Tyra Biosciences(TYRA)定价4亿美元增发：907.9万股普通股+907.9万份预付权证，发行价22.03美元，9月15日交割

----- d102025d8k.htm -----
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 14, 2026
Tyra Biosciences, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware
001-40800
83-1476348
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
2656 State Street
Carlsbad
,
California
92008
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s Telephone Number, Including Area Code:
(619)
728-4760
(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, par value $0.0001 per share
TYRA
Nasdaq Global Select 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 September 14, 2026, Tyra Biosciences, Inc. (TYRA or the Company) entered into an underwriting agreement (the Underwriting Agreement) with Jefferies LLC, Guggenheim Securities, LLC, Cantor Fitzgerald & Co. and Barclays Capital Inc., as representatives of the several underwriters named therein (collectively, the Underwriters), relating to the issuance and sale of (i) 9,079,000 shares (the Shares) of the Company’s common stock, par value $0.0001 per share (the Common Stock), at an offering price of $22.03 per Share, and (ii) with respect to certain investors,
pre-funded
warrants to purchase an aggregate of 9,078,529 shares of Common Stock at an offering price of $22.029 per
pre-funded
warrant (the
Pre-Funded
Warrants), which represents the per share price for the Shares less a nominal $0.001 per share exercise price for each
Pre-Funded
Warrant. The Underwriters have agreed to purchase the Shares from the Company pursuant to the Underwriting Agreement at a price of $20.7082 per Share and
Pre-Funded
Warrants at a price of $20.7072 per
Pre-Funded
Warrant. The gross proceeds to the Company from this offering are expected to be approximately $400.0 million, before deducting underwriting discounts and commissions and estimated offering expenses. The offering is expected to close on September 15, 2026, subject to the satisfaction of customary closing conditions.
Each
Pre-Funded
Warrant will have an exercise price of $0.001 per share of Common Stock, will be immediately exercisable on the date of issuance and will not expire. Under the terms of the
Pre-Funded
Warrants, 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, which, upon giving effect to such exercise, would cause a holder (together with its affiliates) to own more than a specified beneficial ownership limitation of either 4.99%, 9.99% or 19.99% (as selected by such holder prior to the issuance of the
Pre-Funded
Warrant) of the number of shares of the Common Stock outstanding immediately after giving effect to such exercise, as such percentage ownership is determined in accordance with the terms of the
Pre-Funded
Warrants. However, any holder may increase or decrease such percentage to any other percentage not in excess of 19.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice is delivered to the Company.
The exercise price and the number of shares of Common Stock issuable upon exercise of each
Pre-Funded
Warrant will be 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.
In the event of certain fundamental transactions (as described in the
Pre-Funded
Warrants), a holder of
Pre-Funded
Warrants will be entitled to receive, upon exercise of the
Pre-Funded
Warrants, the kind and amount of securities, cash or property that such holder would have received had they exercised in full the
Pre-Funded
Warrants immediately prior to such fundamental transaction without regard to any limitations on exercise contained in the
Pre-Funded
Warrants.
The offering is being made pursuant to the Company’s shelf registration statement on Form
S-3
(Registration Statement
No. 333-298911),
including the prospectus included therein, previously filed with the Securities and Exchange Commission (the SEC) and which became automatically effective upon filing, and a prospectus supplement and the accompanying prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the Securities Act).
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
The foregoing description of the Underwriting Agreement and the
Pre-Funded
Warrants are not complete and are qualified in their entirety by reference to the full text of the Underwriting Agreement and form of
Pre-Funded
Warrant, copies of which are filed as Exhibit 1.1 and Exhibit 4.1, respectively, to this report and which are incorporated by reference herein. A copy of the opinion of Latham & Watkins LLP, relating to the legality of the issuance and sale of the Shares and
Pre-Funded
Warrants in this offering is attached as Exhibit 5.1 to this report.
The Company issued a press release on September 14, 2026 announcing the pricing of the offering, which press release is attached as Exhibit 99.1 to this report.
***
Forward-Looking Statements
Tyra cautions you that statements contained in this report regarding matters that are not historical facts are forward-looking statements. The forward-looking statements are based on our current beliefs and expectations and include, but are not limited to: our expectations regarding the expected closing of the offering and the anticipated gross proceeds from the offering. Actual results may differ from those set forth in this report due to the risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the offering, as well as risks and uncertainties inherent in our business described in our prior filings with the SEC, including under the heading “Risk Factors” in our annual report on Form
10-K
for the year ended December 31, 2025, and any subsequent filings with the SEC. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof, and we undertake no obligation to update such statements to reflect events that occur or circumstances that exist after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement, which is made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description
1.1
Underwriting Agreement, dated September 14, 2026, by and among Tyra Biosciences, Inc. and Jefferies LLC, Guggenheim Securities, LLC, Cantor Fitzgerald & Co. and Barclays Capital Inc., as representatives of the several underwriters named therein
4.1
Form of
Pre-Funded
Warrant (2026 Offering)
5.1
Opinion of Latham & Watkins LLP
23.1
Consent of Latham & Watkins LLP (included in Exhibit 5.1)
99.1
Press Release dated September 14, 2026
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.
TYRA BIOSCIENCES, INC.
Date: September 14, 2026
By:
/s/ Ali Fawaz
Ali Fawaz
General Counsel and Secretary

----- d102025dex11.htm -----
EX-1.1
2
d102025dex11.htm
EX-1.1
EX-1.1
Exhibit 1.1
Tyra Biosciences, Inc.
(a Delaware corporation)
9,079,000 Shares of Common Stock
Pre-Funded
Warrants to Purchase 9,078,529 Shares of Common Stock
UNDERWRITING AGREEMENT
September 14, 2026
Jefferies LLC
Guggenheim Securities, LLC
Cantor Fitzgerald & Co.
Barclays Capital Inc.
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
c/o Cantor Fitzgerald & Co.
110 East 59th Street, 6th Floor
New York, New York 10022
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Tyra Biosciences, Inc., a Delaware corporation (the “Company”), confirms its agreement with Jefferies LLC, Guggenheim Securities,
LLC, Cantor Fitzgerald & Co., Barclays Capital Inc. and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Jefferies LLC, Guggenheim Securities, LLC, Cantor Fitzgerald & Co. and Barclays Capital Inc. are acting as representatives (in such capacity, the “Representatives”), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of (i) shares of Common Stock, par value $0.0001 per share, of the Company (the “Common Stock”) and
(ii) pre-funded
warrants, in the form set forth in Exhibit B hereto, to purchase shares of Common Stock (the
“Pre-Funded
Warrants”), each as set forth in
Schedule A hereto. The aforesaid 9,079,000 shares of Common Stock (the “Shares”) and
Pre-Funded
Warrants to purchase 9,078,529 shares of Common Stock to be purchased by the Underwriters are herein
called, collectively, the “Securities.” The shares of Common Stock issuable upon exercise of the
Pre-Funded
Warrants are herein called the “Warrant Shares.”
The Company understands that the Underwriters propose to make an offering of the Securities
as soon as the Representatives deem advisable after this Agreement has been executed and delivered.
The Company has prepared and filed
with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form
S-3
(No. 333-298911), covering the offering and sale of certain securities,
including the Securities and the Warrant Shares, under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”), which such automatic shelf
registration statement became effective under Rule 462(e) under the 1933 Act Regulations (“Rule 462(e)”). Such registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto
to such time, including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form
S-3
under the
1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is referred to herein as the “Registration Statement;” provided, however,
that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be
considered the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules thereto as of such time, the documents
incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form
S-3
under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to the
Rule 430B. The related prospectus covering the Securities in the form first used to confirm sales of the 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
1933 Act) is hereinafter referred to as the “Base Prospectus.” Each preliminary prospectus used in connection with the offering of the Securities, if any, including the documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form
S-3
under the 1933 Act, are collectively referred to herein as a “preliminary prospectus.”
Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus relating to the Securities in
accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”). The Base Prospectus, as supplemented by the final prospectus, in the form first furnished or made available to the Underwriters for use in
connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3
under the 1933 Act, are collectively
referred to herein as the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system) (“EDGAR”).
As used in this Agreement:
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1934 Act Regulations” means the rules and regulations of the Commission under the 1934 Act.
“Applicable Time” means 6:05 A.M. New York City time, on September 14, 2026 or such other time as agreed by the Company and
the Representatives.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior
to the Applicable Time, the most recent preliminary prospectus, if any, (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and the information included on Schedule
B-1
hereto, all considered together.
2
“Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”))
relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “
bona fide
electronic road show,” as defined in Rule 433), as evidenced by its being specified in Schedule
B-2
hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of, or Rule 163B, under the 1933 Act.
“Written
Testing-the-Waters
Communication” means
any
Testing-the-Waters
Communication that is a written communication within the meaning of Rule 405 under the 1933 Act.
All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other
information incorporated or deemed incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the
execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the
1934 Act and the 1934 Act Regulations, incorporated or deemed to be incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as
the case may be, at or after the execution and delivery of this Agreement.
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company
. The Company represents and warrants to each Underwriter as of the date hereof, the
Applicable Time and the Closing Time (as defined below), and agrees with each Underwriter, as follows:
(i)
Registration Statement and
Prospectuses
. The Company meets the requirements for use of Form
S-3
under the 1933 Act. The Registration Statement is an “automatic shelf registration statement” within the meaning of Rule
405, and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933
Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has
been issued and no proceedings for any of those purposes or pursuant to Section 8A under the 1933 Act have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any)
from the Commission for additional information.
3
Each of the Registration Statement and any post-effective amendment thereto, at the time of
its effectiveness, each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, the Applicable Time and the Closing Time complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, at the Applicable Time and the Closing
Time complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations.
