock”), and (ii) to certain investors, pre-funded warrants (the “Pre-Funded Warrants”)
to purchase up to 312,503 shares of Common Stock (collectively, the “Offering”). All of the Shares and the Pre-Funded Warrants
will be sold by the Company. Each share of Common Stock is being offered at an offering price of $8.00, less the underwriting discounts
and commissions, and each Pre-Funded Warrant is being offered at an offering price of $7.9999, which is equal to the offering price per
share of Common Stock less the $0.0001 exercise price of each Pre-Funded Warrant, less the underwriting discounts and commissions.
The Company expects to receive net proceeds
from the Offering, after deducting underwriting discounts and commissions and estimated offering expenses, of approximately $234.7 million.
The Offering was made pursuant to the Company’s
shelf registration statement on Form S-3, as amended (File No. 333-289399), which was declared effective on August 15, 2025. The closing
of the Offering is expected to take place on or about October 15, 2026, subject to the satisfaction of customary closing conditions.
Each Pre-Funded Warrant will have an exercise
price equal to $0.0001 per underlying share of Common Stock. Each Pre-Funded Warrant is exercisable for the number of shares of the Company’s
Common Stock stated therein. The Pre-Funded Warrants will not expire and are exercisable in cash or by means of a cashless exercise.
Each Pre-Funded Warrant will be exercisable
in whole or in part by delivering a duly executed exercise notice accompanied by payment in full for the number of shares of Common Stock
purchased upon such exercise. The exercise price and the number of shares of Common Stock issuable upon exercise of each Pre-Funded Warrant
are subject to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting the Common Stock as well as upon any distribution of assets, including cash, stock or other property, to the
Company’s stockholders.
The Company may not effect the exercise of
any Pre-Funded Warrant, and a holder will not be entitled to exercise any portion of any Pre-Funded Warrant if, upon giving effect to
such exercise, the aggregate number of shares of Common Stock beneficially owned by the holder (together with its affiliates) would exceed
4.99% or 9.99%, at the election of the holder (or such higher percentage up to 19.99%, at the election of the holder) of the number of
shares of Common Stock outstanding immediately after giving effect to the exercise, which percentage may be increased or decreased at
the holder’s election upon 61 days’ notice to the Company subject to the terms of such Pre-Funded Warrants, provided that
such percentage may in no event exceed 19.99%.
In addition, upon the consummation of an acquisition
(as described in the Pre-Funded Warrants), each Pre-Funded Warrant will automatically be converted into the right of the holder of such
Pre-Funded Warrant to receive the kind and amount of securities, cash or other property that such holders would have received had they
exercised such Pre-Funded Warrant immediately prior to such acquisition, without regard to any limitations on exercise contained in the
Pre-Funded Warrants. The foregoing description of the Pre-Funded Warrants is qualified in its entirety by reference to the Form of Pre-Funded
Warrant filed as Exhibit 4.1 to this Current Report on Form 8-K.
The Underwriting Agreement contains customary
representations, warranties, and agreements by the Company and customary conditions to closing, indemnification obligations of the Company
and the Underwriters, including for liabilities under the Securities Act of 1933, as amended (the “Securities Act”), and termination
provisions.
A copy of the Underwriting Agreement is filed
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Ropes & Gray LLP, counsel to the Company,
has issued an opinion to the Company, dated October 14, 2026, regarding the Shares and Pre-Funded Warrants to be sold in the Offering.
A copy of the opinion is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K, including
the exhibits hereto, shall not constitute an offer to sell or the solicitation of an offer to buy any securities of the Company, which
is being made only by means of a written prospectus meeting the requirements of Section 10 of the Securities Act, nor shall there be any
sale of the Company’s securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of such jurisdiction.
Item
9.01 Financial Statements and Exhibits.
Exhibit No.
Description
1.1
Underwriting Agreement, dated October 14, 2026, among Verastem, Inc. and Jefferies LLC and Guggenheim Securities, LLC, as representatives of the several underwriters
4.1
Form of Pre-Funded Warrant
5.1
Opinion of Ropes & Gray LLP
23.1
Consent of Ropes & Gray LLP (included in Exhibit 5.1 above)
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.
VERASTEM, INC.
Dated: October 14, 2026
By:
/s/ Daniel W. Paterson
Daniel W. Paterson
President and Chief Executive Officer

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EX-1.1
2
tm2627537d6_ex1-1.htm
EXHIBIT 1.1
Exhibit 1.1
Execution Version
30,937,500 Shares of Common Stock
Pre-Funded Warrants to Purchase up to 312,503
Shares of Common Stock
Verastem, Inc.
UNDERWRITING AGREEMENT
October 14, 2026
JEFFERIES LLC
GUGGENHEIM SECURITIES, LLC
As Representatives of the several Underwriters
c/o JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
c/o Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
Ladies and Gentlemen:
Introductory.
Verastem, Inc., a Delaware corporation (the “
Company
”), proposes to issue and sell to the several underwriters
named in
Schedule A
(the “
Underwriters
”) (i) an aggregate of 30,937,500 shares (the “
Shares
”)
of its common stock, par value $0.0001 per share (the “
Common Stock
”) and (ii) pre-funded warrants, substantially
in the form of
Exhibit C
hereto, to purchase up to an aggregate of 312,503 Shares (the “
Pre-Funded Warrants
”).
The 30,937,500 Shares to be sold by the Company are called the “
Offered Shares
.” The shares of Common Stock issuable
upon exercise of the Pre-Funded Warrants are referred to herein as the “
Warrant Shares
.” The Offered Shares, the Pre-Funded
Warrants and the Warrant Shares are collectively referred to herein as the “
Offered Securities
.” Jefferies LLC (“
Jefferies
”)
and Guggenheim Securities, LLC (“
Guggenheim Securities
”) 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 Securities. 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 U.S. Securities and Exchange Commission (the “
Commission
”) a shelf registration
statement on Form S-3, as amended, File No. 333-289399, including a base prospectus (the “
Base Prospectus
”)
to be used in connection with the offering and sale of the Offered Securities. 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 Securities 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 October 13, 2026 describing the Offered Securities 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 Securities 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 Securities 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 Securities 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 6:10 a.m. (New York City time) on October 14, 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 information included on
Schedule
B-1
hereto and the free writing prospectuses, if any, identified in
Schedule B-2
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 Securities
contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act).
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, the Time of Sale 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 Time of Sale 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 Securities as contemplated by Section 3(n) of this Agreement.
2
The Company hereby confirms
its agreements with the Underwriters as follows:
Section 1.
Representations
and Warranties of the Company.
A.
Representations
and Warranties of the Company
.
The Company hereby represents, warrants and covenants to each Underwriter, as of the date of this
Agreement, as of the Closing Date (as hereinafter defined) as follows:
(a)
The
Registration Statement has become effective under the Securities Act. The Company has complied 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 Company meets the
requirements for use of Form S-3 under the Securities Act specified in the Financial Industry Regulatory Authority (“
FINRA
”)
Conduct Rule 5110(B)(7)(C)(i). 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)
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 Securities. Each of the Registration Statement
and any post-effective amendment thereto, at the time it became or becomes effective until such time as the Underwriters are no longer
required to deliver a Prospectus in order to confirm sales of the Offered Securities, 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
(including any preliminary prospectus wrapper) did not, and at the Closing Date (as defined in ‎Section 2) 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 to
make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus (including
any Prospectus wrapper), as of its date, did not, and at the Closing Date, 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)
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 Securities 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 offer and sale
of the Offered Securities 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-2
, and electronic
road shows, if any, furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not,
without the prior written consent of the Representatives, 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)
Prior
to the completion of the Underwriters’ distribution of the Offered Securities, the Company has not distributed and will not distribute
any offering material in connection with the offering and sale of the Offered Securities other than the Registration Statement, the Time
of Sale Prospectus, the Prospectus or any free writing prospectus reviewed and consented to by the Representatives, or the free writing
prospectuses, if any, identified on
Schedule B-2
hereto.
(e)
This
Agreement has been duly authorized, executed and delivered by the Company.
(f)
The
Offered Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company
against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, 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)
There
are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration
Statement or included in the offering contemplated by this Agreement and the Pre-Funded Warrants, except for such rights as have been
duly waived.
(h)
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 would 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 (as defined below),
considered as one entity or (B) the ability of the Company to consummate the transactions contemplated by this Agreement and the
Pre-Funded Warrants or perform its obligations hereunder and under the Pre-Funded Warrants (any such change being referred to herein
as a “
Material Adverse Change
”); (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.
(i)
Each
of the Company and its significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission)
(the “
Subsidiaries
”) has been duly organized and is validly existing and in good standing as a corporation or other
business entity under the laws of the jurisdiction in which it is chartered or organized with full corporate, limited liability company
or limited partnership power and authority to own or lease, as the case may be, and to operate its properties and conduct its business
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure
to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, result in a Material
Adverse Change.
5
(j)
All
the outstanding shares of capital stock or limited liability company or limited partnership interests, as applicable, of each Subsidiary
have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock or
interests of the Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or encumbrances. Except as set forth in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, there are no outstanding options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for capital stock or other
ownership interests of any Subsidiary of the Company.
(k)
The
Company’s authorized equity capitalization is as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus
under the heading “Capitalization”; the capital stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; the outstanding shares of capital stock
of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Offered Securities have been
duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to the terms of this Agreement,
will be fully paid and non-assessable; the Offered Securities are duly listed, and admitted and authorized for trading, subject to official
notice of issuance and evidence of satisfactory distribution, on the Nasdaq Capital Market (“
Nasdaq
”); the certificates
for the Offered Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Offered Securities; except as set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company
are outstanding; and all offers and sales by the Company of the Company’s shares of common stock prior to the date hereof were
at all relevant times duly registered under the Securities Act or were exempt from the registration requirements of the Securities Act
and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities
or blue sky laws. No holder of the Offered Securities will be subject to personal liability for obligations of the Company solely by
reason of being such a holder. The Pre-Funded Warrants have been duly authorized by the Company and, when executed and delivered by the
Company pursuant to this Agreement, will constitute valid, legal and binding obligations of the Company, enforceable in accordance with
their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity. The Warrant Shares have been duly authorized and validly reserved
for issuance upon exercise of the Pre-Funded Warrants in a number sufficient to meet the current exercise requirements and, when issued
and delivered in accordance with the terms thereof, will be validly issued, fully paid and nonassessable, and the holders thereof will
not be subject to personal liability by reason of being such holders.
(l)
The
Company is not and, immediately after giving effect to the offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, will not be an “investment
company” or an entity “controlled” by an “investment company”, in each case, as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(m)
No
consent, approval, authorization, filing with, license, registration, qualification or order of any court or governmental agency or body
is required in connection with the transactions contemplated herein or in the Pre-Funded Warrants, except such as have been obtained
under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Offered Shares and the Pre-Funded Warrants and, upon exercise of the Pre-Funded Warrants, the Warrant Shares
by the Underwriters in the manner contemplated herein or therein and in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
6
(n)
Neither
the issue and sale of the Offered Shares and Pre-Funded Warrants and, upon exercise of the Pre-Funded Warrants, the Warrant Shares nor
the consummation of any other of the transactions contemplated herein or in the Pre-Funded Warrants nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation of, or constitute a default under, result in the termination, modification
or acceleration of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter, by-laws or similar organizational documents of the Company or any of its Subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its or their property is subject
or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company
or any of its Subsidiaries or any of its or their properties, except, in the case of clauses (ii) and (iii) above, for any
such conflict, breach, violation, default, lien, charge or encumbrance that would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change.
(o)
Neither
the Company nor any Subsidiary is in violation or default of (i) any provision of its charter, bylaws or similar organizational
documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order, writ or decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any of its properties, assets or operations,
as applicable, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually
or in the aggregate, result in a Material Adverse Change.
(p)
No
holders of securities of the Company or its Subsidiaries have rights to require the registration of such securities under the Securities
Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Offered Shares and the
Pre-Funded Warrants and, upon exercise of the Pre-Funded Warrants, the Warrant Shares.