(ii)
Accurate Disclosure
. Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof, at
the Closing Time, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the
Applicable Time and at the Closing Time, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package and (C) any individual
Written
Testing-the-Waters
Communication, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a
material fact or omitted, omits or will 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. Neither the Prospectus nor any amendment or
supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), or at the Closing Time, included, includes or will include an untrue statement of a material fact or omitted, omits or will 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 documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the
other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an 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.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first and second sentences of the third paragraph
under the heading “Underwriting,” the information in the first sentence of the fourth paragraph under the heading “Underwriting,” the information in the first two sentences of the first paragraph under the heading
“Underwriting—Commission and Expenses,” the information in the first sentence of the first paragraph under the heading “Underwriting—Stabilization,” the first, second and fifth sentences of second paragraph under
the heading “Underwriting—Stabilization,” and the fourth paragraph under the heading “Underwriting—Stabilization,” in each case contained in the Prospectus (collectively, the “Underwriter
Information”).
4
(iii)
Issuer Free Writing Prospectuses
. No Issuer Free Writing Prospectus conflicts
or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 1(a)(ii) hereof. Any offer that is a written communication relating to the Securities made prior to the initial filing of the Registration Statement by the Company or any person acting on
its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the 1933 Act Regulations (“Rule 163”) and
otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
(iv)
Testing-the-Waters
Materials
. The Company
(A) has not engaged in any
Testing-the-Waters
Communication in connection with the offering to which this Agreement relates other than
Testing-the-Waters
Communications with the consent of the Representatives with (x) entities that are qualified institutional buyers within the meaning of Rule 144A under
the 1933 Act or (y) institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act, and otherwise in compliance with the requirements of either Section 5(d) or Rule 163B under the 1933 Act, and (B) has
not authorized anyone other than the Representatives to engage in
Testing-the-Waters
Communications. The Company reconfirms that the Representatives have been authorized
to act on its behalf in undertaking
Testing-the-Waters
Communications specifically authorized by the Company.
(v)
Company Not Ineligible Issuer
. At the time of filing the Registration Statement and any post-effective amendment thereto, at the
earliest time thereafter that the Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(vi)
Emerging Growth Company Status
. From the time of the initial filing of the Registration Statement with the Commission (or, if
earlier, the first date on which the Company engaged directly or through any individual or entity (“Person”) authorized to act on its behalf in any
Testing-the-Waters
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the
1933 Act (an “Emerging Growth Company”).
(vii)
Well-Known Seasoned Issuer
. (A) At the original effectiveness of
the Registration Statement, (B) at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the 1933 Act, whether by post-effective amendment, an incorporated report filed pursuant to Section 13
or 15(d) of the 1934 Act or a form of prospectus, (C) at the time the Company or any person acting on its behalf, within the meaning of Rule 163(c) under the 1933 Act for purposes of this clause only, made any offer relating to the Securities
in reliance on Rule 163, and (D) as of the Applicable Time, the Company was and is a “well-known seasoned issuer” within the meaning of Rule 405.
5
(viii)
Independent Accountants
. The accountants who certified the financial
statements and supporting schedules included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants with respect to the Company as required by the 1933 Act,
the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board.
(ix)
Financial
Statements
. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects
the financial position of the Company at the dates indicated and the statements of operations and comprehensive loss, stockholders’ equity and cash flows of the Company for the periods specified; said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved except, in the case of unaudited interim financial statements, subject to normal
year-end
audit adjustments and the exclusion of certain footnotes as permitted by the applicable rules of the Commission. The supporting schedules included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information, if any,
included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of
the audited financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. The interactive data in eXtensible Business Reporting Language, if any, included 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.
(x)
No Material Adverse Change in Business
. Except as otherwise stated therein, since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company, other than those in the ordinary course of business, which are material
with respect to the Company, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(xi)
Good Standing of the Company
. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, as applicable,
whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(xii)
No Subsidiaries
. The Company has no subsidiaries.
6
(xiii)
Capitalization
. The authorized, issued and outstanding shares of capital stock
of the Company are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or employee benefit or equity incentive plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and
non-assessable.
None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company.
(xiv)
Authorization of Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(xv)
Authorization and Description of Securities
. The Securities to be purchased by the Underwriters from the Company have been duly
authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and
fully paid and
non-assessable;
and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company. The Common Stock conforms in all material
respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the
same. The
Pre-Funded
Warrants to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when executed and
delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. 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. The Warrant Shares, when issued and delivered upon exercise of the
Pre-Funded
Warrants and in accordance therewith, will be validly issued, fully paid and nonassessable, and the issuance of the Warrant Shares is not subject to any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase the Warrant Shares. The Securities, when issued, will conform to the description thereof set forth in or incorporated into the Registration Statement, the General Disclosure Package and the Prospectus. No
holder of Securities will be subject to personal liability solely by reason of being such a holder.
(xvi)
Registration Rights
.
There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this
Agreement, other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and have been waived.
(xvii)
Absence of Violations, Defaults and Conflicts
. The Company is not (A) in violation of its charter,
by-laws
or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound or to which any of the properties or assets of the Company is subject (collectively, “Agreements and
Instruments”), except for such defaults that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree
of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its properties, assets or operations (each, a “Governmental Entity”),
except for such
7
violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the
Pre-Funded
Warrants and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the
Securities and the Warrant Shares and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the
Pre-Funded
Warrants have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of
(i) the provisions of the charter,
by-laws
or similar organizational document of the Company or (ii) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity
except, in the case of clause (ii) above, for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company.
(xviii)
Absence of Labor Dispute
. No labor dispute with the employees of the Company exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers, customers or contractors, which, in either case, would, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(xix)
Absence of Proceedings
. There is no action, suit,
proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company, which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially affect its properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of
all pending legal or governmental proceedings to which the Company is a party or of which any of its properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus,
including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(xx)
Accuracy of Exhibits
. There are no contracts or documents which are required to be described in the Registration Statement, the
General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xxi)
Absence of Further Requirements
. No filing with, or authorization, approval, consent, license, order, registration, qualification
or decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement and the
Pre-Funded
Warrants, except (A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of The Nasdaq Global
Select Market, state securities laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”); or (B) such as which the failure to obtain would not, singly or in the aggregate, impair the power or ability of the
Company to perform its obligations under this Agreement or consummate the transactions contemplated hereby.
8
(xxii)
Possession of Licenses and Permits
. The Company possesses such valid and
current registrations, listings, permits, licenses, approvals, clearances, certificates, consents and other authorizations issued by the appropriate Governmental Entities necessary to conduct the business now operated by it (collectively,
“Governmental Licenses”) (including, without limitation, all such Governmental Licenses required by the United States Food and Drug Administration (the “FDA”), except where the failure so to possess would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company is in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company has not received any notice of proceedings or other actions relating to the suspension, revocation or
modification of any Governmental Licenses which, singly or in the aggregate, if taken or the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
(xxiii)
Title to Property
. The Company has good and marketable title to all real property owned by it and good title to all other
properties owned by it, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure
Package and the Prospectus or (B) do not, singly or in the aggregate, materially and adversely 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 all
of the leases and subleases material to the business of the Company and under which the Company holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and the Company
does not have any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company to the
continued possession of the leased or subleased premises under any such lease or sublease.
(xxiv)
Possession of Intellectual
Property
. The Company owns or possesses, or can acquire on reasonable terms, all patents, statutory invention rights, invention disclosures, design rights, inventions, copyrights, rights in technology and software, data,
know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), Internet domain names, trademarks, service marks, business names, trade
names, trade dress and any applications (including provisional applications), registrations, or renewals for any of the foregoing, together with the goodwill associated with any of the foregoing, and other intellectual property (collectively,
“Intellectual Property”), as is necessary to carry on the business as now operated by the Company and as proposed to be conducted as described in the Registration Statement, the General Disclosure Package and the Prospectus (such
Intellectual Property, the “Company Intellectual Property”), except where the failure to own or possess or have the ability to acquire on reasonable terms any of the foregoing rights would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. In addition, (A) the Company has not received any written notice of infringement and to the knowledge of the Company, there is no infringement, misappropriation, or other violation
of, or conflict with, any valid Intellectual Property rights of third parties by the Company, except to the extent any such infringement, misappropriation, violation or conflict would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, (B) to the knowledge of the Company, (i) there is no pending or threatened action, suit, proceeding or claim against the Company or the Company Intellectual Property, as applicable, by any third party
challenging the Company’s rights in, or the validity, ownership, registrability, enforceability or scope of, any Company Intellectual Property and (ii) there are no facts which would form a reasonable basis for such claim, except, in each
case, as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (C) to the knowledge of the Company, there is no infringement,
9
misappropriation, or other violation of any Company Intellectual Property by third parties, (D) all Company Intellectual Property is owned by the Company and there are no third parties who
have rights to any Company Intellectual Property, including no liens, security interests, or other encumbrances, (E) all Company Intellectual Property has been duly maintained and is in full force and effect and there are no material defects
in, including in connection with the filing and prosecution of, any of the Company Intellectual Property, (F) to the knowledge of the Company, (i) the Company has taken reasonable steps necessary to secure the interests of the Company in
the Company Intellectual Property from all employees, consultants, agents or contractors that developed such Company Intellectual Property, (ii) each person who is or was an employee or contractor of the Company and who is or was involved in
the creation or development of any Company Intellectual Property for or on behalf of the Company has executed an agreement containing a valid assignment to the Company of such person’s rights in and to such Intellectual Property and
(iii) no such person is in or has ever been in violation of any term of any agreement or covenant to or with a former employer where the basis of such violation relates to such person’s employment with the Company or actions undertaken by
such person while employed with the Company, except to the extent any such violation would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (G) the Company has taken all reasonable steps necessary
to maintain and protect the confidentiality of the material trade secrets and other material confidential Company Intellectual Property and the confidentiality of such material trade secrets and material confidential Company Intellectual Property
has not been compromised or disclosed to or accessed by any third party except pursuant to appropriate nondisclosure and confidentiality agreements, and (H) to the knowledge of the Company, no university, military, educational institution,
research center, Governmental Entity or other organization has funded, contributed to or sponsored research and development conducted in connection with the business of the Company that (i) has any claim of right to, ownership of or other lien
on any Company Intellectual Property or (ii) would affect the proprietary nature of any Company Intellectual Property.
(xxv)
Environmental Laws
. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) the
Company is not in violation of any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials
or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the
Company has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with their requirements thereunder, (C) there are no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company and (D) to the
Company’s knowledge, there are no events or circumstances that would reasonably be expected to form the basis of an order for
clean-up
or remediation, or an action, suit or proceeding by any private
party or Governmental Entity, against or affecting the Company relating to Hazardous Materials or any Environmental Laws.
(xxvi)
Accounting Controls and Disclosure Controls
. The Company maintains effective internal control over financial reporting (as defined under Rule
13-a15
and
15d-15
under the rules and regulations of the Commission under the 1934 Act Regulations and a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorization; (B) transactions are recorded as necessary to permit
10
preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible
Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the
Commission’s rules and guidelines applicable thereto. Since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether
or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control
over financial reporting. The Company maintains disclosure controls and procedures (as defined in Rule
13a-15
and Rule
15d-15
under the 1934 Act Regulations) that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules
and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxvii)
Compliance with the Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated in connection therewith, including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxviii)
Payment of Taxes
. Except insofar as
the failure to file or pay (as applicable) would not result in a Material Adverse Effect, (A) all United States federal income tax returns of the Company required by law to be filed have been filed and all United States federal income taxes
shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided, and (B) the Company has
filed all other tax returns that are required to have been filed by it pursuant to applicable foreign, state, local or other law, and has paid all other taxes due pursuant to such returns or pursuant to any assessment received by the Company, except
for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company.
(xxix)
Insurance
. The Company carries or is entitled to the benefits of insurance, with financially sound and reputable insurers, in
such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. The Company has no reason to believe that it will not be
able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost
that would not reasonably be expected to result in a Material Adverse Effect. The Company has not been denied any insurance coverage which it has sought or for which it has applied.
(xxx)
Investment Company Act
. The Company is not required, and upon the issuance and sale of the Securities and Warrant Shares as herein
contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be required, to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “1940 Act”).
11
(xxxi)
Absence of Manipulation
. Neither the Company nor any affiliate of the Company
has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed, or would reasonably be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities and Warrant Shares or to result in a violation of Regulation M under the 1934 Act.
(xxxii)
Foreign Corrupt Practices Act
. Neither the Company, any director or officer, nor, to the knowledge of the Company, any agent,
employee, affiliate or other person acting on behalf of the Company is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxiii)
Money
Laundering Laws
. The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes of all jurisdictions in which the Company conducts business, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.
(xxxiv)
OFAC
. Neither the Company, any director or officer, nor, to the knowledge of the Company, any
agent, employee, affiliate or representative of the Company is a Person currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority
(collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or
lend, contribute or otherwise make available such proceeds to any joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of
Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. Since April 24, 2019, the Company has
not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any person or jurisdiction that, at the time of the dealing or transaction, is or was the subject or the target of Sanctions in violation of applicable
Sanctions.
(xxxv)
Lending Relationship
.
Except as disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay
any outstanding debt owed to any affiliate of any Underwriter.
12
(xxxvi)
Statistical and Market-Related Data
. Any statistical and market-related data
included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate in all
material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxvii)
Cybersecurity
. Except as would not reasonably be expected to result in a Material Adverse Effect, (A) there has been no
security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s information technology and computer systems, networks, hardware, software, data and databases (including the data and
information of the Company’s customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company, and any such data processed or stored by third parties on behalf of the Company), equipment or
technology (collectively, “IT Systems and Data”): (B) the Company has not been notified of, and it has no knowledge of any event or condition that would reasonably be expected to result in, any security breach or incident, unauthorized
access or disclosure or other compromise to its IT Systems and Data and (C) the Company has implemented appropriate controls, policies, procedures, and technological safeguards designed to maintain and protect the integrity, continuous
operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. The Company is 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 and Data and to the
protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(xxxviii)
Compliance with
Healthcare Laws
. The Company is, and during the last three (3) years, has been, in compliance with all Health Care Laws, except where failure to comply would not reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect. For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.); (ii) all applicable federal, state, local and foreign health care
fraud and abuse laws, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C.
Section 1320a-7b(b)),
the federal Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the
criminal false statements law (42 U.S.C.
Section 1320a-7b(a)),
18 U.S.C. Sections 286 and 287, the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act (42
U.S.C. Section 1320d et seq.) (“HIPAA”), the civil monetary penalties law (42 U.S.C.
Section 1320a-7a),
the exclusion law (42 U.S.C.
Section 1320a-7),
the federal Physician Payments Sunshine Act (42 U.S.C.
Section 1320-7h),
and applicable laws governing government funded or sponsored
healthcare programs; (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.); (iv) all other similar local, state, federal, national, supranational and foreign
laws; and (v) the regulations promulgated pursuant to such laws set forth in subparts (i) through (iv). Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, during the last
three (3) years, the Company has not received written notice of any claim, subpoena, civil investigative demand, action, suit, compliant (including a
qui tam
complaint), proceeding, hearing, enforcement, investigation, inquiry,
arbitration or other action from any court or arbitrator or governmental authority or third party alleging that any product, operation, or activity is in violation of any Health Care Laws nor, to the Company’s knowledge, is any such claim,
subpoena, civil investigative demand, action, suit, complaint (including a
qui tam
complaint), proceeding, hearing, enforcement, investigation, inquiry, arbitration or other action threatened. Except as would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, during the last three (3) years, the Company has filed, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments (“Submissions”) as required by any Health Care Laws, and all such Submissions were accurate on the date filed (or were corrected or supplemented by a subsequent submission). The Company is not, and has not
during the last three (3) years been, a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental authority. During the last three
(3) years, neither the Company nor any of its respective employees, officers, directors, or, to the
13
Company’s knowledge, agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or human clinical research or, to the knowledge of the
Company, is or could reasonably expected to be subject to an inquiry, investigation, proceeding or other similar action by the FDA, or other applicable regulatory authority or other governmental entity that could reasonably be expected to result in
debarment, suspension or exclusion.
(xxxix)
Clinical Data and Regulatory Compliance
. The preclinical tests and clinical trials, to
the extent applicable, conducted by or on behalf of, or sponsored by, the Company and that are described in, or the results of which are referred to in, the Registration Statement, the General Disclosure Package and the Prospectus were and, if still
pending, are being conducted in all material respects in accordance with all applicable laws, rules, and regulations, including applicable Health Care Laws; each description of such tests and trials, and the results thereof, contained in the
Registration Statement, the General Disclosure Package and the Prospectus is accurate in all material respects, and the Company has no knowledge of any other studies or tests the results of which are materially inconsistent with, or otherwise
reasonably call into question, the results described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus; the Company has not received any written notices or other written correspondence from any
governmental authority requiring the termination, suspension or material modification of any preclinical tests or clinical trials that are described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus.
(xl)
No Rated Securities
. The Company does not have any debt securities or preferred stock that is rated by any “nationally
recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).
(xli)
Listing
. The Shares
and Warrant Shares are registered pursuant to Section 12(b) or 12(g) of the 1934 Act and are listed on The Nasdaq Global Select Market. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Shares or Warrant Shares under the 1934 Act or delisting the Shares or Warrant Shares from The Nasdaq Global Select Market, nor has the Company received any notification that the Commission or The Nasdaq Global Select Market is contemplating
terminating such registration or listing. To the Company’s knowledge, the Company is in compliance, in all material respects, with all listing requirements of The Nasdaq Global Select Market.
(xlii)
Outbound Investment Security Program
. The Company is not a “covered foreign person”, as that term is defined in 31
C.F.R. § 850.209. The Company does not currently engage, or have plans to engage, directly or indirectly, in a “covered activity”, as that term is defined in 31 C.F.R. § 850.208 (“Covered Activity”). The Company
does not have any joint venture that engages in or plans to engage inany Covered Activity. The Company also does not, directly or indirectly, hold a board seat on, have a voting or equity interest in, or have any contractual power to direct or cause
the direction of the management or policies of any person or persons that engages or plans to engage in any Covered Activity.
(b)
Officer’s Certificates
. Any certificate signed by any officer of the Company delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Securities
. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, (i) at the price per share set forth in Schedule A (the “Share
Purchase Price”), that number of Shares set forth in Schedule A opposite the name of such Underwriter, and (ii) at the price per
Pre-Funded
Warrant set forth
14
in Schedule A, that number of
Pre-Funded
Warrants set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Securities
which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate
any sales or purchases of fractional shares. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter.
(b) [Reserved].
(c)
Payment
. Payment of the purchase price for, and delivery of certificates or security entitlements for, the Securities shall be made at the offices of Cooley LLP, 3 Embarcadero Center, 20th Floor, San Francisco, CA 94111, or at such other
place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being
herein called the “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a
bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
Notwithstanding the foregoing, the Company and the Representatives shall
instruct purchasers of the
Pre-Funded
Warrants in the offering to make payment for the
Pre-Funded
Warrants at the Closing Time to the Company by wire transfer in
immediately available funds to the account specified by the Company, at a purchase price of $22.029 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 at the Closing Time 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 Company shall promptly (but in no event later than the Closing Time), pay $1.3218 per such
Pre-Funded
Warrant to the Underwriters by wire transfer in immediately available funds to the account specified by the Representatives.
In the event that any purchaser of the
Pre-Funded
Warrants in the offering fails to make payment to
the Company for all or part of the
Pre-Funded
Warrants at the Closing Time, the Representatives may elect, by written notice to the Company, to receive shares of Common Stock at the Share Purchase Price in
lieu of all or a portion of such
Pre-Funded
Warrants to be delivered to the Underwriters under this Agreement.
SECTION 3.
Covenants of the Company
. The Company covenants with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests
. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B, and will notify the Representatives as soon as practicable, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement
to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the
15
Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus, including any documents incorporated by reference therein, or for additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or
the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes including pursuant to Section 8A under the
1933 Act, or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the
offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make reasonable best
efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof as soon as practicable. The Company shall pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1)(i) under the 1933 Act Regulations, without regard to the proviso therein, and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations, including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii), either in a post-effective amendment to the Registration Statement or in the manner specified by Rule 424(g) in a prospectus filed pursuant to Rule 424(b).