(q)
The
consolidated historical financial statements, including the notes thereto, of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly the financial
condition, results of operations and cash flows of the Company as of the dates and for the periods indicated (subject to normal year-end
audit adjustments for interim financial statements), and have been prepared in compliance with the applicable accounting requirements
of the Securities Act and the Exchange Act, as applicable, and in conformity with U.S. generally accepted accounting principles (“
GAAP
”)
applied on a consistent basis throughout the periods involved (except for such adjustments to accounting standards and practices as otherwise
noted therein). All non-GAAP financial information included or incorporated by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus complies with the requirements of Regulation G and Item 10 of Regulation S-K under the Securities Act,
to the extent applicable; and there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Securities
Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or other persons, that could reasonably be expected
to affect materially the Company’s liquidity or the availability of or requirements for its capital resources. Except as disclosed
therein, there is no pro forma or as adjusted financial information or other financial statements or supporting schedules or exhibits
which are required to be included in the Registration Statement, the Time of Sale Prospectus and the Prospectus or a document incorporated
by reference therein in accordance with Regulation S-X.
7
(r)
No
action, suit, inquiry or proceeding brought by or before any court or governmental agency, authority or body or any arbitrator (“
Actions
”)
involving the Company or any of its Subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened
that could reasonably be expected to, individually or in the aggregate, result in a Material Adverse Change, except as set forth in or
contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto). There
are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus that are not so described therein.
(s)
Each
of the Company and each of its Subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently
conducted except where failure to do so would not be reasonably expected, individually or in the aggregate, to result in a Material Adverse
Change.
(t)
Ernst &
Young LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, are independent public accountants with respect to the Company and its Subsidiaries
within the meaning of the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight
Board (United States) and as required by the Securities Act.
(u)
There
are no transfer taxes or other similar taxes, fees or charges under U.S. federal law or the laws of any U.S. state, or any political
subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement and the Pre-Funded Warrants
or the issuance, sale or delivery by the Company of the Offered Shares and the Pre-Funded Warrants and, upon exercise of the Pre-Funded
Warrants, the Warrant Shares.
(v)
The
Company and each of its Subsidiaries has filed all tax returns that are required to be filed or has requested extensions thereof (except
in any case in which the failure so to file would not, individually or in the aggregate, result in a Material Adverse Change and except
as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except (i) for any such assessment, fine or penalty that is currently being contested
in good faith and for which adequate reserves have been provided in accordance with GAAP or as would not, individually or in the aggregate,
result in a Material Adverse Change, or (ii) as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus
and the Prospectus (exclusive of any supplement thereto).
8
(w)
No
labor problem or dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, which would reasonably be expected to result in a Material Adverse Change.
(x)
The
Company and each of its Subsidiaries are insured by reputable insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance insuring
the Company or any of its Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and
effect; and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not result in a Material Adverse Change.
(y)
No
Subsidiary of the Company is currently prohibited or restricted, directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary’s capital stock or other ownership interest, from repaying to the Company any
loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company
or any other Subsidiary of the Company.
(z)
The
Company and its Subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities
necessary to conduct their respective businesses. The Company and its Subsidiaries are in compliance with the terms of such licenses,
certificates, permits and other authorizations, except where the failure to so comply would not, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Change. Neither the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Change.
(aa)
The
Company and its Subsidiaries maintain a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) that complies with the requirements of the Exchange Act and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
GAAP. The Company and its Subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and its Subsidiaries’ internal controls over financial reporting are effective and the Company and its Subsidiaries
are not aware of any material weakness in their internal controls over financial reporting. The Company’s independent auditors
and board of directors have been advised of: (i) all “material weaknesses” and “significant deficiencies”
(each, as defined in Rule 12b-2 of the Exchange Act), if any, in the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or
not material, that involves management or other employees who have a role in the Company’s internal controls (whether or not remediated);
all such material weaknesses and significant deficiencies, if any, have been disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus in all material respects; and since the date of the most recent evaluation of such disclosure controls
and procedures and internal controls, there have been no significant changes in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
9
(bb)
The
Company and its Subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that (i) are designed to ensure that material information relating to the Company and its Subsidiaries is made
known to the Company’s principal executive officer and its principal financial officer by others within those entities, especially
during the periods in which the periodic reports required under the Exchange Act are being prepared, (ii) have been evaluated by
management of the Company for effectiveness as of the end of the Company’s most recent fiscal quarter, and (iii) are effective
in all material respects to perform the functions for which they were established. Since the end of the Company’s most recent audited
fiscal year, there have been no significant deficiencies or material weaknesses in the Company’s internal control over financial
reporting, whether or not remediated, and no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(cc)
The
Company (i) has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Securities and (ii) will not, directly or indirectly, sell, bid for, or purchase
the Offered Securities to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the
Offered Securities other than the Underwriters.
(dd)
The
Company and its Subsidiaries and their respective properties, assets and operations are in compliance with, and the Company and its Subsidiaries
hold all permits, authorizations and approvals required under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not, individually or in the aggregate, result in a Material Adverse
Change; there are no past, present or, to the Company’s knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that would reasonably be expected to give rise to any material costs or liabilities
to the Company or its Subsidiaries under, or to interfere with or prevent compliance by the Company or its Subsidiaries with, Environmental
Laws; except as would not, individually or in the aggregate, result in a Material Adverse Change, neither the Company nor its Subsidiaries
(i) is the subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any
pending or, to the Company’s knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order
or (v) has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any Hazardous Materials (as defined below) (as used herein, “
Environmental
Law
” means any U.S. federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or common law, relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials, and “
Hazardous Materials
”
means any material (including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated
by or may give rise to liability under any Environmental Law).
10
(ee)
(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
an entity, whether or not incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14)
of ERISA or any entity that would be regarded as a single employer with the Company under Section 414 of the Internal Revenue Code
of 1986, as amended (the “
Code
”)) would have any liability (each, a “
Plan
”) complies in form with
the requirements of all applicable statutes, rules and regulations including ERISA and the Code, and has been maintained and administered
in substantial compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA
and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any Plan excluding transactions to which a statutory or administrative prohibited transaction exemption
applies; and for each such Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using reasonable actuarial assumptions; (iii) no Plan is, or is
reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no Plan that
is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status”
or “critical status” (within the meaning of Sections 304 and 305 of ERISA); (iv) no “reportable event” (within
the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected
to occur; and (v) each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination or opinion letter from the Internal Revenue Service as to its qualification, and to the knowledge of the Company, nothing
has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(ff)
There
is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s directors or officers,
in their capacities as such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
11
(gg)
(i) Neither
the Company nor the Subsidiaries, nor any director or officer of the Company or any Subsidiary nor, to the Company’s knowledge,
any employee of the Company or any Subsidiary, agent, affiliate, representative or other person acting on behalf of the Company or any
Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to
disclose any contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate
for, any U.S. federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation
of any applicable law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect,
exists between or among the Company or any Subsidiary or, to the Company’s knowledge, any affiliate of any of them, on the one
hand, and the directors, officers and stockholders of the Company or any Subsidiary, on the other hand, that is required by the Securities
Act to be described in the Registration Statement and the Prospectus that is not so described; and (iii) neither the Company nor
any Subsidiary nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent,
affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law
(collectively, “
Anti-Corruption Laws
”), (B) promised, offered, provided, attempted to provide or authorized the
provision of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining business, influencing
any act or decision of the recipient, or securing any improper advantage; or (C) made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any Anti-Corruption Laws.
(hh)
The
operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “
Money
Laundering Laws
”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(ii)
(i) The
Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “
Entity
”) or, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity
(in this paragraph (ii), “
Person
”) that is, or is owned or controlled by a Person that is (A) the subject of
any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“
OFAC
”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “
Sanctions
”), nor (B) located, organized or resident in a country or
territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation,
Crimea, so-called Donetsk People’s Republic and so-called Luhansk People’s Republic regions of Ukraine, Cuba, Iran,
Syria (prior to July 1, 2025) and North Korea) (the “
Sanctioned Countries
”); (ii) the Entity represents
and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other Person (A) to fund or facilitate any activities or business of or
with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a
Sanctioned Country; or (B) in any other manner that will result in a violation of Sanctions by any Person (including any Person
participating in the offering, whether as underwriter, advisor, investor or otherwise); (iii) the Entity represents and covenants
that, except as detailed in the Registration Statement and the Prospectus, for the past ten years, it has not engaged in, is not now
knowingly engaging in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.
12
(jj)
The
Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications, and databases (collectively, “
IT Systems
”) are adequate for, and operate and perform in all material
respects as required in connection with the operation of the business of the Company as currently conducted, free and clear of all material
bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries have implemented and
maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain
and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and data, including all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“
Confidential
Data
”) used in connection with their businesses. “
Personal Data
” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR (defined below); (iv) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “
HIPAA
”); (v) any “personal information” as defined by the California
Consumer Privacy Act (“
CCPA
”); and (vi) any other piece of information that allows the identification of such
natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health
or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those
that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review
or investigations relating to the same. The Company and its Subsidiaries are presently in material compliance with all applicable laws
or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential Data, and Personal Data
and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or modification.
(kk)
The
Company and its Subsidiaries are, and at all prior times were, in material compliance with all applicable U.S. state and federal data
privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the European Union General Data Protection Regulation
(“
GDPR
”) (EU 2016/679) (collectively, the “
Privacy Laws
”). To ensure compliance with the Privacy
Laws, the Company has in place, complies with, and takes appropriate steps to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, processing, disclosure, handling, and analysis
of Personal Data and Confidential Data (the “
Policies
”). The Company has at all times made all disclosures to users
or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in
any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect.
The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would
reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that
imposes any obligation or liability under any Privacy Law, in each case, except as would not be expected, individually or in the aggregate,
to result in a Material Adverse Change.
13
(ll)
The
interactive data in the eXtensible Business Reporting Language included as an exhibit to or incorporated by reference in the Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(mm)
The
Company and its Subsidiaries have good and marketable title to all personal property owned by them, free and clear of all encumbrances
and defects except those that (i) do not materially interfere with the use made and proposed to be made of such property by the
Company and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change. Any real or personal property described in the Registration Statement, the Time of Sale Prospectus or the Prospectus
as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those
matters that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or any of
its Subsidiaries or (B) would not, individually or in the aggregate, result in a Material Adverse Change.
(nn)
No
relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries on the one hand, and the directors,
officers, or shareholders of the Company on the other hand, which is required to be described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus and which is not so described.
(oo)
The
Subsidiaries listed on Schedule C attached hereto are the only significant Subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X.
(pp)
The
statistical and market-related data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate. To the extent required,
the Company has obtained written consent to the use of such data from such sources.
(qq)
Neither
the issuance, sale and delivery of the Offered Shares and the Pre-Funded Warrants and, upon exercise of the Pre-Funded Warrants, the
Warrant Shares nor the application of the proceeds thereof by the Company as described in each of 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.
14
(rr)
Since
the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration Statement,
the Time of Sale Prospectus and the Prospectus (i) there has not been any change in the capital stock, short-term debt or long-term
debt of the Company or any of its Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, prospects, earnings, rights, assets, management, financial position, stockholder’s
equity, or results of operations of the Company and its Subsidiaries taken as a whole; (ii) neither the Company nor any of its Subsidiaries
has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and
its Subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and
its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(ss)
No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included
in any of the Registration Statement, the Time of Sale Prospectus and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(tt)
The
Company and its Subsidiaries own, possess, license or have other valid and enforceable rights to use all patents, patent applications,
trademarks, service marks, trademark and service mark registrations, trade names, copyrights, licenses, inventions, technology, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and
other intellectual property (collectively, the “
Intellectual Property
”) used in or necessary for the conduct of the
Company’s business as presently conducted or proposed to be conducted as described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus: (a) the
Company is either the sole owner or co-owner of the Intellectual Property owned by it and has the valid and enforceable right to use
such Intellectual Property, and to the knowledge of the Company, based on the agreements with co-owners with respect to any co-owned
Intellectual Property to which the Company is a party, has neither the obligation to obtain consent to sublicense nor a duty of accounting
to any co-owner, as applicable, and there are no rights of third parties to any Intellectual Property that is owned by the Company, other
than any co-owner of any patent or patent application constituting Intellectual Property who is listed as such on the records of the
U.S. Patent and Trademark Office (“
USPTO
”); (b) to the knowledge of the Company, there is no infringement or
misappropriation by third parties of any Intellectual Property owned by or exclusively licensed to the Company, and no third party has
infringed or misappropriated any Intellectual Property owned by or exclusively licensed to the Company; (c) there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(d) the Intellectual Property owned by the Company and, to the knowledge of the Company, the Intellectual Property licensed to the
Company, is valid, subsisting and enforceable, there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (e) to the knowledge of the Company, the Company does not infringe or misappropriate,
and has not infringed or misappropriated, any third party Intellectual Property, and there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise violates third party Intellectual Property; (f) the Company
is not obligated to pay a material royalty, grant a license or option, or provide other material consideration to any third party in
connection with the Intellectual Property; (g) all employees or contractors engaged in the development of Intellectual Property
on behalf of the Company have executed an invention assignment agreement whereby such employees or contractors presently assign all of
their right, title and interest in and to such Intellectual Property to the Company, and to the knowledge of the Company no such agreement
has been breached or violated; (h) to the knowledge of the Company, no employee of the Company is in or has been in violation of
any term of any employment contract, patent disclosure agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company; (i) the Company uses, and has used, commercially reasonable efforts to appropriately maintain the confidentiality
of all information intended to be maintained as a trade secret; and (j) no government funding, facilities or resources of a university,
college, other educational institution or research center was used in the development of any Intellectual Property solely owned or purported
to be solely owned by the Company that would confer upon any governmental agency or body, university, college, other educational institution
or research center any claim or right of ownership to any such Intellectual Property. The Company expects the product candidates described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus as under development by the Company to fall within the
scope of the claims of one or more patents or patent applications owned by or exclusively licensed to the Company.