(b)
Continued Compliance with Securities Laws
. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a
prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an
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, (ii) amend or supplement the General Disclosure Package or the Prospectus in order
that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the
Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement
and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object. The
Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(c)
Delivery of Registration Statements.
The Company has furnished or will deliver to the Representatives and counsel for the
Underwriters, if requested, without charge, conformed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and conformed copies of all consents and certificates of experts. The
copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation
S-T.
16
(d)
Delivery of Prospectuses
. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation
S-T.
(e)
Blue Sky Qualifications
. The Company will use
its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate
and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f)
Rule 158
. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available
(which may be satisfied by filing with the Commission pursuant to EDGAR) to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(g)
Use of Proceeds
. The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h)
Listing
. The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the
Shares and the Warrant Shares) on The Nasdaq Global Select Market.
(i)
Restriction on Sale of Securities
. During a period of 60
days from the date of the Prospectus, the Company will not, without the prior written consent of Jefferies LLC, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file or confidentially submit any
registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities to be sold hereunder (including the issuance of the
Pre-Funded
Warrants and Warrant Shares), (B) any shares of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred to in the
17
Registration Statement, the General Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to any
non-employee
director
stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (E) the filing of a registration statement on Form
S-8
or any
successor form thereto with respect to the registration of securities to be offered under any employee benefit or equity incentive plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus,
(F) the issuance of shares of Common Stock, restricted stock awards or securities convertible into or exercisable or exchangeable for shares of Common Stock in connection with (i) the acquisition of the securities, business, property or
other assets of another Person or pursuant to any employee benefit plan assumed in connection with any such acquisition, (ii) joint ventures, (iii) commercial relationships or (iv) other strategic transactions, provided that the
aggregate number of shares of Common Stock, restricted stock awards and shares of Common Stock issuable upon the conversion, exercise or exchange of securities (on an as converted or as exercised basis, as the case may be) issued pursuant to this
clause (F) shall not exceed 7.5% of the total number of shares of Common Stock issued and outstanding immediately following the issuance and sale of the Securities at the Closing Time pursuant hereto; and provided, further, that each recipient
of shares of Common Stock, restricted stock awards or securities convertible into or exercisable or exchangeable for shares of Common Stock pursuant to this clause (F) shall execute a
lock-up
agreement
substantially in the form of Exhibit A hereto or (G) any shares of Common Stock issued in an
“at-the-market”
offering pursuant to that certain Sales
Agreement, by and between the Company and TD Securities (USA) LLC, dated May 8, 2025, as amended on August 4, 2026, provided that no sales shall be made until 30 days after the date of the Prospectus.
(j)
Reporting Requirements
. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception
afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
Additionally, the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(k)
Issuer Free Writing Prospectuses
. The Company agrees that, unless it obtains the prior written consent of the Representatives, it
will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the
Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule
B-2
hereto and any
“road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing prospectus
consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus 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 existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(l) [Reserved].
18
(m)
Testing-the-Waters
Materials
. If at any time following the distribution of any Written
Testing-the-Waters
Communication there occurred or occurs an event or development as a result of which such Written
Testing-the-Waters
Communication prepared or authorized by the Company 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 existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written
Testing-the-Waters
Communication to eliminate or correct such untrue statement or omission.
(n)
Emerging Growth Company Status
. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth
Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the 1933 Act and (ii) completion of the
60-day
restricted period referred to in
Section 3(i).
(o)
Reservation of Warrant Shares
. The Company shall, at all times while any
Pre-Funded
Warrants are outstanding, reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved shares of Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of such
Pre-Funded
Warrants, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of the then-outstanding
Pre-Funded
Warrants.
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters
of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any reasonable costs associated with electronic delivery of any of the foregoing by the Underwriters to
investors, (iii) the preparation, issuance and delivery of the certificates or security entitlements for the Securities to the Underwriters and the
Pre-Funded
Warrants to the purchasers, including any
stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants
engaged by the Company or with the Company’s prior written consent in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants (provided that the
travel and lodging expenses of the Representatives shall be paid for by the Underwriters), and 50% of the cost of aircraft and other transportation chartered in connection with the road show (the remaining 50% of the cost of such aircraft and other
chartered transportation to be paid by the Underwriters), (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the
Securities; provided that the amount payable by the Company pursuant to clause (v) above and this clause (viii) shall not exceed $40,000 in the aggregate, (ix) the fees and expenses incurred, if any, in connection with the listing of
the Shares and the Warrant Shares on The Nasdaq Global Select Market, and (x)the costs and expenses
19
(including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities
made by the Underwriters caused by a breach of the representation contained in the third sentence of Section 1(a)(ii). Except as provided in this Section 4, the Underwriters will pay all of their own costs and expenses including the fees
and disbursements of their counsel, stock transfer taxes payable on the resale of any of the Securities by them and any advertising expenses connected with any offers they may make. For the avoidance of doubt, it is understood that the Underwriters
will pay any stock transfer taxes on the resale of any of the Securities owned by them.
(b)
Termination of Agreement
. If this
Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their reasonable and documented
out-of-pocket
expenses that were actually incurred, including the reasonable fees and disbursements of counsel for the Underwriters; provided that, if this Agreement is
terminated by the Representatives pursuant to Section 10 hereof, the Company will have no obligations to reimburse any defaulting Underwriter.
SECTION 5.
Conditions of Underwriters’ Obligations
. The obligations of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to
the following further conditions:
(a)
Effectiveness of Registration Statement
. The Registration Statement has become effective and,
at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the
Prospectus has been issued and no proceedings for any of those purposes or pursuant to Section 8A under the 1933 Act have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each
request (if any) from the Commission for additional information.
(b)
Opinion of Counsel for Company
. At the Closing Time, the
Representatives shall have received the favorable opinion, dated the Closing Time, of Latham & Watkins LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters.
(c)
Opinion of Intellectual Property Counsel for Company
. At
the Closing Time, the Representatives shall have received the opinion, dated the Closing Time, of Baker & Hostetler LLP, counsel for the Company with respect to intellectual property matters, in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters.
(d)
Opinion
of Counsel for Underwriters
. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Cooley LLP, counsel for the Underwriters, in form and substance reasonably satisfactory to the
Representatives.
(e)
Officers’ Certificate
. At the Closing Time, there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive Officer or the President of the Company and of the chief financial or
chief accounting officer of the
20
Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true
and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no
proceedings for any of those purposes or pursuant to Section 8A under the 1933 Act have been instituted or are pending or, to their knowledge, contemplated.
(f)
Accountant’s Comfort Letter
. At the time of the execution of this Agreement, the Representatives shall have received from
Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(g)
Bring-down Comfort Letter
. At the Closing Time, the Representatives shall have received from Ernst & Young
LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(h)
CFO Certificate
. At the time of the execution of this Agreement, the Representatives
shall have received from the Company’s chief financial officer a certificate, dated such date, including “management comfort” with respect to certain financial data included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, in form and substance satisfactory to the Representatives.
(i)
Bring-down
CFO Certificate.
At the Closing Time, the Representatives shall have received from the Company’s chief financial officer a certificate, dated as of the Closing Time, including “management comfort” with respect to certain
financial data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, in form and substance satisfactory to the Representatives.
(j)
Approval of Listing
. At the Closing Time, the Shares and the Warrant Shares shall have been approved for listing on The Nasdaq
Global Select Market, subject only to official notice of issuance.
(k)
No Objection
. FINRA has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(l)
Lock-up
Agreements
. At the date of this Agreement, the Representatives shall have received
an agreement substantially in the form of Exhibit A hereto signed by each of the Company’s directors and executive officers.
(m)
No Rating
. The Company does not have any debt securities or preferred stock that is rated by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).
21
(n)
Additional Documents
. At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(o)
Termination of Agreement
. If any condition
specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive any such termination and remain in full force and effect.
SECTION 6.
Indemnification
.
(a)
Indemnification of Underwriters
. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing
Prospectus, any Written
Testing-the-Waters
Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in 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 Securities (“Marketing Materials”), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, any Written
Testing-the-Waters
Communication, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as reasonably incurred (including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to
Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
22
(b)
Indemnification of Company, Directors and Officers
. Each Underwriter, severally
and not jointly, agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c)
Actions against Parties; Notification
.
Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d)
Settlement without Consent if Failure to Reimburse
. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7.
Contribution
. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (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
Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
23
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 Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate offering price of the
Securities as set forth on the cover of the Prospectus.
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 or by
the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 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 above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission
or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in
excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s affiliates and selling agents 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 Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8.
Representations, Warranties and Agreements to Survive
. All representations, warranties and agreements contained
in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its affiliates or
selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
24
SECTION 9.
Termination of Agreement
.
(a)
Termination
. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion
of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or The Nasdaq Global Select Market, or (iv) if trading
generally on the NYSE American or the New York Stock Exchange or in The Nasdaq Global Select Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required,
by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with
respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive such termination and remain in full force and effect.
SECTION 10.
Default by One or More of the Underwriters
. If one or more of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such
24-hour
period, then:
(i)
if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the
non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting
Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement shall terminate
without liability on the part of any
non-defaulting
Underwriter.
No action taken pursuant to this
Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does
not result in a termination of this Agreement, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the
Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
25
SECTION 11.
Notices
. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Jefferies LLC at 520 Madison Avenue, New York, New York 10022, Attention: General Counsel; Guggenheim
Securities, LLC at 330 Madison Avenue, New York, New York 10017, Attention: Head of Equity Capital Markets, Fax: (212)
658-9689;
Cantor Fitzgerald & Co. at 110 E. 59th St., 6th Floor, New York, NY
10022, Attention: General Counsel, Facsimile: (212)
829-4708;
and Barclays Capital Inc. at 745 Seventh Avenue, New York, New York 10019. Notices to the Company shall be directed to it at Tyra Biosciences,
Inc., 2656 State Street, Carlsbad, California 92008, attention of Todd Harris, Ph.D.
SECTION 12.
No Advisory or Fiduciary Relationship
. The
Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the offering price of the 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 of the Securities and the process leading
thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering of the Securities 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 of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, (e) the Underwriters have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering of the Securities and the Company has
consulted its own respective legal, accounting, financial, regulatory, investment and tax advisors to the extent it deemed appropriate and (f) none of the activities of the Underwriters in connection with the transactions contemplated herein
constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to any entity or natural person.
SECTION
13.
Recognition of the U.S. Special Resolution Regimes
.
(a) In the event that any Underwriter that is a Covered Entity becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this
Section 13, 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). “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,
26
12 C.F.R. § 382.2(b).
“
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
and the regulations promulgated thereunder.
SECTION 14.
Parties
. This Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15.
Trial by Jury
. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and
each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16.
GOVERNING LAW
. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17.
Consent to
Jurisdiction; Waiver of Immunity
. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of
the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (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 18.
TIME
. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 19.
Counterparts and Electronic Signatures
. This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§
301-309),
as amended from time to time, or other applicable law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an
executed counterpart of this Agreement will constitute due and sufficient delivery of such counterpart.
27
SECTION 20.
Effect of Headings
. The section headings herein are for convenience only and shall not
affect the construction hereof.
[SIGNATURE PAGES FOLLOW]
28
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
Tyra Biosciences, Inc.
By:
/s/ Todd Harris
Name:
Todd Harris
Title:
CEO
Accepted as of the date hereof:
Jefferies LLC
By:
/s/ Michael Brinkman
Name:
Michael Brinkman
Title:
Managing Director
Guggenheim Securities, LLC
By:
/s/ Jami Rubin
Name:
Jami Rubin
Title:
Sr. Managing Director
Cantor Fitzgerald & Co.
By:
/s/ Sage Kelly
Name:
Sage Kelly
Title:
Co-Chief
Executive Officer & Global
[
Underwriting Agreement Signature Page
]
Barclays Capital Inc.
By:
/s/ Alejandra Fernandez
Name:
Alejandra Fernandez
Title:
Managing Director
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
[
Underwriting Agreement Signature Page
]
SCHEDULE A
The offering price per share for the Shares shall be $22.03. The offering price per
Pre-Funded
Warrant shall be
$22.029.
The purchase price per share for the Shares to be paid by the several Underwriters shall be $20.7082, being an amount equal to the offering
price set forth above less $1.3218 per share, and the purchase price per
Pre-Funded
Warrant to be paid by the several Underwriters shall be $20.7072, being an amount equal to the offering price set forth above
less $1.3218 per share underlying the
Pre-Funded
Warrant.
Name of Underwriter
Number of
Shares
Number of Pre-
Funded
Warrants
Jefferies LLC
3,086,860
3,086,701
Guggenheim Securities, LLC
1,634,220
1,634,135
Cantor Fitzgerald & Co.
1,271,060
1,270,994
Barclays Capital Inc.
1,089,480
1,089,423
William Blair & Company, L.L.C.
771,715
771,675
Wedbush Securities Inc.
453,950
453,926
Raymond James & Associates, Inc.
408,555
408,534
Oppenheimer & Co. Inc.
363,160
363,141
Total
9,079,000
9,078,529
Sch A
SCHEDULE
B-1
Pricing Terms
1.
The Company is selling 9,079,000 shares of Common Stock.
2.
The Company is selling
Pre-Funded
Warrants to purchase 9,078,529 shares
of Common Stock.
3.
The offering price per share for the Common Stock shall be $22.03.
4.
The offering price per
Pre-Funded
Warrant shall be $22.029.
Sch B-1
SCHEDULE
B-2
Free Writing Prospectuses
1.
Free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act: The free writing
prospectus dated as of September 14, 2026, substantially in the form set forth in Schedule
B-3.
Sch B-2
Exhibit A
FORM OF
LOCK-UP
AGREEMENT
_____________, 2026
Jefferies LLC
Guggenheim Securities, LLC
Cantor Fitzgerald & Co.
Barclays Capital Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting
Agreement
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
c/o Cantor Fitzgerald & Co.
110 East 59th Street, 6th
Floor
New York, New York 10022
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Re:
Proposed Offering by Tyra Biosciences, Inc.
Dear
Ladies and Gentlemen:
The undersigned, a stockholder and/or an officer and/or a director of Tyra Biosciences, Inc., a Delaware corporation (the
“Company”), understands that Jefferies LLC (“Jefferies”), Guggenheim Securities, LLC (“Guggenheim”), Cantor Fitzgerald & Co. (“Cantor”), and Barclays Capital Inc. (“Barclays”, and
together with Jefferies, Guggenheim and Cantor, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the offering (the “Offering”) of
equity securities of the Company, which may include shares of common stock, par value $0.0001 per share (the “Common Stock”) of the Company (the “Shares”) and
pre-funded
warrants of the
Company to purchase Shares (together with the Shares, the “Securities”). In recognition of the benefit that the Offering will confer upon the undersigned as a stockholder and/or an officer and/or a director of the Company, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with the Representatives on behalf of each underwriter to be named in the Underwriting Agreement that, during the period beginning
on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the
“Lock-Up
Period”), the undersigned will not, without the prior written consent of
Jefferies LLC (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
2
sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the
“Lock-Up
Securities”), or, in connection with any right with respect to the registration of the undersigned’s
Lock-Up
Securities, cause the Company to file or confidentially submit any registration
statement following the date of the Offering through the duration of the
Lock-Up
Period, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the
Lock-Up
Securities, whether any such swap or transaction is to be settled by delivery of Common Stock
or other securities, in cash or otherwise.
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or otherwise
dispose of the
Lock-Up
Securities without the prior written consent of Jefferies LLC, (a) provided that (1) the Representatives receive a signed
lock-up
agreement for the balance of the
Lock-Up
Period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) in the
case of (iii), (v) and (vi) below, and, if applicable, (vii) below, such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or, in the case of (i), (ii) and (iv) below, and, if applicable, (vii) below, any filing under the Exchange Act required to be made during the
Lock-Up
Period shall clearly indicate in the footnotes thereto that the filing relates to circumstances described below, as applicable, and (4) the undersigned does not otherwise voluntarily effect any
public filing or report regarding such transfers during the
Lock-Up
Period:
(i)
as a
bona fide
gift or gifts, including a
bone fide
gift or gifts to a trust, charitable
organization or educational institution or other entity established for charitable purposes; or
(ii)
to any member of the immediate family of the undersigned, any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned (for purposes of this
lock-up
agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption,
not more remote than first cousin) or for
bona fide
estate planning purposes; or
(iii)
to the undersigned’s affiliates or to any investment fund or other entity that, directly or indirectly,
controls or manages, is controlled or managed by, or is under common control or management with, the undersigned; or
(iv)
if the undersigned is a trust, to the trustor or beneficiary of such trust or to the estate of a beneficiary of
such trust; or
(v)
to any corporation, partnership, limited liability company or other entity all of the beneficial interests of
which, in each case, are held by the undersigned; or
(vi)
as a distribution to general or limited partners, members, stockholders or other equity holders or trust
beneficiaries of the undersigned; or
(vii)
to any nominee or custodian of a person or entity to whom a transfer or disposition would be permissible under
clauses (i) through (vi) above.
3
(b) provided that (1) the Representatives receive a signed
lock-up
agreement for the balance of the
Lock-Up
Period from each donee, trustee, distributee, or transferee (excluding the Company), as the case may be, or, in the case
of (iv) below, provided that any such shares of the Common Stock issued to the undersigned upon exercise of any such option, warrant or other right shall be subject to the restrictions set forth herein, (2) any filing under the Exchange
Act required to be made during the
Lock-Up
Period shall clearly indicate in the footnotes thereto that the filing relates to circumstances described below, as applicable, and (3) the undersigned does not
otherwise voluntarily effect any public filing or report regarding such transfers:
(i)
by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or
any immediate family of the undersigned; or
(ii)
pursuant to a court or regulatory agency order, a qualified domestic order or in connection with the
dissolution of a marriage or civil union; or
(iii)
to the Company (or surrender such
Lock-Up
Securities to the Company)
pursuant to any contractual arrangement that provides the Company with an option to repurchase such
Lock-Up
Securities in connection with the termination of the undersigned’s employment or other service
relationship with the Company, or pursuant to a right of first refusal with respect to transfers of such
Lock-Up
Securities; or
(iv)
to the Company in connection with the exercise of options, warrants or other rights to acquire shares of Common
Stock or any security convertible into or exercisable for shares of Common Stock of the Company by way of net exercise and/or to cover withholding tax obligations or the exercise price thereof in connection with any such exercise pursuant to an
employee benefit plan, option, warrant or other right disclosed in the final prospectus supplement for the Offering.
Notwithstanding
anything herein to the contrary, nothing herein shall prevent the undersigned from (i) exercising any outstanding warrant, or any option to purchase shares granted under any stock incentive plan or stock purchase plan of the Company, provided
that the underlying shares shall continue to be subject to the restrictions on transfer set forth in this
lock-up
agreement, (ii) establishing a
10b5-1
trading plan
that complies with Rule
10b5-1
under the Exchange Act (a
“10b5-1
Trading Plan”), so long as there are no sales of
Lock-Up
Securities under such plan during the
Lock-Up
Period; and provided that the establishment of a
10b5-1
Trading Plan
providing for sales of
Lock-Up
Securities shall only be permitted if (1) to the extent a public announcement or filing under the Exchange Act, if any, is required to be made regarding the establishment of
such new
10b5-1
Plan, such announcement or filing shall include a statement to the effect that no sale of securities may be made pursuant to such New
10b5-1
Plan during
the
Lock-Up
Period and (2) the undersigned does not otherwise voluntarily effect any public announcement or filing regarding the establishment of such plan during the
Lock-Up
Period or (iii) transferring
Lock-Up
Securities pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to
all holders of Common Stock and involving a Change of Control of the Company, provided that in the event that the tender offer, merger, consolidation or other such transaction is not complete, the
Lock-Up
Securities owned by the undersigned shall remain subject to the restrictions contained in this
lock-up
agreement. For purposes of this
lock-up
agreement, “Change
of Control” shall mean the consummation of any bona fide third party tender offer, merger consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange
Act), or group of persons, becomes the beneficial owner (as defined in Rules
13d-3
and
13d-5
of the Exchange Act) of more than 50% of the total voting power of the
voting stock of the Company.