15
(uu)
(a) All
patents and patent applications owned by or exclusively licensed to the Company or under which the Company has rights have, to the knowledge
of the Company, been duly and properly filed and each issued patent is being diligently maintained; (b) the Company is unaware of
any facts that would preclude the issuance of a valid and enforceable patent on any pending patent applications included in the Intellectual
Property; (c) to the knowledge of the Company, the Company and the parties prosecuting such applications have complied or are in
the process of complying with their duty of candor and disclosure to the USPTO, and all such requirements in the relevant foreign patent
authority having similar requirements as the case may be, in connection with such patents and patent applications for which it has filing,
prosecution and/or maintenance responsibilities; and (d) to the knowledge of the Company, there is no third party patent or patent
application that contains claims that dominate or may dominate (as such term is described in 35 U.S.C. §135 and 37 C.F.R. 41.100
to 41.208) the issued claims of any patents owned by or exclusively licensed to the Company or from which the issued claims of any patents
owned by or exclusively licensed to the Company are derived (as such term is described in 35 U.S.C. §135 and 37 C.F.R. 42.400 to
42.412).
(vv)
Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company (i) does not have any material
lending or other relationship with any bank or lending affiliate of the Representatives and (ii) does not intend to use any of the
proceeds from the sale of the Offered Shares and Pre-Funded Warrants (or from the exercise of the Pre-Funded Warrants) hereunder to repay
any outstanding debt owed to the Representatives or any affiliate of the Representatives.
16
(ww)
(i) The
Company and its Subsidiaries have fee simple title to or leasehold interest in all of the properties described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus as owned or leased by them and the improvements (exclusive of improvements owned by tenants)
located thereon (the “
Properties
”), in each case, free and clear of all liens, encumbrances, claims, security interests,
restrictions and defects, except such as are disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or do not materially affect the value of such Property and do not materially interfere with the use made and proposed to be made of such
Property by the Company and any Subsidiary or would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change; (ii) neither the Company nor any of its Subsidiaries knows of any condemnation which is threatened and which if
consummated would reasonably be expected to result in a Material Adverse Change; (iii) to the best of the Company’s knowledge,
each of the Properties complies with all applicable codes, laws and regulations (including without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties), except for such failures to comply that would not individually or
in the aggregate reasonably be expected to materially affect the value of such Property or interfere in any material respect with the
use made and proposed to be made of such Property by the Company or any Subsidiary; and (iv) to the knowledge of the Company, except
as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus and, with respect to (A) below,
except as would not individually or in the aggregate reasonably be expected to materially affect the value of such Property or interfere
in any material respect with the use made and proposed to be made of such Property by the Company or any Subsidiary: (A) there are
no uncured events of default, or events that with the giving of notice or passage of time, or both, would constitute an event of default
by any tenant under any of the terms and provisions of any lease described in the Time of Sale Prospectus; and (B) no tenant under
any of the leases at the Properties has a right of first refusal to purchase the premises demised under such lease.
(xx)
The
preclinical studies and clinical trials that are described in, or the results of which are referred to in, the Registration Statement,
the Time of Sale Prospectus and the Prospectus were and, if still pending, are being conducted in all material respects in accordance
with standard accepted medical and scientific research procedures and all applicable protocols, rules and regulations to which they
are subject, including without limitation, any applicable Health Care Laws (as defined below); the descriptions of and information regarding
the results of such studies, tests and trials, and the data and results derived therefrom, described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus are accurate and complete, as of the date indicated, in all material respects and fairly present
the data derived from such tests and trials, and neither the Company nor its Subsidiaries, after due inquiry, has any knowledge of any
other studies, tests, trials, publications, presentations or other information relating to the Company’s products or product candidates
not described in the Registration Statement, the Time of Sale Prospectus and the Prospectus the results of which reasonably call into
question the results described or referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus; neither
the Company nor its Subsidiaries has received any notices or other correspondence from the Food and Drug Administration of the U.S. Department
of Health and Human Services (“
FDA
”) or any committee thereof or from any other U.S. or foreign government or drug
or medical device regulatory agency (collectively, the “
Regulatory Agencies
”) requiring or threatening the termination,
suspension or material modification of any studies, tests or trials that are currently being conducted or proposed to be conducted by
or on behalf of the Company or its Subsidiaries; and the Company and its Subsidiaries have operated and currently are in compliance in
all material respects with all applicable rules, regulations and policies of the Regulatory Agencies.
17
(yy)
Except
as would not, individually or in the aggregate, have or may reasonably be expected to result in a Material Adverse Change: (i) neither
the Company nor its Subsidiaries has received any written notice of adverse finding, warning letter, untitled letter, FDA Form-483 or
other correspondence or notice from any Regulatory Agency or other relevant regulatory authorities, or any other court or arbitrator
or U.S. federal, state, local or foreign governmental or regulatory authority, alleging or asserting noncompliance with any applicable
Health Care Laws or Regulatory Authorizations (in each case, as defined below); (ii) the Company and its Subsidiaries, and to the
Company’s knowledge, their respective directors, officers, employees or agents, are and have been since January 1, 2016 in
compliance with: (A) applicable health care laws, including without limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C.
§ 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. §
1320a-7a), the U.S. Civil False Claims Act (31 U.S.C. § 3729 et seq.), 18 U.S.C. §§ 286, 287, 1035, 1347, 1349 and the
health care fraud criminal provisions under HIPAA (42 U.S.C. § 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), Medicare
(Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), HIPAA, as amended by the Health Information
Technology for Economic and Clinical Health Act (42 U.S.C. § 17921 et seq.), each as amended, and the regulations promulgated thereunder;
and all other comparable local, state, federal, national, supranational and foreign laws, and the regulations promulgated thereunder,
(collectively, “
Health Care Laws
”); and (B) any licenses, certificates, approvals, clearances, exemptions, registrations,
authorizations, permits, and supplements or amendments thereto, required pursuant to any such applicable Health Care Laws (“
Regulatory
Authorizations
”); (iii) the Company and its Subsidiaries possess such valid and current Regulatory Authorizations as required
to conduct their respective businesses as currently conducted, and are not in violation of any term of any such Regulatory Authorizations;
(iv) neither the Company nor any Subsidiary has received written notice that any Regulatory Agency or Governmental Authority has
taken, is taking or intends to take action to limit, suspend, modify or revoke any Regulatory Authorizations, and to the Company’s
knowledge, no Regulatory Agency or Governmental Authority is threatening such action; (v) to the Company’s knowledge, no event
has occurred which allows, or after notice or lapse of time would reasonably be expected to allow, revocation, termination or other impairment
of the rights of the holder of any Regulatory Authorization; (vi) the Company and its Subsidiaries have filed, obtained, maintained
or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any applicable Health Care Laws or Regulatory Authorizations and all such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a
subsequent submission); (vii) neither the Company nor its Subsidiaries has received written notice of any ongoing or pending claim,
action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal, national,
state, provincial, local, municipal, international government or other governmental, administrative or regulatory authority, governmental,
administrative or regulatory agency or body, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral
body (public or private) or self-regulatory organization (each, a “
Governmental Authority
”) or third party alleging
that any product, operation or activity is in violation of any Health Care Laws or has any knowledge that any such Governmental Authority
or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (viii) neither
the Company nor its Subsidiaries or any of their respective directors, officers, employees or, to the Company’s knowledge, agents,
is or has been debarred, suspended or excluded, or has been convicted of any crime or engaged in any conduct that would result in a debarment,
suspension or exclusion from any U.S. federal or state government health care program; and (ix) the Company and its Subsidiaries
are not a party to nor have any ongoing reporting obligations pursuant to any corporate integrity agreement, deferred prosecution agreement,
monitoring agreement, consent decree, settlement order, plan of correction or similar agreement imposed by any Governmental Authority.
18
(zz)
The
Company has established and administers an internal compliance program to assist the Company and the directors, officers and employees
of the Company in complying with applicable Health Care Laws and applicable regulatory guidelines (including, without limitation, those
administered by the FDA and any other foreign, federal, state or local governmental or regulatory authority performing functions similar
to those performed by the FDA), except where such noncompliance would not reasonably be expected to result in a Material Adverse Change,
and such compliance program has been designed and implemented in a manner generally consistent with pharmaceutical industry standards,
including but not limited to the seven elements of an effective compliance program set forth in the Compliance Program Guidance for Pharmaceutical
Manufacturers issued by the Office of Inspector General on May 5, 2003 (68 Fed. Reg. 23,731).
(aaa)
(i) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there have been no recalls, field notifications,
field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts
or other notice or action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company’s products (“
Safety
Notices
”) and (ii) to the Company’s knowledge, there are no facts that would be reasonably likely to result in (x) a
Safety Notice with respect to the Company’s products, (y) a material change in labeling of any of the Company’s respective
products or services, or (z) a termination or suspension of manufacturing, marketing or distribution of any of the Company’s
products or services.
(bbb)
The
manufacture of the Company’s products and product candidates by or, to the Company’s knowledge, on behalf of the Company
is being conducted in compliance in all material respects with all applicable Health Care Laws, including, to the extent applicable and
without limitation, the FDA’s current good manufacturing practice regulations codified at 21 C.F.R. Parts 210 and 211, except as
would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. To the Company’s knowledge,
except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change, (i) the manufacturing
facilities and operations of its suppliers are in compliance in all material respects with all applicable statutes, rules, and regulations
of the FDA and comparable regulatory agencies outside of the United States to which the Company or its contractors and products are subject;
and (ii) none of the contractors involved in producing the Company’s products have received any written notice of adverse
finding, warning letter, or other written correspondence or notice from the FDA or any other federal, state, local or foreign governmental
or regulatory authority alleging or asserting material noncompliance with any Health Care Laws or Regulatory Authorization involving
operations or activities related to Company products.
19
(ccc)
Except
pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement and the Pre-Funded Warrants.
(ddd)
Any
certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with
the offering of the Offered Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
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 Securities
.
(a)
The
Shares and Pre-Funded Warrants
.
Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters
an aggregate of 30,937,500 Shares and Pre-Funded Warrants to purchase up to 312,503 shares of Common Stock. 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 Shares and Pre-Funded Warrants set forth opposite their
names on
Schedule A
. The purchase price per Share to be paid by the several Underwriters to the Company shall be $7.52 per share
(the “
Share Purchase Price
”). The purchase price per Pre-Funded Warrant to be paid by the several Underwriters to
the Company shall be $7.5199 per Pre-Funded Warrant (the “
Pre-Funded Warrant Purchase Price
”).
(b)
The
Closing Date
.
Delivery of the Shares and the Pre-Funded Warrants to be purchased by the Underwriters and payment therefor shall
be made at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston, MA 02111 (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 October 15, 2026, or
such other time and date not later than 1:30 p.m. New York City time on October 15, 2026 as the Representatives shall
designate by notice to the Company (the time and date of such closing are called the “
Closing Date
”). The Company
hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the 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)
Offering
of the Offered Securities
.