In addition, the restrictions herein shall not apply to sales of shares of Common Stock made pursuant to a
10b5-1
Trading Plan that has been entered into by the undersigned prior to the date hereof and disclosed to the Representatives (an “Existing
10b5-1
Plan”);
provided that if the undersigned reports any such sale on a Form 4 filed with the Securities and Exchange Commission, the undersigned shall cause such Form 4 to include a statement that such sale was effected pursuant to such Existing
10b5-1
Plan.
Furthermore, notwithstanding anything to the contrary herein, during the
Lock-Up
Period, the undersigned may sell shares of Common Stock of the Company purchased by the undersigned from the underwriters in the Offering or on the open market following the Offering if and only if
(i) such sales are not required to be reported in any public report or filing with the Securities and Exchange Commission , or otherwise, during the
Lock-Up
Period and (ii) the undersigned does not
otherwise voluntarily effect any public filing or report regarding such sales during the
Lock-Up
Period.
4
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. The undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Offering, the
Representatives and the other underwriters are not making a recommendation to you to enter into this
lock-up
agreement, and nothing set forth in such disclosures is intended to suggest that any Representative
or any underwriter is making such a recommendation.
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 the
Lock-Up
Securities except in compliance with the foregoing restrictions.
Notwithstanding anything to the contrary contained herein, this
lock-up
agreement, the
Lock-Up
Period described herein and related restrictions will automatically terminate and the undersigned will be released from all of his, her or its obligations hereunder upon the earliest to occur, if any,
of (i) if the Representatives, on the one hand, or the Company, on the other hand, informs the other, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii) the date the Company
files an application with the Securities and Exchange Commission to withdraw the shelf registration statement on Form
S-3
related to the Offering, (iii) the date the Underwriting Agreement (other than
provisions thereof which survive termination) is terminated prior to payment for and delivery of the Securities to be sold thereunder and (iv) October 31, 2026, in the event that the Underwriting Agreement has not been executed by such
date.
This
lock-up
agreement shall be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
[Signature Page Follows]
5
Very truly yours,
IF AN INDIVIDUAL:
IF AN ENTITY:
(duly authorized signature)
(please print complete name of entity)
Name:
(please print full name)
By:
(duly authorized signature)
Name:
(please print full name)
Title:
(please print full title)
Address:
Address:
E-mail:
E-mail:

----- d102025dex41.htm -----
EX-4.1
3
d102025dex41.htm
EX-4.1
EX-4.1
Exhibit 4.1
FORM OF
PRE-FUNDED
WARRANT TO PURCHASE COMMON STOCK
TYRA BIOSCIENCES, INC.
Number of Shares: [    ]
(subject to adjustment)
Warrant No.
Original Issue Date: [    ], 2026
Tyra Biosciences, Inc.,
a Delaware corporation (the “
Company
”), hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [ ] or its registered assigns (the “
Holder
”), is entitled, subject to the terms set forth below, to purchase from the
Company up to a total of [ ] shares of common stock, $0.0001 par value per share (the “
Common Stock
”), of the Company (each such share, a “
Warrant Share
” and all such shares, the
“
Warrant Shares
”) at an exercise price per share equal to $0.001 per share (as adjusted from time to time as provided in
Section
9
herein, the “
Exercise Price
”), upon
surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “
Warrant
”) at any time and from time to time on or after the date
hereof (the “
Original Issue Date
”), until the Warrant has been exercised in full, subject to the following terms and conditions:
1.
Definitions
. For purposes of this Warrant, the following terms shall have the following meanings:
“
Affiliate
” means, with respect to any Person, any other Person directly or indirectly controlled by, controlling or
under common control with, such Person, but only for so long as such control shall continue. For purposes of this definition, “control” (including, with correlative meanings, “controlled by”, “controlling” and
“under common control with”) means, with respect to a Person, possession, direct or indirect, of (i) the power to direct or cause direction of the management and policies of such Person (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), or (ii) at least 50% of the voting securities (whether directly or pursuant to any option, warrant or other similar arrangement) or other comparable equity interests.
“
Attribution Parties
” means, collectively, the following Persons and entities: (i) any direct or indirect
Affiliates of the Holder, (ii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any Attribution Parties and (iii) any other Persons whose beneficial ownership of the Common Stock would or could
be aggregated with the Holder’s and/or any other Attribution Parties for purposes of Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other
Attribution Parties to the Maximum Percentage.
“
Closing Sale Price
” means, for any security as of any date, the
last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg Financial Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade
price, then the last trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade price of such security in the
over-the-counter
market on the electronic bulletin board for such security as reported by Bloomberg Financial Markets, or if no last trade price is reported for such security by Bloomberg Financial Markets,
the average of the bid and ask prices of any market makers for such security as reported in the OTC Link or “pink sheets” by OTC Markets Group Inc. as of 4:00 P.M., New York City time on such date. If the Closing Sale Price cannot be
calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are
unable to agree upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to determine the fair market value. The Board of Directors’ determination shall be binding upon all
parties absent demonstrable error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.
“
Commission
” means the United States Securities and Exchange Commission.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Group
” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and all related rules,
regulations and jurisprudence.
“
Person
” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.
“
Principal Trading Market
” means the national securities exchange or other trading market on which the Common Stock
is primarily listed on and quoted for trading, which, as of the Original Issue Date, shall be the Nasdaq Global Select Market.
“
Registration Statement
” means the Company’s Registration Statement on Form
S-3
(File
No. 333-[
⚫
]), which was effective automatically upon filing on September 14, 2026.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Standard Settlement Period
” means the standard settlement period, expressed in a number of Trading Days, for the
Principal Trading Market with respect to the Common Stock that is in effect on the date of delivery of an applicable Exercise Notice, which as of the Original Issue Date was “T+1.”
“
Trading Day
” means any weekday on which the Principal Trading Market is normally open for trading.
“
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.
2.
Issuance of Securities; Registration of Warrants
. The Warrant, as initially issued
by the Company, is offered and sold pursuant to the Registration Statement. As of the Original 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 Securities Act as in effect on the Original Issue Date, the Warrant Shares, are not “restricted securities” under Rule 144 promulgated under the Securities
Act. The Company shall register ownership of this Warrant, upon records to be maintained by the Company for that purpose (the “
Warrant Register
”), in the name of the record Holder (which shall include the initial Holder or,
as the case may be, any assignee to which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or
any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
3.
Registration of Transfers
. Subject to
compliance with all applicable securities laws, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the Warrant Register, 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 (any such new warrant, a “
New 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
3
. Until due presentment for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for
all purposes, and the Company shall not be affected by any notice to the contrary.
4.
Exercise of Warrants
.
(a) All or any part of this Warrant shall be exercisable by the registered Holder in any manner permitted by this Warrant (including
Section 11) at any time and from time to time on or after the Original Issue Date, and such rights shall not expire until the Warrant has been exercised in full.
(b) The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached as
Schedule 1
hereto (the “
Exercise Notice
”), completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a
“cashless exercise” if so indicated in the Exercise Notice pursuant to
Section
10
below), and the date on which the last of such items is delivered to the Company (as determined in accordance with the notice
provisions hereof) is an
“
Exercise Date
.” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. 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, if any.
2
5.
Delivery of Warrant Shares
.
(a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than the number of Trading Days comprising the Standard
Settlement Period following the Exercise Date), upon the request of the Holder, credit such aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to which the Holder is entitled pursuant to such exercise (the
“
Exercise Shares
”) to the Holder’s or its designee’s balance account with The Depository Trust Company (“
DTC
”) through its Deposit Withdrawal At Custodian system, or if the Transfer
Agent is then a participant in the DTC Fast Automated Securities Transfer Program (the “
FAST Program
”). If the Transfer Agent is not a member of the FAST Program, the Transfer Agent will either (i) record the Exercise
Shares in the name of the Holder or its designee on the certificates reflecting the Exercise Shares with an appropriate legend regarding restriction on transferability, which shall be issued and dispatched by overnight courier to the address as
specified in the Exercise Notice, and on the Company’s share register or (ii) issue such Exercise Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s share register. The Holder, or any
Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s DTC
account, the date of the book entry positions or the date of delivery of the certificates evidencing such Exercise Shares, as the case may be.
(b) If the Company fails to deliver to the Holder or its designee Exercise Shares in the manner required pursuant to
Section
5(a)
within the Standard Settlement Period following the Exercise Date (other than a failure solely caused by incorrect or incomplete information provided by the Holder to the Company) and the Holder purchases (in
an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“
Buy-In
”) but did not receive within the Standard Settlement Period, then the Company shall, within two (2) Trading Days after the Holder’s request, (1) pay in cash to
the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased in the
Buy-In
exceeds (y) the
amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (B) the Closing Sale Price of a share of Common Stock on the Exercise
Date, and (2) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
(c) To the extent permitted by law and subject to
Section
5(b)
, the Company’s obligations to issue and deliver
Warrant Shares in accordance with and subject to the terms hereof (including the limitations set forth in
Section
11
below) are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the
same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach
by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance that might otherwise limit such obligation of the Company
to the Holder in connection with the issuance of Warrant Shares. Subject to
Section
5(b)
, nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
6.
Charges, Taxes and Expenses
. Issuance and delivery for shares of Common Stock upon exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company;
provided
,
however
, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any Warrant Shares or the Warrants in a name other than that of the Holder or an
Affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
7.
Replacement of Warrant
. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case) and, in each
case, a customary and reasonable contractual indemnity, if requested by the Company. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder shall deliver such mutilated Warrant to the Company as a condition
precedent to the Company’s obligation to issue the New Warrant.
3
8.
Reservation of Warrant Shares
. The Company covenants that it will, at all times while this Warrant
is outstanding, reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares that are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments
and restrictions of
Section
9
). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly
authorized, validly issued, and fully paid and
non-assessable.
The Company will take all such action as may be reasonably necessary to assure that such shares of Common Stock may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed. The Company further covenants that it will not, without the prior
written consent of the Holder, take any actions to increase the par value of the Common Stock at any time while this Warrant is outstanding.
9.
Certain Adjustments
. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section
9
.
(a)
Stock Dividends and Splits
. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its
Common Stock or otherwise makes a distribution on any class of capital stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue Date or as amended, that is payable in shares of
Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of shares of Common Stock, (iii) combines its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues
by reclassification of shares of capital stock any additional shares of Common Stock of the Company, then in each such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution,
provided, however
, that if such record date shall have been fixed and such dividend is not fully paid on the date fixed
therefor, the Exercise Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Exercise Price shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends. Any
adjustment pursuant to clause (ii), (iii) or (iv) of this paragraph shall become effective immediately after the effective date of such subdivision, combination or issuance.
(b)
Pro Rata Distributions
. If, on or after the Original Issue Date, the Company shall declare or make any dividend or other pro rata
distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options,
evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction, but, for the avoidance of doubt, excluding any distribution of shares of
Common Stock subject to
Section
9(a)
, any distribution of Purchase Rights (as defined below) subject to
Section
9(c)
and any Fundamental Transaction (as defined below) subject to
Section
9(d))
(a “
Distribution
”) then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the
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 (as defined
below)) immediately before the date on which a record is taken for such Distribution, 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 participation in such Distribution
(
provided
, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to
participate in such Distribution to such extent (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and such portion of such Distribution shall
be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted
such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if there had been no such limitation).
4
(c)
Purchase Rights
. If at any time on or after the Original Issue Date, the Company
grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property, in each case pro rata to the record holders of any class of Common Stock (the “
Purchase
Rights
”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the 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 Common Stock are to be determined for the grant, issuance or sale of such Purchase Rights (
provided
, that to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties 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 Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and at the Holder’s election, in its sole discretion, either (1) such
Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties 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 to be held similarly in abeyance) to the same extent as if there had been no such
limitation or (2) the Company shall offer the Holder the right upon exercise of such Purchase Right to acquire a security (e.g. a
pre-funded
warrant) that would not result in the Holder and the other
Attribution Parties exceeding the Maximum Percentage but will otherwise to the extent possible have economic and other rights, preferences and privileges substantially consistent and on par with the securities or other property issuable upon
exercise of the originally offered Purchase Rights). As used in this Section 9(c), (i) “Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities and (ii)
“Convertible Securities” mean any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock.
(d)
Fundamental Transactions
. If, at any time while this Warrant is outstanding (i) the Company effects any merger or
consolidation of the Company with or into another Person, in which the Company is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50%
of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale to another Person of all or substantially all of its assets in one or a series of related transactions,
(iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person), holders of capital stock tender shares representing more than 50% of the voting power of the capital stock of the Company and the Company or such
other Person, as applicable, accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off
or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the voting power of the capital stock of the Company (except for any such transaction in which the
stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by
Section
9(a)
above) (in any such case, a “
Fundamental Transaction
”), then following such Fundamental Transaction the Holder shall have the right to receive, upon exercise of this Warrant, the same
amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant
Shares then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to
Sections 9(b)
or
9(c)
above) without regard to any limitations on exercise contained herein
(the “
Alternate Consideration
”). The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless
(i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to
Section
10
below or (ii) prior to or simultaneously with the
consummation thereof, 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 (d) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type.
5
(e)
Number of Warrant Shares
. Simultaneously with any adjustment to the Exercise
Price pursuant to
Section
9
, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price
payable hereunder for the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
(f)
Calculations
. All calculations under this
Section
9
shall be made to the nearest
one-tenth
of one cent or the nearest share, as applicable.
(g)
Notice of Adjustments
. Upon the
occurrence of each adjustment pursuant to this
Section
9
, the Company at its expense will, at the written request of the Holder, promptly compute such adjustment, in good faith, in accordance with the terms of this Warrant
and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Transfer Agent.
(h)
Notice of Corporate Events
. If, while this Warrant is outstanding, the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any subsidiary,
(ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company,
then the Company shall deliver to the Holder a notice of such transaction at least ten (10) days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect
to such transaction;
provided, however
, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice. In addition, if while this Warrant is
outstanding, the Company authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction contemplated by
Section
9(d)
, other than a Fundamental Transaction
under clause (iii) of
Section
9(d),
the Company shall deliver to the Holder a notice of such Fundamental Transaction at least thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder
agrees to maintain any information disclosed pursuant to this
Section
9(h)
in confidence until such information is publicly available, and shall comply with applicable law with respect to trading in the Company’s
securities following receipt of any such information.
10.
Payment of Exercise Price
. Notwithstanding anything contained herein to the contrary,
the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities
effected pursuant to Section 3(a)(9) of the Securities Act, as determined as follows:
X = Y
[(A-B)/A]
where:
“X” equals the number of Warrant Shares to be issued to the Holder;
“Y” equals the total number of Warrant Shares with respect to which this Warrant is then being exercised;
“A” equals the Closing Sale Price of the shares of Common Stock (as reported by Bloomberg Financial Markets) as of the Trading Day
on the date immediately preceding the Exercise Date; and
“B” equals the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged
that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was
originally issued (
provided
that the Commission continues to take the position that such treatment is proper at the time of such exercise). In the event that the Registration Statement or another registration statement registering the
issuance of Warrant Shares is, for any reason, not effective at the time of exercise of this Warrant, then the Warrant may only be exercised through a cashless exercise, as set forth in this
Section
10
. Except as set forth in
Section 5(b)
(Buy-In
remedy) and Section 12 (payment of cash in lieu of fractional shares), in no event will the exercise of this Warrant be settled in cash.
6
11.
Limitations on Exercise
.
(a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and
the Holder of the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following
such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of
[4.99%][9.99%][19.99%] (the “
Maximum Percentage
”) of the Common Stock that would be issued and outstanding following such exercise. For purposes of calculating beneficial ownership for determining whether the Maximum
Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned
by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock
which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise
analogous to the limitation contained herein. For purposes of this
Section
11(a)
, beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated
and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of the Warrant may rely on the
number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form
10-K,
Form
10-Q,
Current Report on Form
8-K
or other public filing with the Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the
number of shares of Common Stock outstanding (such issued and outstanding shares, the “
Reported Outstanding Share Number
”). For any reason at any time, upon the written or oral request of the Holder, the Company shall
within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together
with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or
immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding
Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution
Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the
number of shares by which such purchase is reduced, the “
Reduction Shares
”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction
Shares. 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 and the Attribution Parties since the
date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to
beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s,
together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “
Excess Shares
”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the
Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price
paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of the Warrant 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 increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change.
7
(b) This
Section
11
shall not restrict the number of shares of
Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental
Transaction as contemplated in
Section
9(d)
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 or the Attribution Parties 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 and the rules promulgated
thereunder, including Rule
16a-1(a)(1).
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
Section
11(a)
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
Section
11(a)
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.
12.
No Fractional Shares
. No fractional Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of any fractional shares
that would otherwise be issuable, the number of Warrant Shares to be issued shall be rounded down to the next whole number and the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price) for any such fractional
shares.
13.
Notices
. Any and all notices or other communications or deliveries hereunder (including, without limitation, any Exercise Notice)
shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered confirmed
e-mail
at the
e-mail
address specified in the books and records of the Transfer Agent prior to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or
communication is delivered via confirmed
e-mail
at the
e-mail
address specified in the books and records of the Transfer Agent on a day that is not a Trading Day or
later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service specifying next business day delivery, or (iv) upon actual
receipt by the Person to whom such notice is required to be given, if by hand delivery.
14.
Warrant Agent
. The Company shall initially serve as
warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from
any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a
successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the
Holder’s last address as shown on the Warrant Register.
15.
Miscellaneous
.
(a)
No Rights as a Stockholder
. Except as otherwise set forth in this Warrant, the Holder, solely in such Person’s capacity as a
holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose (except to the extent the Holder is required to be deemed a holder of the Warrant Shares for tax
purposes under applicable tax law), nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any
right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.
8
(b)
Authorized Shares
. (i) Except and to the extent as waived or consented to by
the Holder, the Company shall not by any action, including, without limitation, amending its certificate or articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and
non-assessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant.
(ii) Before taking any action which would
result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
(c)
Successors and Assigns
. Subject to compliance with applicable
securities laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company without the written consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on
and inure to the benefit of the Company and the Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal
or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and assigns.
(d)
Amendment and Waiver
. Except as otherwise provided herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder.
(e)
Acceptance
. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions
contained herein.
(f)
Governing Law; Jurisdiction
. This Warrant shall be governed by and interpreted in accordance with the
substantive laws of the State of New York, without regard to its or any other jurisdiction’s choice of law rules. Any and all disputes arising out of, concerning, or related to this Warrant, or to the construction, validity, enforcement and
interpretation thereof, shall be referred to and resolved by the federal courts located in New York, New York or, to the extent no such court has subject matter jurisdiction, the state courts of the State of New York located in New York, New York
(the “
Specified Courts
”). Each of the Company and the Holder irrevocably and unconditionally submits to the exclusive jurisdiction of the Specified Courts, waives any objection to the laying of venue of any suit, action or
proceeding brought in such courts and waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS WARRANT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE THIS WARRANT. THIS SECTION HAS
BEEN FULLY DISCUSSED BY EACH OF THE COMPANY AND THE HOLDER AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH OF THE COMPANY AND THE HOLDER HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
(g)
Headings
. The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
(h)
Severability
. In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby, and the Company and the Holder will attempt in good faith to agree upon a valid and enforceable provision which
shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.
9
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
TYRA BIOSCIENCES, INC.
By:
Name:
Title:
11
SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares of Common Stock under the Warrant]
Ladies and Gentlemen:
(1) The undersigned is the Holder of
Warrant No. __ (the “Warrant”) issued by
TYRA BIOSCIENCES, INC.
, a Delaware corporation (the “
Company
”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set
forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.