The Representatives hereby advise the Company that the Underwriters intend to offer for sale to investors,
initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, their respective portions
of the Offered Securities as soon after this Agreement has been executed as the Representatives, in their sole judgment, have determined
is advisable and practicable.
20
(d)
Payment
for the Offered Securities
.
Payment for the Offered Securities shall be made at the Closing Date by wire transfer of immediately
available funds to the order of the Company.
(i)
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 Offered Shares the Underwriters have agreed to purchase.
Each of Jefferies and Guggenheim Securities, individually and not as the Representatives of the Underwriters, may (but shall not be obligated
to) make payment for any Offered Shares and the Pre-Funded Warrants to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement or the Pre-Funded Warrants.
(e)
Delivery
of the Offered Securities
.
The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the
several Underwriters, the Shares at the Closing Date, against release of a wire transfer of immediately available funds for the amount
of the purchase price therefor. The Pre-Funded Warrants shall be delivered to the Representatives in definitive form. The Pre-Funded
Warrants will be made available for inspection by the Representatives on the business day prior to the Closing Date. If the Representatives
so elect, delivery of the Offered Securities may be made by credit to the accounts designated by the Representatives through The Depository
Trust Company’s full fast transfer or DWAC programs. If the Representatives so elect, the Offered Shares and the Pre-Funded Warrants
shall be registered in such names and denominations as the Representatives shall have requested at least two full business days prior
to the Closing Date and shall be made available for inspection on the business day preceding the Closing Date 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.
Notwithstanding the foregoing,
the Company and the Representatives shall instruct purchasers of the Pre-Funded Warrants to make payment for the Pre-Funded Warrants
on the Closing Date to the Company by wire transfer in immediately available funds to the account specified by the Company at a purchase
price of $7.9999 per Pre-Funded Warrant, in lieu of payment by the Underwriters for such Pre-Funded Warrants, and the Company shall deliver
such Pre-Funded Warrants to such purchasers on the Closing Date in definitive form against such payment, in lieu of the Company’s
obligation to deliver such Pre-Funded Warrants to the Underwriters; provided that, the Underwriters shall withhold $0.48 per Pre-Funded
Warrant with respect to such Pre-Funded Warrants as an offset effected by the Company of its claim for payment by the Underwriters to
the Company for the Shares against the Company’s obligation to pay the amount so withheld with respect to such Pre-Funded Warrants
to the Underwriters. In the event that any purchaser of the Pre-Funded Warrants fails to make payment to the Company for all or part
of the Pre-Funded Warrants on the Closing Date, the Representatives shall either (i) make payment to the Company for such Pre-Funded
Warrants at the Pre-Funded Warrant Purchase Price or (ii) elect, by written notice to the Company, to receive Shares at the Share
Purchase Price in lieu of all or a portion of such Pre-Funded Warrants contemplated to be sold under this Agreement.
21
Section 3.
Additional
Covenants of the Company.
A.
Covenants
of the Company
. 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 each Underwriter 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 Securities 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 Securities,
as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement
as the Underwriters may reasonably request.
(b)
Representatives’
Review of Proposed Amendments and Supplements.
During the period when a prospectus relating to the Offered Securities 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.
(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 Securities (but in any event if at any time through and including the
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 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.
22
(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
Securities 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.
(f)
Certain
Notifications and Required Actions
.
After the date of this Agreement, the Company shall promptly advise the Representatives in
writing (which may be by electronic mail) of: (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 the Base 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 the preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any
order preventing or suspending the use of the 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.
23
(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 reasonable 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 Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions
as may be reasonably designated by the Representatives, shall use reasonable best efforts to comply with such laws and shall continue
such qualifications, registrations and exemptions in effect so long as required for the distribution of the Offered Securities. 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 Securities 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 soon as practicable.
24
(i)
Use
of Proceeds
.
The Company shall apply the net proceeds from the sale of the Offered Securities (including any cash exercise of
the Pre-Funded Warrants) 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 (including the Offered
Shares and the Warrant 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 Securities 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 Securities 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 best efforts to list, subject to notice of issuance, the Offered Shares and the Warrant 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 Securities. 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 Securities; (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 the Representatives, 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.
25
(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 60th 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 16a1(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 as contemplated by this Agreement with respect to the Offered Securities);
(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 or grant Shares or options to purchase Shares or other awards
or Related Securities, or issue Shares upon exercise of options, vesting of restricted stock, or other awards or Related Securities 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, provided that the Company shall cause each newly appointed director or executive officer that is a recipient of any
such Shares or options or other awards to 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) issue Shares pursuant to the conversion of securities or the exercise of pre-funded
warrants or warrants, which securities, pre-funded warrants or warrants are outstanding on the date hereof and described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus; (D) facilitate the transfer of Shares under a trading plan pursuant to
Rule 10b5-1 under the Exchange Act (a “
Trading Plan
”) that is existing on the date hereof which has been provided
to the Representatives or their legal counsel; (E) issue Shares to one or more counterparties in connection with the consummation
of a strategic partnership, joint venture, collaboration, merger, co-promotion or distribution arrangement, or the acquisition, in-licensing
or out-licensing of any business products or technologies; provided, that (x) the aggregate number of shares issued pursuant to
this clause (E) shall not exceed 5.0% of the total number of outstanding shares of Common Stock immediately following the issuance
and sale of the Offered Securities pursuant hereto and (y) prior to such issuance, each recipient of such Shares under this clause
(E) shall execute and deliver to the Representatives a Lock-up Agreement substantially in the form of
Exhibit A
hereto;
(F) file a new registration statement on Form S-3 and/or prospectus or prospectus supplement for an “at-the-market”
offering; provided that none of the Company’s securities are issued or sold pursuant to such registration statement and/or prospectus
or prospectus supplement during the Lock-up Period; and (G) facilitate the establishment of a trading plan on behalf of a shareholder,
officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Shares, provided that (x) such
plan does not provide for the transfer of Shares during the Lock-up Period, (y) to the extent a public announcement or filing under
the Exchange Act, if any, is required of the Company regarding the establishment of such plan, such announcement or filing shall include
a statement to the effect that no transfer of Shares may be made under such plan during the Lock-up Period, and (z) the Company
does not otherwise voluntarily effect any public filing or report regarding the establishment of such plan during the Lock-up Period.
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.
26
(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, and c/o Guggenheim Securities, at 330
Madison Avenue, New York, New York 10017, Attention: Head of Equity Capital Markets: (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.
(q)
Investment
Limitation
.
The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Offered Securities
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
would reasonably be expected to 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 Securities or otherwise, and the Company will, and
will use its reasonable best efforts to 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 executive officers and directors pursuant to Section 6(i) hereof.
27
(t)
Company
to Provide Interim Financial Statements
.
Prior to the 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 satisfied to the extent that such financial statements
are available on EDGAR.
(u)
Announcement
Regarding Lock-ups
.
The Company agrees to announce the Representatives’ intention to release any director or “officer”
(within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the restrictions imposed by any Lock-Up
Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to the Representatives or, if
consented to by the Representatives, in a registration statement that is publicly filed in connection with a secondary offering of the
Company’s shares promptly following the Company’s receipt of any notification from the Representatives in which such intention
is indicated, but in any case not later than the close of the third business day prior to the date on which such release or waiver is
to become effective; provided, however, that nothing shall prevent the Representatives, on behalf of the Underwriters, from announcing
the same through a major news service, irrespective of whether the Company has made the required announcement; and
provided
,
further
,
that no such announcement shall be made of any release or waiver granted solely to permit a transfer of securities that is not for consideration
and where the transferee has agreed in writing to be bound by the terms of a Lock-Up Agreement in the form set forth as
Exhibit A
hereto.
The Representatives, on behalf
of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the
foregoing covenants or extend the time for their performance.
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 Securities (including all printing and engraving costs), (ii) all fees and expenses of
the registrar and transfer agent of the Shares, if any, the warrant agent for the Pre-Funded Warrants, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the Offered Securities 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, reasonable and documented attorneys’ fees
and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Offered Securities for offer and sale under the state securities or blue sky
laws, 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 Securities, including any related
filing fees and the reasonable and documented 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 $25,000 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, (ix) the fees and expenses associated with listing the Offered
Securities 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, stock transfer taxes payable on resale of any of
the Offered Securities by them and any advertising expenses connected with any offers they may make and lodging expenses incurred by
them in connection with any road show, as applicable.
28
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 Securities as provided herein on the 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 Closing Date as though then made and
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 Ernst & Young LLP, independent registered public
accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance reasonably 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.
29
(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 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; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information
previously omitted from the Registration Statement pursuant to such Rule 430B, and such post-effective amendment shall have become
effective.
(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.
(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 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 the Closing Date the Representatives shall have received the opinion and negative assurance letter
of Ropes & Gray 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 the Closing Date the Representatives shall have received the opinion of
Goodwin Procter LLP, counsel for the Company with respect to 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 the Closing Date the Representatives shall have received the opinion and negative assurance
letter of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters in connection with the offer and sale of
the Offered Securities, in form and substance satisfactory to the Underwriters, dated as of such date.
(g)
Officers’
Certificate
.
On the 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;
30
(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 the Closing Date the Representatives shall have received from Ernst & Young LLP, independent registered
public accountants for the Company, a letter dated such date, in form and substance reasonably 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 Closing Date; and
(ii) cover certain financial information contained in the Prospectus.
(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 the Closing Date.
(j)
Pre-Funded
Warrants
. At least one (1) full business day prior to the Closing Date, the Representatives shall have received electronic
copies of the Pre-Funded Warrants, substantially in the form of Exhibit C, executed by the Company.
(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)
CFO
Certificate
. On the date of this Agreement and on the Closing Date, 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.
(m)
Additional
Documents
. On or before the 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
Securities 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 Securities as contemplated herein and in connection with the other transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
31
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 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 Securities on the 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 Securities,
including, but not limited to, 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 Securities.
Section 8.
Effectiveness
of this Agreement
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
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 Securities 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 (as defined below) 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 therein, 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 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 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. “
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
Securities, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically).
32
(b)
Indemnification
of the Company and 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 the first and second sentences of
the third paragraph, the first sentence of the fourth paragraph, the first three sentences under the first paragraph under the section
entitled “Commission and Expenses,” the first and third sentences under the first paragraph of the section entitled “Stabilization,”
the first, second and fourth sentences of the second paragraph of the section entitled “Stabilization,” the third paragraph
under the section entitled “Stabilization,” the first, second and fifth sentences of the fourth paragraph under the section
entitled “Stabilization,” and the sixth paragraph under the section entitled “Stabilization,” each under the
caption “Underwriting” 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.
33
(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 upon the 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.
34
(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 Securities 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 Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total proceeds from the offering of the Offered Securities
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
offering price of the Offered Securities 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.
35
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.
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 Securities underwritten by it and distributed to investors.
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 Closing Date any one or more of the several Underwriters shall fail
or refuse to purchase Offered Securities that it or they have agreed to purchase hereunder on such date, and the aggregate number of
Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of
the aggregate number of the Offered Securities to be purchased on such date, the Representatives may make arrangements satisfactory to
the Company for the purchase of such Offered Securities 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 Shares
and Pre-Funded Warrants set forth opposite their respective names on
Schedule A
bears to the aggregate number of Shares and Pre-Funded
Warrants 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 Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities and the aggregate number of Offered Securities with respect to which such default occurs
exceeds 10% of the aggregate number of Offered Securities to be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such Offered Securities 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 Closing Date, 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.
36
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 Shares by the Underwriters on the 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 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 federal, New York, or Massachusetts 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 Securities 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 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 Securities
pursuant to this Agreement, including the determination of the offering price of the Offered Securities 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, (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, its stockholders, or its 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, and (e) the Underwriters
have not provided any legal, accounting, regulatory 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.
37
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 Securities 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
Facsimile: [***]
Attention: General Counsel
Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
Attention: General Counsel
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Attention: William C. Hicks, John T. Rudy & Nishant M.
Dharia
If to the Company:
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
Attention: Dan Calkins
with a copy to:
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, Massachusetts 02199
Attention: Thomas Danielski
38
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 Securities as such from any of the
Underwriters merely by reason of such purchase.
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 (as defined below) of such Underwriter becomes subject
to a proceeding under a U.S. Special Resolution Regime (as defined below), 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.
39
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 (“
Related Proceedings
”) 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 (a “
Related Judgment
”), 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.
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 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. 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.
[Signature page follows]
40
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,
VERASTEM, INC.
By:
/s/
Daniel W. Paterson
Name: Daniel W. Paterson
Title: President and Chief Executive 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
GUGGENHEIM SECURITIES, LLC
Acting individually and as Representatives
of the several Underwriters named in
the attached
Schedule A
.
JEFFERIES LLC
By:
/s/
Gautham Baliga
Name: Gautham Baliga
Title: Managing Director
GUGGENHEIM SECURITIES, LLC
By:
/s/ Shiv Taylor, M.D.
Name: Shiv Taylor, M.D.
Title: Managing Director
41
Schedule A
Underwriters
Number of
Shares
to be
Purchased
Number of
Pre-Funded
Warrants
to be Purchased
Jefferies LLC
12,375,000
125,002
Guggenheim Securities, LLC
9,281,250
93,751
Cantor Fitzgerald & Co.
8,043,750
81,250
B. Riley Securities, Inc.
1,237,500
12,500
Total
30,937,500
312,503
Schedule B-1
Pricing Terms
1. The Company is selling 30,937,500 Shares.
2. The offering price per share for the Shares shall be $8.00.
3. The Company is selling Pre-Funded Warrants to purchase up to 312,503
shares of Common Stock.
4. The offering price per Pre-Funded Warrant shall be $7.9999.
Schedule B-2
Free Writing Prospectuses Included in the
Time of Sale Prospectus
None.
Schedule C
Significant Subsidiaries
Verastem Europe GmbH
Verastem Securities Company
Exhibit A
Form of Lock-up Agreement
[Date], 2026
Jefferies LLC
Guggenheim Securities, LLC
As Representatives of the Several Underwriters
c/o Jefferies
LLC
520 Madison Avenue
New York, New York 10022
and
c/o Guggenheim Securities, LLC
330 Madison Avenue
New York, NY 10017
RE:
Verastem, 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 Related Securities.
The Company proposes to conduct an underwritten offering of Shares and/or pre-funded warrants to purchase Shares (the “
Offering
”)
for which Jefferies
LLC and Guggenheim Securities, LLC will act as the representatives of the underwriters (the “
Representatives
”).
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 agreement. Those definitions are a part of this agreement.
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 will cause any Family Member not to), without the prior written consent of the Representatives, 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,
A-
1
·
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 for the filing of any resale registration statement
which the Company may be contractually obligated to file pursuant to agreements in effect
on the date hereof and incorporated by reference in the Registration Statement, as such term
is defined in the Underwriting Agreement), or
·
publicly
announce any intention to do any of the foregoing.
The foregoing restrictions will not apply to the registration of the
offer and sale of the Shares, and the sale of the Shares 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
acquired in the Offering or in open market transactions after the completion of the Offering;
provided that no filing under Section 16(a) of the Exchange Act shall be required
or shall be voluntarily made in connection with subsequent sales of Shares or Related Securities
acquired in such transactions (other than as otherwise permitted pursuant to the other provisions
of this letter agreement);
b)
the transfer of Shares or Related Securities
to the Company pursuant to a “net” or “cashless” exercise by the
undersigned of outstanding equity awards pursuant to an employee benefit plan of the Company
as in effect and disclosed in the final prospectus used for the Offering, including to satisfy
the exercise price or withholding tax or remittance obligations; provided that (i) any
Shares received upon such exercise shall be subject to all of the restrictions set forth
in this letter agreement and (ii) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of Shares, shall be required or shall
be voluntarily made during the Lock-up Period, unless such filing indicates in the footnotes
thereto that the filing relates to the exercise of equity awards, that no shares were sold
to the public by the reporting person and the Shares received upon exercise of such securities
are subject to a lock-up agreement with the Representatives;
c)
the exercise of Related Securities pursuant
to an employee benefit plan disclosed in the final prospectus used for the Offering;
provided that (i) any Shares received upon such exercise shall be subject to all of
the restrictions set forth in this letter agreement and (ii) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required
or shall be voluntarily made during the Lock-up Period, unless such filing shall indicate
in the footnotes thereto that such filing relates to the exercise of options, stock appreciation
rights or warrants to purchase Shares and the Shares received upon exercise of such securities
are subject to a lock-up agreement with the Representatives;
d)
transfers of Shares or Related Securities
as a bona fide gift; provided that (i) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required
or shall be voluntarily made during the Lock-up Period, unless such filing indicates in the
footnotes thereto that such transfer was made in connection with a bona fide gift and the
Shares or Related Securities, as applicable, received pursuant to the bona fide gift are
subject to a lock-up agreement with the Representatives, and (ii) each donee, distributee
or transferee shall sign and deliver a lock-up letter substantially in the form of this letter
agreement;
A-
2
e)
distributions of Shares or Related Securities
to partners, limited partners, members, managers, affiliates (within the meaning set forth
in Rule 405 under the Securities Act and including the subsidiaries of the undersigned),
stockholders or holders of similar equity interests of the undersigned or to any investment
fund or other entity that directly or indirectly controls or manages, is under common control
with, or is controlled or managed by, the undersigned or affiliates of the undersigned (including,
for the avoidance of doubt, where the undersigned is a partnership, to its general partner
or a successor partnership or fund, or any other funds controlled or managed by such partnership)
(including upon the liquidation or dissolution of the undersigned pursuant to a plan of liquidation
approved by the undersigned’s equity holders) or in the case of a trust, to a grantor
or beneficiary of the trust, and such transfer does not involve a disposition for value;
provided that (i) each donee, distributee or transferee shall sign and deliver a lock-up
letter substantially in the form of this letter agreement, and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of Shares, shall be required or shall be voluntarily made during the Lock-up Period, unless
such filing indicates in the footnotes thereto that such transfer is a distribution to limited
partners, members, stockholders or holders of similar equity interests, that no Shares or
Related Securities, as applicable, were sold to the public by the reporting person and the
Shares or Related Securities, as applicable, distributed are subject to a lock-up agreement
with the Representatives;
f)
transfers of Shares, (i) to any
Immediate Family Member, trusts for the direct or indirect benefit of the undersigned or
the Immediate Family Members of the undersigned or any of their successors upon death, or
any partnership or limited liability company, the partners or members of which consist of
the undersigned and/or immediate family members or other dependents of the undersigned, and
in each case such transfer does not involve a disposition for value, or (ii) to a nominee
or custodian of a person or entity to whom disposition or transfer would be permitted under
clause (f)(i) above; provided that in the case of any transfer pursuant to this clause
(f), (i) each donee, distributee or transferee shall sign and deliver a lock-up letter
substantially in the form of this letter agreement, and (ii) no filing by any party
(donor, donee, transferor or transferee) under the Exchange Act (other than any required
filing on a Form 5 made after the expiration of the Lock-up Period or, if a Form 5
filing is required to be made prior to the expiration of the Lock-up Period, such Form 5
filing is made on the latest date permitted under the Exchange Act) or other public announcement
reporting a reduction in beneficial ownership of Shares shall be required or shall be made
voluntarily in connection with such transfer or distribution;
g)
transfers of Shares or Related Securities
by will or intestacy or pursuant to a domestic order divorce settlement, divorce decree or
separation agreement; provided that in the case of any transfer pursuant to (g), unless
prohibited by an order of a court, (i) each donee or distributee shall sign and deliver
a lock-up letter substantially in the form of this letter, and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of Shares, shall be required or shall be voluntarily made during the Lock-up Period, unless
such filing indicates in the footnotes thereto the nature of the transfer or disposition;
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h)
transfers or dispositions of Shares or
Related Securities to the Company (i) pursuant to any contractual arrangement in effect
on the date of this agreement and described in the final prospectus used for the Offering
that provides for the repurchase of the undersigned’s Shares or Related Securities
by the Company or (ii) in connection with the termination of the undersigned’s
employment with or service to the Company; provided that in each case no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of Shares, shall be required or shall be voluntarily made during the Lock-up Period, unless
such filing indicates in the footnotes thereto the nature of the transfer or disposition;
i)
the establishment of a trading plan pursuant
to Rule 10b5-1 under the Exchange Act (a “Rule 10b5-1 Trading Plan”)
for the transfer of Shares, provided that (x) such plan does not provide for the transfer
of Shares during the Lock-up Period, (y) no public announcement or filing under the
Exchange Act shall be voluntarily made by or on behalf of the undersigned or the Company
during the Lock-up Period regarding the establishment of such plan, and (z); to the
extent a public announcement or filing under the Exchange Act, if any, is required by or
on behalf of the undersigned or the Company regarding the establishment of a Rule 10b5-1
Trading Plan during the Lock-up Period, such announcement or filing shall include a statement
to the effect that no transfer of Shares may be made under such Rule 10b5-1 Trading
Plan during the Lock-up Period;
j)
(i) the transfer of Shares or Related
Securities pursuant to a bona fide third party tender offer, merger, consolidation or other
similar transaction made to all holders of Shares and approved by the Company’s board
of directors involving a Change of Control and (ii) entry into any lock-up, voting or
similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or
otherwise dispose of Shares or such Related Securities in connection with a transaction described
in (i) above, provided, that in the event that the tender offer, merger, consolidation
or other such transaction is not completed, the undersigned’s Shares or Related Securities
shall remain subject to the terms of this letter agreement;
k)
transfers pursuant to an order of a court
or regulatory agency; provided that in the case of any transfer pursuant to (k), (i) unless
prohibited by an order of a court or regulatory agency, the undersigned must request that
each transferee sign and deliver a lock-up letter substantially in the form of this letter
and (ii) any filing under Section 16(a) of the Exchange Act reporting a reduction
in beneficial ownership of Shares required to be made during the Lock-up Period shall state
that such transfer is pursuant to an order of a court or regulatory agency;
l)
transfers to the Company for the purpose
of satisfying any tax or other governmental withholding obligation with respect to, or in
connection with, a vesting event of the Company’s securities, upon the exercise of
the Company’s securities or upon expiration of the Company’s securities, in each
case held by the undersigned; provided that no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of Shares, shall be required
or shall be voluntarily made during the Lock-up Period, unless such filing indicates in the
footnotes thereto that the shares were transferred to the Company in order to satisfy tax
or other governmental withholding obligations of the reporting person and that no shares
were sold to the public by the reporting person;
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m)
sales of Shares for the purpose of satisfying
any tax or other governmental withholding obligation with respect to, or in connection with,
a vesting event of the Company’s securities, upon the exercise of the Company’s
securities or upon expiration of the Company’s securities, in each case held by the
undersigned; provided that no filing under Section 16(a) of the Exchange Act,
reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily
made during the Lock-up Period, unless such filing indicates in the footnotes thereto that
the shares were sold in order to satisfy tax or other governmental withholding obligations
of the reporting person; or
n)
in connection with sales of Shares made
pursuant to a Rule 10b5-1 Trading Plan that has been entered into by the undersigned
prior to the date of this letter agreement; provided that (i) such Rule 10b5-1
Trading Plan was established by the undersigned prior to the execution of this letter agreement,
a copy of such Rule 10b5-1 Trading Plan was provided to the Representatives prior to
the execution of this letter agreement, (ii) such Rule 10b5-1 Trading Plan will
not be amended or otherwise modified during the Lock-up Period, and (iii) no filing
under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of Shares, shall be required or shall be voluntarily made during the Lock-up Period, unless
such filing indicates in the footnotes thereto that the shares were sold pursuant to such
Rule 10b5-1 Trading Plan.
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.
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, and will 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.
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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. The undersigned understands that if (1) the
Company withdraws the registration statement relating to the Offering, (2) the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder,
(3) the Representatives, on behalf of the underwriters, advise the Company, or the Company advises the Representatives, in writing,
prior to the execution of the Underwriting Agreement, that they have determined not to proceed with the Offering or (4) the closing
of the Offering shall not have occurred on or before October 30, 2026, the undersigned shall be 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 shall be governed by, and
construed in accordance with, the laws of the State of New York.
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Signature
Printed Name of Person Signing
(Indicate capacity of person signing if
signing as custodian or trustee, or on behalf of an entity)
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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.