(3) The Holder intends that payment of the Exercise Price shall be made as (check one):
☐
Cash Exercise
☐
“Cashless Exercise” under Section 10 of the Warrant
(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $    in
immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver
to the Holder Warrant Shares determined in accordance with the terms of the Warrant.
(6) 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 11(a) of the Warrant to which this notice relates.
Dated:
Name of Holder:
By:
Name:
Title:
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)

----- d102025dex51.htm -----
EX-5.1
4
d102025dex51.htm
EX-5.1
EX-5.1
Exhibit 5.1
12670 High Bluff Drive
San Diego, California 92130
Tel: +1.858.523.5400 Fax: +1.858.523.5450
www.lw.com
FIRM / AFFILIATE OFFICES
Austin
Milan
Beijing
Munich
Boston
New York
Brussels
Orange County
Chicago
Paris
Dubai
Riyadh
September 14, 2026
Düsseldorf
San Diego
Frankfurt
San Francisco
Hamburg
Seoul
Hong Kong
Silicon Valley
Houston
Singapore
London
Tel Aviv
Los Angeles
Tokyo
Madrid
Washington, D.C.
Tyra Biosciences, Inc.
2656
State Street
Carlsbad, California 92008
Re:
Registration Statement on Form
S-3
(No.
333-298911);
9,079,000 shares of Common Stock, par value $0.0001 per share, and
pre-funded
warrants to purchase 9,078,529 shares of Common Stock
To the addressee set forth above:
We have acted as special counsel to Tyra Biosciences, Inc., a Delaware corporation (the “
Company
”), in connection
with
the offering of 9,079,000 shares of common stock of the Company, par value $0.0001 per share (the “
Shares
”) and
pre-funded
warrants to purchase 9,078,529 shares of Common Stock (the “
Pre-Funded
Warrants
”). The offering of the Shares and
Pre-Funded
Warrants were made
under a registration statement on Form
S-3
under the Securities Act of 1933, as amended (the “
Act
”), filed with the Securities and Exchange Commission (the
“
Commission
”) on September 14, 2026 (Registration
No. 333-298911)
(the “
Registration Statement
”), and are being offered pursuant to a base
prospectus dated September 14, 2026 (the “
Base Prospectus
”), and a prospectus supplement dated September 14, 2026 filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus,
the “
Prospectus
”), and pursuant to an underwriting agreement dated September 14, 2026 by and among the Company and Jefferies LLC, Guggenheim Securities, LLC, Cantor Fitzgerald & Co. and Barclays Capital Inc.,
as representatives of the several underwriters listed on
Schedule A
thereto (the “
Underwriting Agreement
”).
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation
S-K
under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the
issue of the Shares,
Pre-Funded
Warrants and the Warrant Shares (as defined below).
September 14, 2026
Page
2
As such counsel, we have examined such matters of fact and questions of law as we have
considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We
are opining herein as to the General Corporation Law of the State of Delaware (the “
DGCL
”), and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:
1.
When the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in
the name or on behalf of the purchasers, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Underwriting Agreement, the issue and sale of the Shares will have been duly
authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.
2.
When the
Pre-Funded
Warrants have been duly issued by the Company
against payment therefor in the circumstances contemplated by Underwriting Agreement, the issue and sale of the
Pre-Funded
Warrants will have been duly authorized by all necessary corporate action of the
Company, and the
Pre-Funded
Warrants will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
3.
When the shares of Common Stock initially issuable upon exercise of the
Pre-Funded
Warrants (the “
Warrant Shares
”) shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the
Pre-Funded
Warrant holders, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the
Pre-Funded
Warrants, the issue of the Warrant Shares will have been duly authorized by all necessary corporate action of the Company and the Warrant Shares will be validly issued, fully paid and
non-assessable.
In rendering the foregoing opinions, we have assumed that (i) the Company will comply with all applicable notice
requirements regarding uncertificated shares provided in the DGCL and (ii) upon the issue of any of the Warrant Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock
that the Company is then authorized to issue under its Amended and Restated Certificate of Incorporation and by the board of directors of the Company in connection with the offering contemplated by the Registration Statement and the Prospectus.
With your consent, we have assumed that the status of the
Pre-Funded
Warrants as legally valid and
binding obligations of the Company is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain
required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
September 14, 2026
Page
3
Our opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization,
preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding in equity or at law
(including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought; and
(iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to
public policy. We express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a
penalty; (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief; (c) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or
public policy; (d) other applicable exceptions; and (e) the severability, if invalid, of provisions to the foregoing effect.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely
upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Company’s Current Report on Form
8-K
dated September 14, 2026 and to the
reference to our firm in the Prospectus under the heading “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 Act or the rules and
regulations of the Commission thereunder.
Sincerely,
/s/ Latham & Watkins LLP

----- d102025dex991.htm -----
EX-99.1
5
d102025dex991.htm
EX-99.1
EX-99.1
Exhibit 99.1
Tyra Announces Pricing of $400 Million Underwritten Offering of Common Stock and
Pre-Funded
Warrants
CARLSBAD, Calif., September
14, 2026
– Tyra Biosciences, Inc.
(Nasdaq: TYRA), a clinical-stage biotechnology company focused on developing next-generation precision medicines that target large opportunities in Fibroblast Growth Factor Receptor (FGFR) biology, today announced the pricing of an underwritten
offering of 9,079,000 shares of its common stock at a price of $22.03 per share and, in lieu of shares of common stock to certain investors,
pre-funded
warrants to purchase 9,078,529 shares of common stock at
a purchase price of $22.029 per share, which equals the offering price per share of the common stock less the $0.001 exercise price per share of each
pre-funded
warrant. All of the shares of common stock and
pre-funded
warrants in the offering are being sold by Tyra. The gross proceeds to Tyra from the offering, before deducting the underwriting discounts and commissions and other offering expenses, are expected to be
approximately $400.0 million. The offering is expected to close on September 15, 2026, subject to the satisfaction of customary closing conditions.
TYRA intends to use the net proceeds from this offering, together with its existing cash, cash equivalents and marketable securities, to advance its
“dabogratinib 3x3” development strategy in
low-grade
upper tract urothelial carcinoma
(LG-UTUC),
intermediate-risk
non-muscle
invasive bladder cancer (IR NMIBC) and achondroplasia (ACH), as well as to support its preclinical and drug discovery programs, working capital and other general corporate purposes.
The offering was led by RA Capital Management, with participation by new and existing institutional investors, including Invus, Commodore Capital, BVF
Partners, Janus Henderson Investors, Trails Edge Capital Partners, Integral Health Asset Management, TCGX, StemPoint Capital LP and multiple large investment management firms.
Jefferies, Guggenheim Securities, Cantor, Barclays and William Blair are acting as joint book-running managers for the offering. Wedbush PacGrow, Raymond
James and Oppenheimer & Co. are acting as lead managers.
The shares of common stock and
pre-funded
warrants described above are being offered by Tyra pursuant to a shelf registration statement on Form
S-3,
including a base prospectus, filed with the Securities and Exchange Commission (SEC) and that became
automatically effective on September 14, 2026. A prospectus supplement and accompanying prospectus relating to this offering will be filed with the SEC. When available, copies of the prospectus supplement and the accompanying prospectus
relating to this offering may be obtained from: Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 520 Madison Avenue, New York, NY 10022, or by telephone at (877)
821-7388,
or by
e-mail
at Prospectus_Department@Jefferies.com; Guggenheim Securities, LLC, Attention: Equity Syndicate Department, 330 Madison Avenue, 8th Floor, New York, NY 10017, by telephone at (212)
518-9544,
or by email at GSEquityProspectusDelivery@guggenheimpartners.com; Cantor Fitzgerald & Co., Attention: Capital Markets, 110 East 59
th
Street,
New York, NY 10022, or by email at prospectus@cantor.com; or Barclays Capital Inc. c/o Broadridge Financial Solutions 1155 Long Island Avenue, Edgewood, NY 11717, by telephone at
1-888-603-5847
or by email at barclaysprospectus@broadridge.com. Electronic copies of the prospectus supplement and accompanying prospectus will also be available on the website of the SEC at
http://www.sec.gov.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be
any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
About Tyra
Tyra Biosciences, Inc. (Nasdaq: TYRA) is a
clinical-stage biotechnology company focused on developing next-generation precision medicines that target large opportunities in FGFR biology. TYRA’s
in-house
precision medicine platform, SNÅP,
enables rapid and precise drug design through iterative molecular SNÅPshots that help TYRA design and predict which candidates may demonstrate the highest potency, selectivity and tolerability in the clinic. TYRA’s expertise in FGFR
biology has created a differentiated pipeline with clinical-stage programs in targeted oncology and genetically defined conditions. TYRA’s lead precision candidate stemming from SNÅP, oral dabogratinib, is a potential
first-in-class
selective FGFR3 inhibitor in development for LG UTUC, IR NMIBC and ACH. TYRA is also developing
TYRA-430,
an oral,
investigational
FGFR4/3-biased
inhibitor for FGF19+/FGFR4- driven cancers, in the SURF431 study for advanced hepatocellular carcinoma, and
TYRA-200,
an oral,
investigational FGFR1/2/3 inhibitor, in the SURF201 study for metastatic intrahepatic cholangiocarcinoma. TYRA is based in Carlsbad, California.
Forward Looking Statements
Tyra cautions you that statements contained in this press release regarding matters that are not historical facts are forward-looking statements. The
forward-looking statements are based on our current beliefs and expectations and include, but are not limited to: our expectations regarding the expected closing of the offering, the anticipated gross proceeds from the offering and the anticipated
use of proceeds therefrom. Actual results may differ from those set forth in this press release due to the risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the offering, as
well as risks and uncertainties inherent in our business described in our prior filings with the SEC, including under the heading “Risk Factors” in our annual report on Form
10-K
for the year ended
December 31, 2025, and any subsequent filings with the SEC. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof, and we undertake no obligation to update such statements to
reflect events that occur or circumstances that exist after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement, which is made under the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995.
Contact:
Amy Conrad
aconrad@tyra.bio