·
“
Change
of Control
” means any bona fide third party tender offer, merger, consolidation
or other similar transaction, in one transaction or a series of related transactions, the
result of which is that any “person” (as defined in Section 13(d)(3) of
the Exchange Act) or group of persons, other than the Company, becomes the beneficial owner
(as defined Rule 13d-3 and 13d-5 of the Exchange Act) of more than 50% of total voting
power of the voting stock of the Company (or the surviving entity).
·
“
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
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8
–
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.
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Exhibit B
Directors and Executive Officers
Signing
Lock-up Agreement
·
Paul Bunn
·
Daniel Calkins
·
Anil Kapur
·
Michael Kauffman
·
John Johnson
·
Daniel Paterson
·
Michelle Robertson
·
Eric Rowinsky
·
Brian Stuglik
·
Karin Tollefson
·
Michael P. Bailey
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1
Exhibit C
PRE-FUNDED WARRANT TO PURCHASE STOCK
Company:
Verastem, Inc.,
a Delaware corporation
Warrant No.
[___]
Number of Shares:
[___],
subject to adjustment
Type/Series of Stock:
Common Stock, $0.0001 par value per share
Issue Date:
[●],
2026
THIS
WARRANT CERTIFIES THAT, for good and valuable consideration,
[___] (together with any successor or permitted assignee or transferee
of this warrant to purchase stock (this “
Warrant
”) or of any shares issued upon exercise hereof, “
Holder
”)
is entitled, at any time on or after the above-referenced Issue Date, to purchase up to the above-stated number of fully paid and non-assessable
shares (the “
Shares
”) of the above-stated Type/Series of Stock (the “
Class
”)
of the above-named company (the “
Company
”) until this Warrant is exercised in full, all as set forth above
and as adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in
this Warrant. The aggregate exercise price of this Warrant of $[___], except for a nominal exercise price of $0.0001 per Warrant Share
(as defined below), was paid to the Company on or prior to the date of issuance of this Warrant, and consequently, no additional consideration
(other than the nominal exercise price of $0.0001 per Warrant Share) shall be required to be paid by Holder to effect any exercise of
this Warrant. Holder shall not be entitled to return or refund of all, or any portion, of such prepaid aggregate exercise price under
any circumstance or for any reason whatsoever. The remaining unpaid exercise price per share of Common Stock under this Warrant shall
be $0.0001, subject to adjustment as provided herein (the “
Warrant Price
” or “
Exercise Price
”).
SECTION 1.
EXERCISE
.
1.1
Method
of Exercise; Delivery of Warrant Shares
. Holder may at any time and from time to time exercise this Warrant, in whole or in part,
by delivering to the Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form
attached hereto as
Appendix 1
and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2,
wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the
aggregate Warrant Price for the Shares being purchased (such date of delivery, the “
Exercise Date
”). Notwithstanding
any contrary provision herein, if this Warrant was originally executed and/or delivered electronically, in no event shall Holder be required
to surrender or deliver an ink-signed paper copy of this Warrant in connection with its exercise hereof or of any rights hereunder, nor
shall Holder be required to surrender or deliver a paper or other physical copy of this Warrant in connection with any exercise hereof.
Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a new
warrant evidencing the right to purchase the remaining number of Warrant Shares (any such new warrant, a “
New Warrant
”),
which New Warrant shall in all other respects be identical with this Warrant. The Company shall cause the shares underlying the Warrant
(the “
Warrant Shares
”) purchased hereunder to be transmitted by the Transfer Agent to the Holder by the date
that is one (1) Trading Day after the delivery to the Company of the Notice of Exercise (such date, the “
Warrant Share
Delivery Date
”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within one (1) Trading Day following delivery of the Notice of Exercise.
“
Trading Day
”
means a day on which the Common Stock is traded on a Trading Market.
“
Transfer Agent
”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity, or if none, the Company.
1.2
Cashless
Exercise
. On any exercise of this Warrant, in lieu of payment of the aggregate Warrant Price in the manner as specified in Section 1.1
above, but otherwise in accordance with the requirements of Section 1.1, Holder may elect to receive Shares equal to the value of
this Warrant, or portion hereof as to which this Warrant is being exercised. Thereupon, the Company shall issue to the Holder such number
of fully paid and non-assessable Shares as are computed using the following formula:
X = Y(A-B)/A
where:
X =
the number of Shares to be issued to the Holder;
Y =
the number of Shares with respect to which
this Warrant is being exercised (inclusive of the Shares surrendered to the Company in payment
of the aggregate Warrant Price);
A =
the
fair market value (as
determined pursuant to Section 1.3 below) of one Share;
and
B =
the Warrant Price.
1.3
Fair
Market Value
. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “
Trading Market
”), the fair market value of a Share shall be
the closing price or last sale price of a share of the Class reported for the Business Day (as defined below) immediately before
the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not
then traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable
good faith judgment.
2
1.4
Delivery
of New Warrant
. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1 or 1.2 above,
if this Warrant has not been fully exercised and has not expired, the Company shall deliver to Holder a New Warrant of like tenor representing
the Shares not so acquired, which may be delivered electronically.
1.5
Replacement
of Warrant
. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and
amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall,
within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
1.6
Treatment
of Warrant Upon Acquisition of Company
.
(a)
Acquisition
.
For the purpose of this Warrant, “
Acquisition
” means any transaction or series of related transactions involving:
(i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any
merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively
to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity
as such immediately prior to such merger, consolidation or reorganization, own less than fifty percent (50%) of the Company’s (or
the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization (or,
if such Company stockholders beneficially own greater than fifty percent (50%) of the outstanding voting power of the surviving or successor
entity as of immediately after such merger, consolidation or reorganization, such surviving or successor entity is not the Company);
or (iii) any sale or other transfer by the stockholders of the Company of shares representing greater than fifty percent (50%) of
the Company’s then-total outstanding combined voting power.
(b)
Treatment
of Warrant at Acquisition
. In the event of an Acquisition and if Holder has not exercised this Warrant pursuant to Section 1
above as to all Shares, then, following such Acquisition, the Holder shall receive upon exercise hereof the kind and amount of securities,
cash or other property which the Holder would have been entitled to receive (the “
Alternate Consideration
”)
pursuant to such Acquisition if such exercise had taken place immediately prior to such Acquisition. In any such case, appropriate adjustment
(as reasonably determined in good faith by the Board of Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the Holder, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Warrant. The Company shall
not effect any Acquisition in which the Company is not the surviving entity or the Alternate Consideration includes securities of another
entity unless any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall
assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder
may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply
to subsequent transactions analogous to an Acquisition.
3
1.7
Limitations
on Exercise
.
Notwithstanding anything to the contrary herein,
the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant, for a number
of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to such exercise, would cause
(i) the aggregate number of shares of Common Stock beneficially owned by the Holder, its Affiliates and any Persons who are members
of a Section 13(d) group with such Holder or its Affiliates to exceed [[9.99%]//[4.99%]] (the “
Maximum Percentage
”)
of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined
voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members
of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of
all of the securities of the Company then outstanding following such exercise. For purposes of this paragraph, beneficial ownership and
whether a Holder is a member of a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules promulgated thereunder.
For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding
shares of Common Stock as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on
Form 10-K, as the case may be, filed with the Commission prior to the date hereof, (y) a more recent public announcement by
the Company or (z) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written request of the Holder, the Company shall within one (1) Trading Day confirm in writing or by electronic mail to
the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder since
the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may
from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice;
provided that any such increase will not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
For purposes of this Section 1.7, the aggregate number of shares of Common Stock or voting securities beneficially owned by the
Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates
shall include the shares of Common Stock issuable upon: (x) the exercise of this Warrant with respect to which such determination
is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking into account the limitations on exercise
contained herein, but shall exclude the number of shares of Common Stock which would otherwise be issuable upon exercise of the remaining
unexercised and non-cancelled portion of this Warrant but for the limitations on exercise contained herein; and (y) the exercise
or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company beneficially owned by
the Holder or any of its Affiliates and other Persons who are members of a Section 13(d) group with such Holder or its Affiliates
that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire
at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock),
but shall exclude any such securities subject to any further limitation on conversion or exercise analogous to the limitation contained
herein. This Section 1.7 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own
in order to determine the amount of securities or other consideration that such Holder may receive in the event of an Acquisition as
contemplated in Section 1.6 of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms
of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including
for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange
Act Rule 16a-1(a)(1) promulgated thereunder. No prior inability to exercise this Warrant pursuant to this paragraph shall have
any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The
provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this
Section 1.7 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent
with the intended beneficial ownership limitation contained in this Section 1.7 or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor
holder of this Warrant.
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SECTION 2.
ADJUSTMENTS TO THE SHARES AND
WARRANT PRICE
.
2.1
Stock
Dividends, Splits, Etc
. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class or other securities or property (other than cash), then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder
would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides
the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares of the
Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be proportionately decreased.
2.2
Reclassification,
Exchange, Combinations or Substitution
. Upon any event whereby all of the outstanding shares of the Class are reclassified,
exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from
and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that
Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment
thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly
apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
2.3
Adjustment
for Cash Distributions
.
(a)
If
the Company, prior to the exercise in whole or expiration of this Warrant, pays a cash distribution to all holders of its Common Stock,
then the number of Warrant Shares issuable upon the exercise of this Warrant shall be adjusted in accordance with the formula:
5
where:
W’ = the adjusted number of Warrant
Shares issuable upon exercise of the Warrant;
W = the number of Warrant
Shares then issuable upon exercise of the Warrant;
M = the
fair market value (as determined pursuant to Section 1.3) per Share on the applicable record date; and
F = the amount of cash or fair market
value on the record date of the evidences of its indebtedness, assets, rights, warrants or other securities to be distributed in respect
of one Share as determined in good faith by the Board of Directors of the Company.
(b)
The
adjustment pursuant to this Section 2.3 shall be made successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of holders entitled to receive the distribution.
2.4
No
Fractional Share
. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall
be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest by (i) the
fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective Warrant
Price.
2.5
Notice/Certificate
as to Adjustments
. Upon each adjustment of the Warrant Price, Class and/or number of Shares, the Company, at the Company’s
expense, shall notify Holder in writing within a reasonable time setting forth the adjustments to the Warrant Price, Class and/or
number of Shares and facts upon which such adjustment is based. The Company shall, upon written request from Holder, furnish Holder with
a certificate of its Chief Financial Officer, including computations of such adjustment and the Warrant Price, Class and number
of Shares in effect upon the date of such adjustment.
2.6
Purchase
Rights
. If at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of Common Stock (the “
Purchase Rights
”),
then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder
could have acquired if Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that to the extent that Holder’s right to participate in any such Purchase Right would result in Holder, its
Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding the Maximum
Percentage then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase
Right to such extent shall be held in abeyance for the benefit of Holder until such time or times as its right thereto would not result
in Holder, its Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding
the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold
on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been
no such limitation).
6
2.7
Registration
Under the Securities Act
. This Warrant, as initially issued by the Company, is offered and sold pursuant to the Registration Statement
(as defined below). As of the Issue Date, the Warrant Shares are issuable under the Registration Statement. Accordingly, the Warrant
and, assuming issuance pursuant to the Registration Statement or an exchange meeting the requirements of Section 3(a)(9) of
the Exchange Act as in effect on the Issue Date, the Warrant Shares, are not “restricted securities” under Rule 144
promulgated under the Securities Act of 1933, as amended.
“
Registration Statement
”
means the Company’s registration statement on Form S-3 (File No. 333-289399), which was declared effective by the Securities
and Exchange Commission on August 15, 2025.
2.8
No
Voting Rights
. Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant.
SECTION 3.
REPRESENTATIONS AND COVENANTS
OF THE COMPANY
.
3.1
Representations
and Warranties
. The Company represents and warrants to, and agrees with, the Holder as follows:
(a)
All
Shares which may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized
and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise
in full of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed.
3.2
Notice
of Certain Events
. If the Company proposes at any time to:
(a) declare any dividend
or distribution upon the outstanding shares of the Class, whether in cash, property, stock, or other securities and whether or not a
regular cash dividend;
(b) offer for subscription
or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series of the Company’s
stock (other than pursuant to contractual pre-emptive rights);
(c) effect any reclassification,
exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class; or
(d) effect an Acquisition
or to liquidate, dissolve or wind up;
then, in connection with each such event, the
Company shall give Holder notice thereof at the same time and in the same manner as it gives notice thereof to holders of the outstanding
shares of the Class.
The Company will also provide information requested
by Holder from time to time, within a reasonable time following each such request, that is reasonably necessary to enable Holder to comply
with Holder’s accounting or reporting requirements.
7
SECTION 4.
MISCELLANEOUS
.
4.1
Term
.
(a)
Term
.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time.
(
b)
Reserved.
4.2
Compliance
with Securities Laws on Transfer
. Subject to compliance with all applicable securities laws, the Company shall, or will cause its
Transfer Agent to, record the transfer of all or any portion of this Warrant in its or their records, upon surrender of this Warrant,
and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a New Warrant to purchase Common Stock
in substantially the form of this Warrant evidencing the portion of this Warrant so transferred shall be issued to the transferee, and
a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and
obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer
Agent to, prepare, issue, and deliver at the Company’s own expense any New Warrant under this Section 4.2. Until due presentment
for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder of this Warrant for all purposes
and the Company shall not be affected by any notice to the contrary.
4.3
Notices
.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3
rd
) Business Day after being mailed by first-class registered or
certified mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed
in writing by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier
fee prepaid, in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company
or such Holder from time to time in accordance with the provisions of this Section 4.3. All notices to Holder shall be addressed
as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:
[___]
Attn: [____]
[Address]
Telephone: [____]
Email address: [____]
Notice to the Company shall be addressed as follows
until Holder receives notice of a change in address:
Verastem, Inc.
Attn: Chief Financial Officer
117 Kendrick Street, Suite 500
Needham, MA 02494
8
Telephone: [***]
Email:
[***]
With a copy (which shall not constitute
notice) to:
Ropes & Gray LLP
Attn: Thomas J. Danielski
Prudential Tower
800 Boylston Street
Boston, MA 02199
Telephone: [***]
Email:
[***]
4.4
Amendment
and Waiver
. This Warrant and any term hereof may be amended or otherwise changed, waived, discharged or terminated (either generally
or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which
enforcement of such amendment or other change, waiver, discharge or termination is sought.
4.5
Attorneys’
Fees
. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.
4.6
Counterparts;
Facsimile/Electronic Signatures
. This Warrant may be executed by one or more of the parties hereto in any number of separate counterparts,
all of which together shall constitute one and the same instrument. The Company, Holder and any other party hereto may execute this Warrant
by electronic means and each party hereto recognizes and accepts the use of electronic signatures and the keeping of records in electronic
form by any other party hereto in connection with the execution and storage hereof. To the extent that this Warrant or any agreement
subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically, it shall be binding to the same
extent as though it had been executed on paper with an original ink signature, as provided under applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed, signed, stored or delivered electronically
shall not prevent the transfer by any Holder of this Warrant pursuant to, or the enforcement of, the terms hereof.
4.7
Headings
.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision
of this Warrant.
4.8
Business
Days
. “
Business Day
” is any day that is not a Saturday, Sunday or a day on which the Nasdaq Capital Market
and commercial banks in the City of New York are closed.
9
SECTION 5.
GOVERNING LAW, VENUE, JURY
TRIAL WAIVER, AND JUDICIAL REFERENCE
.
5.1
Governing
Law
. This Warrant shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
5.2
Jurisdiction
and Venue
. The Company and Holder each submit to the exclusive jurisdiction of the state and federal courts in the State of New York;
provided, however, that nothing in this Warrant shall be deemed to operate to preclude Holder from bringing suit or taking other legal
action in any other jurisdiction to enforce a judgment or other court order in favor of Holder. The Company expressly submits and consents
in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby waives any objection that it
may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such
legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints,
and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made in
accordance with Section 4.3 of this Warrant.
5.3
Jury
Trial Waiver
.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND HOLDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS WARRANT, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES’ AGREEMENT TO THIS WARRANT. EACH PARTY HAS REVIEWED THIS WAIVER WITH
ITS COUNSEL
.
5.4
Survival
.
This Section 5 shall survive the termination of this Warrant.
[Remainder of page left blank intentionally]
[Signature page follows]
10
IN WITNESS WHEREOF, the parties have caused this
Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
“COMPANY”
VERASTEM, INC.
By:
Name:
Daniel Paterson
Title:
President and Chief Executive Officer
[Signature Page to the
Pre-Funded Warrant]
APPENDIX 1
FORM OF NOTICE OF EXERCISE
1.
The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Verastem, Inc. (the “
Company
”)
in accordance with the attached Pre-Funded Warrant To Purchase Stock (the “
Warrant
”), and tenders payment of
the aggregate Warrant Price for such shares as follows:
[    ]                 Wire transfer of immediately available
funds to the Company’s account
[    ]                 Cashless Exercise pursuant to Section 1.2
of the Warrant
[    ]                 Other [Describe] __________________________________________
2.
Please
deliver to the Holder Shares in accordance with the terms of the Warrant. The Warrant Shares shall be delivered to the following DWAC
Account Number:________________.
3. By its delivery of this Exercise
Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder will
not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended) permitted to be owned under Section 1.7 of the Warrant to which this notice relates.
Capitalized terms used herein and not otherwise defined herein have
the respective meanings set forth in the Warrant.
HOLDER:
By:
Name:
Title:
(Date):
C-
1

----- tm2627537d6_ex4-1.htm -----
EX-4.1
3
tm2627537d6_ex4-1.htm
EXHIBIT 4.1
Exhibit 4.1
PRE-FUNDED WARRANT TO
PURCHASE STOCK
Company:
Verastem, Inc.,
a Delaware corporation
Warrant No.
[___]
Number of Shares:
[___],
subject to adjustment
Type/Series of Stock:
Common Stock, $0.0001 par value per share
Issue Date:
[●],
2026
THIS
WARRANT CERTIFIES THAT, for good and valuable consideration,
[___] (together with any successor or permitted assignee or transferee
of this warrant to purchase stock (this “
Warrant
”) or of any shares issued upon exercise hereof, “
Holder
”)
is entitled, at any time on or after the above-referenced Issue Date, to purchase up to the above-stated number of fully paid and non-assessable
shares (the “
Shares
”) of the above-stated Type/Series of Stock (the “
Class
”)
of the above-named company (the “
Company
”) until this Warrant is exercised in full, all as set forth above
and as adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in
this Warrant. The aggregate exercise price of this Warrant of $[___], except for a nominal exercise price of $0.0001 per Warrant Share
(as defined below), was paid to the Company on or prior to the date of issuance of this Warrant, and consequently, no additional consideration
(other than the nominal exercise price of $0.0001 per Warrant Share) shall be required to be paid by Holder to effect any exercise of
this Warrant. Holder shall not be entitled to return or refund of all, or any portion, of such prepaid aggregate exercise price under
any circumstance or for any reason whatsoever. The remaining unpaid exercise price per share of Common Stock under this Warrant shall
be $0.0001, subject to adjustment as provided herein (the “
Warrant Price
” or “
Exercise Price
”).
SECTION 1.
EXERCISE
.
1.1
Method
of Exercise; Delivery of Warrant Shares
. Holder may at any time and from time to time exercise this Warrant, in whole or in part,
by delivering to the Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form
attached hereto as
Appendix 1
and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2,
wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the
aggregate Warrant Price for the Shares being purchased (such date of delivery, the “
Exercise Date
”). Notwithstanding
any contrary provision herein, if this Warrant was originally executed and/or delivered electronically, in no event shall Holder be required
to surrender or deliver an ink-signed paper copy of this Warrant in connection with its exercise hereof or of any rights hereunder, nor
shall Holder be required to surrender or deliver a paper or other physical copy of this Warrant in connection with any exercise hereof.
Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a new
warrant evidencing the right to purchase the remaining number of Warrant Shares (any such new warrant, a “
New Warrant
”),
which New Warrant shall in all other respects be identical with this Warrant. The Company shall cause the shares underlying the Warrant
(the “
Warrant Shares
”) purchased hereunder to be transmitted by the Transfer Agent to the Holder by the date
that is one (1) Trading Day after the delivery to the Company of the Notice of Exercise (such date, the “
Warrant Share
Delivery Date
”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within one (1) Trading Day following delivery of the Notice of Exercise.
“
Trading Day
”
means a day on which the Common Stock is traded on a Trading Market.
“
Transfer Agent
”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity, or if none, the Company.
1.2
Cashless
Exercise
. On any exercise of this Warrant, in lieu of payment of the aggregate Warrant Price in the manner as specified in Section 1.1
above, but otherwise in accordance with the requirements of Section 1.1, Holder may elect to receive Shares equal to the value of
this Warrant, or portion hereof as to which this Warrant is being exercised. Thereupon, the Company shall issue to the Holder such number
of fully paid and non-assessable Shares as are computed using the following formula:
X = Y(A-B)/A
where:
X =
the number of Shares to be issued to the Holder;
Y =
the
number of Shares with respect to which this Warrant is being exercised (inclusive of the
Shares surrendered to the Company in payment of the aggregate Warrant Price);
A =
the
fair market value (as
determined pursuant to Section 1.3 below) of one Share;
and
B =
the Warrant Price.
1.3
Fair
Market Value
. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “
Trading Market
”), the fair market value of a Share shall be
the closing price or last sale price of a share of the Class reported for the Business Day (as defined below) immediately before
the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not
then traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable
good faith judgment.
2
1.4
Delivery
of New Warrant
. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1 or 1.2 above,
if this Warrant has not been fully exercised and has not expired, the Company shall deliver to Holder a New Warrant of like tenor representing
the Shares not so acquired, which may be delivered electronically.
1.5
Replacement
of Warrant
. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and
amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall,
within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
1.6
Treatment
of Warrant Upon Acquisition of Company
.
(a)
Acquisition
.
For the purpose of this Warrant, “
Acquisition
” means any transaction or series of related transactions involving:
(i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any
merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively
to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity
as such immediately prior to such merger, consolidation or reorganization, own less than fifty percent (50%) of the Company’s (or
the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization (or,
if such Company stockholders beneficially own greater than fifty percent (50%) of the outstanding voting power of the surviving or successor
entity as of immediately after such merger, consolidation or reorganization, such surviving or successor entity is not the Company);
or (iii) any sale or other transfer by the stockholders of the Company of shares representing greater than fifty percent (50%) of
the Company’s then-total outstanding combined voting power.
(b)
Treatment
of Warrant at Acquisition
. In the event of an Acquisition and if Holder has not exercised this Warrant pursuant to Section 1
above as to all Shares, then, following such Acquisition, the Holder shall receive upon exercise hereof the kind and amount of securities,
cash or other property which the Holder would have been entitled to receive (the “
Alternate Consideration
”)
pursuant to such Acquisition if such exercise had taken place immediately prior to such Acquisition. In any such case, appropriate adjustment
(as reasonably determined in good faith by the Board of Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the Holder, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Warrant. The Company shall
not effect any Acquisition in which the Company is not the surviving entity or the Alternate Consideration includes securities of another
entity unless any successor to the Company, surviving entity or other person (including any purchaser of assets of the Company) shall
assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder
may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply
to subsequent transactions analogous to an Acquisition.
3
1.7
Limitations
on Exercise
.
Notwithstanding anything to the contrary herein,
the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant, for a number
of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to such exercise, would cause
(i) the aggregate number of shares of Common Stock beneficially owned by the Holder, its Affiliates and any Persons who are members
of a Section 13(d) group with such Holder or its Affiliates to exceed [[9.99%]//[4.99%]] (the “
Maximum Percentage
”)
of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined
voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members
of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of
all of the securities of the Company then outstanding following such exercise. For purposes of this paragraph, beneficial ownership and
whether a Holder is a member of a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules promulgated thereunder.
For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding
shares of Common Stock as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on
Form 10-K, as the case may be, filed with the Commission prior to the date hereof, (y) a more recent public announcement by
the Company or (z) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written request of the Holder, the Company shall within one (1) Trading Day confirm in writing or by electronic mail to
the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder since
the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may
from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice;
provided that any such increase will not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
For purposes of this Section 1.7, the aggregate number of shares of Common Stock or voting securities beneficially owned by the
Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates
shall include the shares of Common Stock issuable upon: (x) the exercise of this Warrant with respect to which such determination
is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking into account the limitations on exercise
contained herein, but shall exclude the number of shares of Common Stock which would otherwise be issuable upon exercise of the remaining
unexercised and non-cancelled portion of this Warrant but for the limitations on exercise contained herein; and (y) the exercise
or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company beneficially owned by
the Holder or any of its Affiliates and other Persons who are members of a Section 13(d) group with such Holder or its Affiliates
that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire
at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock),
but shall exclude any such securities subject to any further limitation on conversion or exercise analogous to the limitation contained
herein. This Section 1.7 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own
in order to determine the amount of securities or other consideration that such Holder may receive in the event of an Acquisition as
contemplated in Section 1.6 of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms
of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including
for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange
Act Rule 16a-1(a)(1) promulgated thereunder. No prior inability to exercise this Warrant pursuant to this paragraph shall have
any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The
provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this
Section 1.7 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent
with the intended beneficial ownership limitation contained in this Section 1.7 or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor
holder of this Warrant.
4
SECTION 2.
ADJUSTMENTS TO THE SHARES AND
WARRANT PRICE
.
2.1
Stock
Dividends, Splits, Etc
. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class or other securities or property (other than cash), then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder
would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides
the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares of the
Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be proportionately decreased.
2.2
Reclassification,
Exchange, Combinations or Substitution
. Upon any event whereby all of the outstanding shares of the Class are reclassified,
exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from
and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that
Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment
thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly
apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
2.3
Adjustment
for Cash Distributions
.
(a)
If
the Company, prior to the exercise in whole or expiration of this Warrant, pays a cash distribution to all holders of its Common Stock,
then the number of Warrant Shares issuable upon the exercise of this Warrant shall be adjusted in accordance with the formula:
where:
W’ = the adjusted number of Warrant
Shares issuable upon exercise of the Warrant;
W = the number of Warrant
Shares then issuable upon exercise of the Warrant;
M = the
fair market value (as determined pursuant to Section 1.3) per Share on the applicable record date; and
F = the amount of cash or fair market
value on the record date of the evidences of its indebtedness, assets, rights, warrants or other securities to be distributed in respect
of one Share as determined in good faith by the Board of Directors of the Company.
5
(b)
The
adjustment pursuant to this Section 2.3 shall be made successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of holders entitled to receive the distribution.
2.4
No
Fractional Share
. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall
be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest by (i) the
fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective Warrant
Price.
2.5
Notice/Certificate
as to Adjustments
. Upon each adjustment of the Warrant Price, Class and/or number of Shares, the Company, at the Company’s
expense, shall notify Holder in writing within a reasonable time setting forth the adjustments to the Warrant Price, Class and/or
number of Shares and facts upon which such adjustment is based. The Company shall, upon written request from Holder, furnish Holder with
a certificate of its Chief Financial Officer, including computations of such adjustment and the Warrant Price, Class and number
of Shares in effect upon the date of such adjustment.
2.6
Purchase
Rights
. If at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of Common Stock (the “
Purchase Rights
”),
then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder
could have acquired if Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights
(provided, however, that to the extent that Holder’s right to participate in any such Purchase Right would result in Holder, its
Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding the Maximum
Percentage then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase
Right to such extent shall be held in abeyance for the benefit of Holder until such time or times as its right thereto would not result
in Holder, its Affiliates and any Persons who are members of a Section 13(d) group with such Holder or its Affiliates exceeding
the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold
on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been
no such limitation).
2.7
Registration
Under the Securities Act
. This Warrant, as initially issued by the Company, is offered and sold pursuant to the Registration Statement
(as defined below). As of the Issue Date, the Warrant Shares are issuable under the Registration Statement. Accordingly, the Warrant
and, assuming issuance pursuant to the Registration Statement or an exchange meeting the requirements of Section 3(a)(9) of
the Exchange Act as in effect on the Issue Date, the Warrant Shares, are not “restricted securities” under Rule 144
promulgated under the Securities Act of 1933, as amended.
6
“
Registration Statement
”
means the Company’s registration statement on Form S-3 (File No. 333-289399), which was declared effective by the Securities
and Exchange Commission on August 15, 2025.
2.8
No
Voting Rights
. Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant.
SECTION 3.
REPRESENTATIONS AND COVENANTS
OF THE COMPANY
.
3.1
Representations
and Warranties
. The Company represents and warrants to, and agrees with, the Holder as follows:
(a)
All
Shares which may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized
and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise
in full of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed.
3.2
Notice
of Certain Events
. If the Company proposes at any time to:
(a) declare any dividend
or distribution upon the outstanding shares of the Class, whether in cash, property, stock, or other securities and whether or not a
regular cash dividend;
(b) offer for subscription
or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series of the Company’s
stock (other than pursuant to contractual pre-emptive rights);
(c) effect any reclassification,
exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class; or
(d) effect an Acquisition
or to liquidate, dissolve or wind up;
then, in connection with each such event, the
Company shall give Holder notice thereof at the same time and in the same manner as it gives notice thereof to holders of the outstanding
shares of the Class.
The Company will also provide information requested
by Holder from time to time, within a reasonable time following each such request, that is reasonably necessary to enable Holder to comply
with Holder’s accounting or reporting requirements.
SECTION 4.
MISCELLANEOUS
.
4.1
Term
.
(a)
Term
.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time.
7
(
b)
Reserved.
4.2
Compliance
with Securities Laws on Transfer
. Subject to compliance with all applicable securities laws, the Company shall, or will cause its
Transfer Agent to, record the transfer of all or any portion of this Warrant in its or their records, upon surrender of this Warrant,
and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a New Warrant to purchase Common Stock
in substantially the form of this Warrant evidencing the portion of this Warrant so transferred shall be issued to the transferee, and
a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and
obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer
Agent to, prepare, issue, and deliver at the Company’s own expense any New Warrant under this Section 4.2. Until due presentment
for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder of this Warrant for all purposes
and the Company shall not be affected by any notice to the contrary.
4.3
Notices
.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3
rd
) Business Day after being mailed by first-class registered or
certified mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed
in writing by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier
fee prepaid, in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company
or such Holder from time to time in accordance with the provisions of this Section 4.3. All notices to Holder shall be addressed
as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:
[___]
Attn: [____]
[Address]
Telephone: [____]
Email address: [____]
Notice to the Company shall
be addressed as follows until Holder receives notice of a change in address:
Verastem, Inc.
Attn: Chief Financial Officer
117 Kendrick Street, Suite 500
Needham, MA 02494
Telephone: [***]
Email:
[***]
With a copy (which shall not constitute
notice) to:
Ropes & Gray LLP
Attn: Thomas J. Danielski
Prudential Tower
800 Boylston Street
Boston, MA 02199
Telephone: [***]
Email:
[***]
8
4.4
Amendment
and Waiver
. This Warrant and any term hereof may be amended or otherwise changed, waived, discharged or terminated (either generally
or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which
enforcement of such amendment or other change, waiver, discharge or termination is sought.
4.5
Attorneys’
Fees
. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.
4.6
Counterparts;
Facsimile/Electronic Signatures
. This Warrant may be executed by one or more of the parties hereto in any number of separate counterparts,
all of which together shall constitute one and the same instrument. The Company, Holder and any other party hereto may execute this Warrant
by electronic means and each party hereto recognizes and accepts the use of electronic signatures and the keeping of records in electronic
form by any other party hereto in connection with the execution and storage hereof. To the extent that this Warrant or any agreement
subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically, it shall be binding to the same
extent as though it had been executed on paper with an original ink signature, as provided under applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed, signed, stored or delivered electronically
shall not prevent the transfer by any Holder of this Warrant pursuant to, or the enforcement of, the terms hereof.
4.7
Headings
.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision
of this Warrant.
4.8
Business
Days
. “
Business Day
” is any day that is not a Saturday, Sunday or a day on which the Nasdaq Capital Market
and commercial banks in the City of New York are closed.
SECTION 5.
GOVERNING LAW, VENUE, JURY
TRIAL WAIVER, AND JUDICIAL REFERENCE
.
5.1
Governing
Law
. This Warrant shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
9
5.2
Jurisdiction
and Venue
. The Company and Holder each submit to the exclusive jurisdiction of the state and federal courts in the State of New York;
provided, however, that nothing in this Warrant shall be deemed to operate to preclude Holder from bringing suit or taking other legal
action in any other jurisdiction to enforce a judgment or other court order in favor of Holder. The Company expressly submits and consents
in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby waives any objection that it
may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such
legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints,
and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made in
accordance with Section 4.3 of this Warrant.
5.3
Jury
Trial Waiver
.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND HOLDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS WARRANT, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES’ AGREEMENT TO THIS WARRANT. EACH PARTY HAS REVIEWED THIS WAIVER WITH
ITS COUNSEL
.
5.4
Survival
.
This Section 5 shall survive the termination of this Warrant.
[Remainder of page left blank intentionally]
[Signature page follows]
10
IN WITNESS WHEREOF, the parties have caused this
Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
“COMPANY”
VERASTEM, INC.
By:
Name:
Daniel Paterson
Title:
President and Chief Executive Officer
[Signature Page to the
Pre-Funded Warrant]
APPENDIX 1
FORM OF NOTICE OF EXERCISE
1.
The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Verastem, Inc. (the “
Company
”)
in accordance with the attached Pre-Funded Warrant To Purchase Stock (the “
Warrant
”), and tenders payment of
the aggregate Warrant Price for such shares as follows:
[    ]                 Wire
transfer of immediately available funds to the Company’s account
[    ]                 Cashless
Exercise pursuant to Section 1.2 of the Warrant
[    ]                 Other
[Describe] __________________________________________
2.
Please
deliver to the Holder Shares in accordance with the terms of the Warrant. The Warrant Shares shall be delivered to the following DWAC
Account Number:________________.
3. By its delivery of this
Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder
will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 1.7 of the Warrant to which this notice relates.
Capitalized terms used herein and not otherwise defined herein have
the respective meanings set forth in the Warrant.
HOLDER:
By:
Name:
Title:
(Date):
Schedule 1

----- tm2627537d6_ex5-1.htm -----
EX-5.1
4
tm2627537d6_ex5-1.htm
EXHIBIT 5.1
Exhibit 5.1
October 14, 2026
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
Re:
Registration Statement on Form S-3 (File No. 333-289399), as amended
Ladies and Gentlemen:
We have acted as counsel to Verastem, Inc., a Delaware
corporation (the “Company”), in connection with the issuance and sale of (i) 30,937,500 shares of the Company’s common
stock (“Common Stock”), $0.0001 par value per share (the “Shares”), and (ii) pre-funded warrants (the “Pre-Funded
Warrants”) to purchase up to an aggregate of 312,503 shares of Common Stock (the “Pre-Funded Warrant Shares”); pursuant
to the above-referenced registration statement (as amended through the date hereof, the “Registration Statement”), filed by
the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”). The Shares, and the Pre-Funded Warrants are being sold pursuant to an underwriting agreement, dated October
14, 2026 (the “Underwriting Agreement”), between the Company and the underwriters named therein.
In connection with this opinion letter, we have
examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed
appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent
verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the
Delaware General Corporation Law.
Based upon and subject to the foregoing, we are
of the opinion that (i) the Shares have been duly authorized and, when issued and delivered pursuant to the Underwriting Agreement against
payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable, (ii) provided that the Pre-Funded
Warrants have been duly executed and delivered by the Company and duly delivered to the purchaser thereof against payment therefor, then
the Pre-Funded Warrants, when issued and sold as described in the prospectus supplement dated October 14, 2026 (the “Prospectus”),
assuming a sufficient number of Pre-Funded Warrant Shares are at the time available for issuance, will be valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally
and by general equitable principles (regardless of whether such enforceability is considered in a proceeding at law or in equity) and
implied covenants of good faith and fair dealing, provided that we express no opinion as to the validity, legally binding effect or enforceability
of any provision in the Pre-Funded Warrants that requires or relates to adjustments to the exercise price at a price or in an amount that
a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture, and (iii)
the Pre-Funded Warrant Shares, when issued upon exercise of the Pre-Funded Warrants in accordance with their respective terms, will have
been duly authorized and validly issued and will be fully paid and non-assessable.
Verastem, Inc.
- 2 -
October 14, 2026
We hereby consent to your filing this opinion as
an exhibit to a Current Report on Form 8-K to be incorporated by reference into the Registration Statement and to the use of our name
therein and in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP