Alector 溢价增发定价：3660万股每股2.05美元募资7503万美元，TCGX/BVF等知名生物科技基金参与，约25%稀释

----- d417912d8k.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):
October 15, 2026
Alector, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware
001-38792
82-2933343
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
131 Oyster Point Blvd.
Suite 600
South San Francisco
,
California
94080
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s Telephone Number, Including Area Code:
(415)
231-5660
(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
ALEC
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
(§ 240.12b-2
of this chapter).
Emerging growth company
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01
Entry into a Material Definitive Agreement.
On October 15, 2026, Alector, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Morgan Stanley & Co. LLC and BTIG, LLC (collectively, the “Underwriters”), relating to the issuance and sale (the “Offering”) of 36,600,000 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at an offering price of $2.05 per share. All of the Shares in the Offering are being sold by the Company.
The gross proceeds from the Offering are expected to be $75,030,000.00 before deducting underwriting discounts and commissions and other offering expenses payable by the Company. The Offering is expected to close on October 19, 2026, subject to the satisfaction of customary closing conditions.
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 of 1933, as amended, 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 such parties.
The Offering is being made pursuant to the Company’s effective registration statement on Form
S-3
(File
No. 333-294241)
(the “Registration Statement”) and a related prospectus and prospectus supplement, in each case filed with the Securities and Exchange Commission.
The foregoing descriptions of the terms of the Underwriting Agreement do not purport to be complete and are each qualified in their entirety by reference to the Underwriting Agreement, which is filed as Exhibit 1.1 hereto and is incorporated herein by reference.
A copy of the opinion of Wilson Sonsini Goodrich & Rosati, P.C. relating to the validity of the Shares is filed as Exhibit 5.1 hereto and is incorporated by reference into the Registration Statement.
Item 8.01
Other Events.
A copy of the press release announcing the pricing of the Offering is attached to this Current Report on Form
8-K
as Exhibit 99.1.
Forward-Looking Statements
Certain of the statements made in this report are forward looking, such as those, among others, relating to the Company’s expectations regarding the timing and completion of the Offering. Actual results or developments may differ materially from those projected or implied in these forward-looking statements. Factors that may cause such a difference include risks and uncertainties related to completion of the public offering on the anticipated terms or at all, market conditions and the satisfaction of customary closing conditions related to the Offering. More information about the risks and uncertainties faced by the Company is contained under the caption “Risk Factors” in the Company’s Annual and Quarterly Reports on Form
10-K
and
10-Q
filed with the Securities and Exchange Commission (the “SEC”), and the Company’s future reports to be filed with the SEC. The Company disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
-2-
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
1.1
Underwriting Agreement, dated as of October 15, 2026, among Alector, Inc. and the Underwriters.
5.1
Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1
Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1)
99.1
Press Release dated October 16, 2026.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
-3-
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 thereunto duly authorized.
ALECTOR, INC.
Date: October 16, 2026
By:
/s/ Neil Berkley
Neil Berkley
Chief Financial Officer and Chief Business Officer
-4-

----- d417912dex11.htm -----
EX-1.1
2
d417912dex11.htm
EX-1.1
EX-1.1
Exhibit 1.1
36,600,000 Shares
ALECTOR, INC.
COMMON
STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
October 15, 2026
October 15, 2026
Morgan Stanley & Co. LLC
BTIG, LLC
As Representatives of the several Underwriters
named in Schedule I hereto.
c/o Morgan
Stanley & Co. LLC
1585 Broadway New York,
New York 10036
c/o BTIG, LLC
65 East 55th Street
New York, New
York 10022
Ladies and Gentlemen:
Alector,
Inc., a Delaware corporation (the “
Company
”), proposes to issue and sell to the several underwriters listed in
Schedule I
hereto (the “
Underwriters
”), for whom Morgan Stanley & Co. LLC and BTIG,
LLC are acting as representatives (the “
Representatives
”), 36,600,000 shares of its common stock, par value $0.0001 per share (the “
Shares
”). The shares of common stock, par value $0.0001 per share, of the
Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “
Common Stock
.
”
The Company has filed with the Securities and Exchange Commission (the “
Commission
”) a shelf registration statement on Form
S-3
(File
No. 333-294241),
including a prospectus, relating to the securities (the “
Shelf Securities
”), including the Shares, to be issued from
time to time by the Company. Such registration statement, as amended at the time it became effective, including the information (if any) deemed to be part of the registration statement pursuant to Rule 430A under the Securities Act of 1933, as
amended (the “
Securities Act
”), is hereinafter referred to as the “
Registration Statement
” and the related prospectus covering the Shelf Securities dated April 30, 2026 in the form first used to confirm sales of
the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “
Basic
Prospectus
.” The
Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “
Prospectus
,” and the term “
preliminary prospectus
” means any preliminary form of the Prospectus. If the Company has
filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the “
Rule
462
Registration
Statement
”), then any
reference herein to the term “
Registration Statement
” shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Agreement, “
free writing prospectus
” has the meaning
set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus
” means the Prospectus together with the documents and pricing information set forth in
Schedule II
hereto, and “
broadly available road
show
” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms
“
supplement
,
” “
amendment
” and “
amend
” as used herein with respect to the Registration Statement, the Prospectus, the Time of Sale Prospectus or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), that are deemed to be incorporated by reference therein.
1.
Representations and Warranties
. The Company represents and warrants to and agrees with each of the Underwriters that:
(a)
Compliance with Registration Requirements
. The Registration Statement has become effective; no stop order suspending
the effectiveness of the Registration Statement is in effect; and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the Knowledge (as defined below) of the Company, threatened by the
Commission. The sale of the Shares hereunder meets the requirements of General Instruction I.B.1 of Form
S-3.
(b)
Securities Act and Exchange Act Compliance
. (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder,
(ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not, as of the date of such amendment or supplement, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, as of the date of such
amendment or supplement, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares
in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable,
will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road
show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (vi) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement or as of the Closing Date, any
untrue statement of
2
a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished in writing by the Underwriters through the Representatives consists of the
Underwriter Information (as defined below). Each document filed pursuant to the Exchange Act, and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder.
(c)
Compliance of
preliminary prospectus
.
Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder.
(d)
No Misstatement or
Omission
. As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of the Time of Sale Prospectus, any free writing prospectus, when considered together
with the Time of Sale Prospectus, and any individual
Testing-the-Waters
Communication, when considered together with the Time of Sale Prospectus, 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.
(e)
Offering Materials Furnished to the Representatives and the Underwriters
. The Company has delivered to each
Representative one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representatives reasonably requested. The Registration Statement, the Prospectus and any free writing prospectuses, if any, identified in
Schedule II
hereto, (to the extent any such
free writing prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Shares contemplated herein have been and will be identical to the versions of such documents
transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation
S-T.
(f)
Free Writing Prospectus
. The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is
3
required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or, if filed after the effective date of
this Agreement, will comply as of the date of such filing, in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in
Schedule II
hereto, and electronic road shows, if any, furnished to and approved by the Representatives, the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(g)
Emerging Growth Company
. The Company is not an “emerging growth company,” as defined in
Section 2(a) of the Securities Act.
(h)
Distribution of Offering Material by the Company
. The Company
(i) has not alone engaged in any
Testing-the-Waters
Communication with any person and (ii) has not authorized anyone to engage in
Testing-the-Waters
Communications. The Company has not distributed any
Testing-the-Waters
Communication that is a written communication within the meaning of Rule 405 under the Securities Act. “
Testing-the-Waters
Communication
” means
any communication with potential investors undertaken in reliance on Section 5(d) or Rule 163B of the Securities Act.
(i)
The Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(j)
Authorization of the Common Stock
. The authorized capital stock of the Company conforms as to legal matters in all
material respects to the description thereof contained in, or incorporated by reference into, each of the Registration Statement, the Time of Sale Prospectus and the Prospectus. The Shares have been duly authorized and, when paid for, issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non-assessable,
and the issuance of the Shares will not be subject to any preemptive or similar rights.
(k)
Disclosure
. The statements set forth in the Time of Sale Prospectus and the Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the capital stock of the Company, under the caption “Material U.S. Federal Income Tax Consequences for
Non-U.S.
Holders”, and under the caption “Underwriting”, are accurate, complete and fair in all material respects.
(l)
No Applicable Registration or Other Similar Rights
. There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, except as otherwise have been validly waived or complied with in connection with the issuance and sale of the Shares contemplated hereby.
4
(m)
No Material Adverse Change
. There has not occurred any material
adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries (as defined below), taken as a whole, (a
“
Material Adverse Change
”) from that set forth in the Time of Sale Prospectus.
(n)
Independent Accountants
. Ernst & Young LLP, which has certified certain financial statements of the Company and its Subsidiaries, is an independent registered public accounting firm with respect to the Company and its Subsidiaries
within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act and the Exchange Act.
(o)
Preparation of the Financial Statements
. The financial statements (including the related notes thereto) of the
Company and its consolidated Subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Securities
Act and present fairly in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby; and the other financial information included in the
Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its Subsidiaries and presents fairly in all material respects the information shown thereby.
(p)
XBRL
. The interactive data in eXtensible Business Reporting Language 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.
(q)
Incorporation and
Good Standing
of the Company and its Subsidiaries
. The Company has been duly
incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole. Each subsidiary of the Company (each a
“
Subsidiary
”) has been duly organized, is validly existing and in good standing under the laws of the State of Delaware, has the corporate or other organizational power and authority to own or lease its property and to
conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the
5
Company and its Subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and
non-assessable
and are owned directly by the Company or a Subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the
Registration Statement and the Prospectus.
(r)
Capital Stock Matters
. The shares of Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(s)
Non-Contravention
of Existing Instruments; No Further Authorizations or
Approvals Required
. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of (i) applicable law, (ii) the certificate of
incorporation or bylaws of the Company, (iii) any agreement or other instrument binding upon the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the Company or any Subsidiary, except, in the cases of clauses (i), (iii), and (iv), as would not reasonably be likely to have a material adverse effect on the Company and its
Subsidiaries, taken as a whole or adversely affect the ability of the Company to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement, except such as may have been previously obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the
Shares.
(t)
No Material Actions or Proceedings
. There are no legal or governmental proceedings pending or, to the
knowledge of the Company (“
Knowledge
”), threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties of the Company or any of its Subsidiaries is subject (i) other than
proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not reasonably be expected to have a material adverse effect on the Company
and its Subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and
the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(u)
All
Necessary Permits
, etc
. The Company and its Subsidiaries possess all certificates, authorizations
and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to
6
the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its Subsidiaries, taken as a whole, except as described in the Registration Statement, the Time of Sale Prospectus and Prospectus.
(v)
Regulatory Matters
. The Company and its Subsidiaries have operated at all times and are currently in compliance with
all applicable statutes, rules, regulations and policies of the U.S. Food and Drug Administration (the “
FDA
”) and applicable foreign regulatory authorities, including the European Medicines Agency and the UK
Medicines & Healthcare products Regulatory Agency (collectively, the “
Regulatory Authorities
”), except where failure to be in compliance would not reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries, taken as a whole, including, without limitation the following, as applicable:
(i) the
Federal Food, Drug, and Cosmetic Act and the regulations promulgated thereunder;
(ii) all applicable federal, state, local
and foreign health care laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C.
Section 1320a-7b(b)),
the Civil Monetary Penalties Law (42 U.S.C. §
1320a-7a),
the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), all applicable federal, state, local and all foreign criminal laws relating to health care fraud and abuse, including but not limited
to the U.S. False Statements Law (42 U.S.C.
Section 1320a-7b(a)),
18 U.S.C. Sections 286 and 287, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and
Accountability Act of 1996 (“
HIPAA
”) (42 U.S.C. Section 1320d et seq.), the exclusion laws, the statutes, regulations and directives of applicable government funded or sponsored healthcare programs, and the regulations
promulgated pursuant to such statutes;
(iii) the Standards for Privacy of Individually Identifiable Health Information,
the Security Standards, and the Standards for Electronic Transactions and Code Sets promulgated under HIPAA, the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations
promulgated thereunder and any state or
non-U.S.
counterpart thereof or any other law or regulation the purpose of which is to protect the privacy of individuals or prescribers;
(iv) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of
2010, the regulations promulgated thereunder;
(v) the U.S. Controlled Substances Act (21 U.S.C. Section 801 et seq.);
(vi) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws or
regulatory bodies; and
7
(vii) all other local, state, federal, national, supranational and foreign
laws, relating to the regulation of the Company or its Subsidiaries and the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or
disposal of any product under development, manufactured or distributed by the Company (clauses (i) through (vii), collectively, “
Health Care Laws
”).
(w)
Company Tests and Trials
. (i) Except as would not reasonably be expected to result in a Material Adverse Change
the Company and its Subsidiaries, the studies, tests and preclinical and clinical trials conducted by or, to the Knowledge of the Company, any studies tests and preclinical and clinical trials conducted on behalf of or sponsored by the Company or
its Subsidiaries or in which the Company or its Subsidiaries have participated, were, and if still pending are, being conducted in accordance with standard medical and experimental protocols, procedures and controls pursuant to accepted professional
scientific research standards and procedures, and all applicable Health Care Laws, the rules and regulations of the Regulatory Authorities and current Good Clinical Practices and Good Laboratory Practices; (ii) the descriptions of the results
of such studies and trials contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurate and complete in all material respects and fairly present the data derived from such trials and studies; (iii) the
Company has no Knowledge of any other studies or trials not described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the results of which the Company reasonably believes are inconsistent with or call into question the
results described or referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus; (iv) the Company has provided the Representatives with all material substantive written notices, correspondence and summaries of all
other material communications provided to the Company or its Subsidiaries from the Regulatory Authorities; and (v) neither the Company nor any of its Subsidiaries have received any written notices, correspondence or other communications from
any Regulatory Authority or any other governmental entity requiring or threatening the termination, modification or suspension of any studies or trials that are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or the results of which are referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and, to the Company’s Knowledge, there are no reasonable grounds for the same.
(x)
Required Reports and Records
. (i) the Company and its Subsidiaries have filed, obtained, maintained or
submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were, in all material respects, timely, complete, accurate and not misleading on the date filed (or were corrected or supplemented by a subsequent submission); (ii) neither the Company nor its Subsidiaries
have received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or Regulatory Authority, other governmental entity or third party alleging that any
Company, Subsidiary, or product operation or activity is in violation of any Health Care
8
Laws, including, without limitation, any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the FDA or any other Regulatory Authority
or governmental entity, nor, to the Company’s Knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened; (iii) neither the Company nor its Subsidiaries are a party
to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any Regulatory Authority or other governmental entity; and (iv) neither the Company, its Subsidiaries nor
any of their respective employees, officers or directors 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 subject to an inquiry,
investigation, proceeding or other similar action by a Regulatory Authority or other governmental entity that could reasonably be expected to result in debarment, suspension, or exclusion.
(y)
Tax Law Compliance
. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax
returns required to be filed through the date of this Agreement or have obtained extensions thereof (except where the failure to file would not, individually or in the aggregate, reasonably be expected to have a material adverse effect) and have
paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not, individually or in the aggregate, reasonably be expected to have a material adverse effect, or, except as currently being contested in good
faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no unpaid tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had (nor does the
Company nor any of its Subsidiaries have any notice or Knowledge of any unpaid tax deficiency which could reasonably be expected to be determined adversely to the Company or its Subsidiaries and which could reasonably be expected to have) a material
adverse effect.
(z)
Company Not an
“
Investment Company
”. The Company is not, and after
giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the each of the Registration Statement, the Time of Sale Prospectus and the Prospectus will not be, required to register as an
“investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(aa)
Insurance
. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as, in the Company’s reasonable judgment, are prudent and customary in
the businesses in which they are engaged; neither the Company nor any of its Subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its Subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a material
adverse effect on the Company and its Subsidiaries, taken as a whole, except as described in the Registration Statement and Prospectus.
9
(bb)
No Unlawful Contributions or Other Payments
. (i) None of
the Company or its Subsidiaries or controlled affiliates, or any director, officer, or employee of the Company nor, to the Company’s Knowledge, any agent or representative of the Company or of any of its Subsidiaries or affiliates, has taken
any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any
officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official
or candidate for political office) in order to improperly influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) neither the Company nor any Subsidiary nor any director, officer or employee of the
Company or any Subsidiary nor, to the Company’s Knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom,
or any other applicable anti-bribery or anti-corruption law (collectively, “
Anti-Corruption Laws
”), (B) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly or indirectly, to
any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient or securing any improper advantage, or (C) made any payment of funds of the Company or any Subsidiary or received or retained any
funds in violation of any Anti-Corruption Laws; (iii) the Company and its Subsidiaries and affiliates have conducted their businesses in compliance with all applicable Anti-Corruption Laws and have instituted and maintained and will continue to
maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iv) neither the Company nor its Subsidiaries will use, directly or
indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
(cc)
Compliance with Money Laundering Laws
. The operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “
Anti-Money Laundering Laws
”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Knowledge of the Company, threatened.
10
(dd)
Compliance with OFAC
. (i) None of the Company, any of its
Subsidiaries, or any director, officer, or employee thereof, or, to the Company’s Knowledge, any agent, controlled affiliate or representative of the Company or any of its Subsidiaries, is an individual or entity
(“
Person
”) that is, or is owned or controlled by one or more Persons that are:
(A) the subject
or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of Treasury’s Office of Foreign Assets Control (“
OFAC
”), the United Nations Security
Council, the European Union, the United Kingdom government (including the Foreign, Commonwealth & Development Office), or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated
Nationals and Blocked Persons List, OFAC’s Foreign Sanctions Evaders List or other similar applicable legislation or rules (collectively, “
Sanctions
”), or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation,
the so-called Donetsk People’s Republic, the
so-called
Luhansk People’s Republic, the Crimea Region and the
non-government
controlled areas of the
Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea and Syria) (each a “
Sanctioned Country
”).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any
activities of or business (1) with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject or target of Sanctions, (2) in or involving a country or territory which at the time of such
funding is the subject of country-wide or territory-wide Sanctions or is a Sanctioned Country; or
(B) in any other manner
that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Since April 24, 2019, the Company and its Subsidiaries have not knowingly engaged in, are not now knowingly engaged
in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.
11
(ee)
Company
’
s Accounting System
. The Company and
each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and
(v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement is accurate. Except as described in the Time of Sale Prospectus and the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ff)
Disclosure Controls
. The Company maintains an effective system of “disclosure controls and procedures”
(as defined in Rule
13a-15(e)
of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule
13a-15
of the Exchange Act and such disclosure controls and procedures were effective as of the end of the Company’s most recently completed fiscal quarter.
(gg)
Compliance with Environmental Laws
. The Company and its Subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental
Laws
”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for
clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole.
12
(hh)
Intellectual Property
. Except as would not reasonably be
expected to have a material adverse effect, the Company and its Subsidiaries own or possess or have the right to use, or can acquire on commercially reasonable terms, adequate rights to use all material patents, patent rights, licenses, inventions,
copyrights,
know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names, domain names
and other source indicators, and other intellectual property and similar rights, including registrations and applications for registration thereof (collectively “
Intellectual Property Rights
”) necessary to the conduct of
the business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, now operated or currently contemplated to be conducted by them. Each material application or registration owned by or exclusively licensed to
the Company or its Subsidiaries is being diligently prosecuted, and all other material Intellectual Property Rights owned by or exclusively licensed to the Company or its Subsidiaries is being diligently maintained. Except as described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus, to the Company’s Knowledge, neither the Company nor any of its Subsidiaries has infringed, misappropriated, or otherwise violated the Intellectual Property Rights of any
third party in any material respect, and neither the manufacture of, nor the use or sale of, any of the Company’s or any of its Subsidiaries’ products or contemplated products would infringe or otherwise violate the Intellectual Property
Rights of any third party in any material respect. Except as disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and except as would not, individually or in the aggregate, have a material adverse effect on the
Company or any of its Subsidiaries, (i) to the Company’s Knowledge, there are no rights of third parties to any of the Intellectual Property Rights owned or purported to be owned by the Company or its Subsidiaries except for rights
explicitly granted to third parties through licenses granted by the Company, (ii) to the Company’s Knowledge, there is no material infringement, misappropriation, breach, default or other violation, or the occurrence of any event that
with notice or the passage of time would constitute any of the foregoing, by any third party of any of the Intellectual Property Rights of the Company or any of its Subsidiaries, (iii) none of the Intellectual Property Rights used or held for
use by the Company or any of its Subsidiaries has been obtained or is being used or held for use by the Company or any of its Subsidiaries in material violation of any contractual obligation binding on the Company or any of its Subsidiaries or, to
the Company’s Knowledge, in violation of any rights of any third party, (iv) the Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Intellectual
Property Rights the value of which to the Company or any Subsidiary is contingent upon maintaining the confidentiality thereof, (v) to the Company’s Knowledge, all Intellectual Property Rights owned by or exclusively licensed to the
Company or any of its Subsidiaries are valid and enforceable, and (vi) there is no pending or, to the Company’s Knowledge, threatened action, suit, proceeding or claim by any third party (A) challenging the Company’s or any of
its Subsidiaries’ rights in or to, or alleging the violation of any of the terms of, any of the Company’s or its Subsidiaries’ Intellectual Property Rights, (B) challenging the validity, enforceability or scope of any
Intellectual Property Rights owned by or exclusively licensed to the Company or any of its Subsidiaries, or (C) alleging that the Company or any of its Subsidiaries has infringed, misappropriated or otherwise violated or conflicted with any
Intellectual Property Rights of any third party, and in the case of each of clauses (A), (B) and (C) above, the Company is unaware of any fact which would form a reasonable basis for any such action, suit, proceeding or claim.
13
(ii)
Listing
. The Company is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market LLC (“
Nasdaq
”), and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from
Nasdaq, nor has the Company received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. All of the Shares that have been or may be sold under this Agreement have been approved for listing on
Nasdaq, subject to official notice of issuance; the Company has taken all necessary actions to ensure that, upon and at all times after Nasdaq shall have approved the Shares for listing, it will be in compliance with all applicable corporate
governance requirements set forth in Nasdaq’s listing rules that are then in effect.
(jj)
Brokers
. Except
pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(kk)
No Outstanding Loans or Other Indebtedness
. Except as described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, there are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of the members of any of them.
(ll)
No Reliance
. The Company has not relied upon
any Underwriter or legal counsel for the Underwriters for any legal, tax or accounting advice in connection with the offering and sale of the Shares.
(mm)
FINRA Exemption
. As of the date hereof, the Company qualifies as an “experienced issuer” (within the
meaning of the Financial Industry Regulatory Authority (“
FINRA
”) Rule 5110(j)(6)) for purposes of the exemption from filing under FINRA Rule 5110(h)(1)(C).
(nn)
Compliance with Laws
. The Company has not been advised, and has no reason to believe, that it and each of its
Subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, except where failure to be so in compliance would not result in a Material Adverse
Change.
(oo)
Privacy Laws
. (i) Except as would not reasonably be expected to have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, the Company and each of its Subsidiaries have complied and are presently in compliance with all applicable internal and external privacy policies, contractual obligations,
14
applicable laws, statutes, judgments, orders, rules and regulations of any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case relating
to the collection, use, transfer, import, export, storage, protection, disposal, disclosure or other processing by the Company or any of its Subsidiaries of personal, personally identifiable, household, sensitive, confidential or regulated data or
information (“
Data Security Obligations
”, and such data “
Personal Data
”); (ii) the Company and its Subsidiaries have not received any written notification or complaint alleging, any material
non-compliance
by the Company, any of its Subsidiaries or third parties acting on the Company’s or its Subsidiaries’ behalf with any Data Security Obligation; and (iii) there is no action, suit or
proceeding by or before any court or governmental agency, authority or body pending or, to the Company’s Knowledge, threatened, alleging
non-compliance
by the Company, any of its Subsidiaries or third
parties acting on the Company’s or its Subsidiaries’ behalf with any Data Security Obligation.
(pp)
IT
Systems
. Except as would not reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole, (i) the Company and each of its Subsidiaries have implemented appropriate technical and
organizational measures designed to protect the information technology systems and Personal Data used in connection with the Company’s and its Subsidiaries’ businesses, including having established, maintained, implemented and complied
with reasonable information technology, information security, cybersecurity and data protection controls, policies and procedures that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access,
disablement, misappropriation or modification, or other compromise or misuse of any information technology system or Personal Data in the possession or control of the Company or its Subsidiaries and used in connection with the operation of the
Company’s and its Subsidiaries’ businesses (“
Breach
”); and (ii) to the Company’s Knowledge, there has been no such Breach and the Company and its Subsidiaries have not been notified in writing of any such
Breach.
(qq)
Export and Import Laws
. Each of the Company and the Subsidiaries, and, to the Company’s
Knowledge, each of their affiliates and any director, officer, agent or employee of, or other person associated with or acting on behalf of, the Company has acted at all times in compliance, in all material respects, with applicable Export and
Import Laws (as defined below) and there are no material claims, complaints, charges, investigations or proceedings pending or expected or, to the Knowledge of the Company, threatened between the Company or any of the Subsidiaries and any
governmental authority under any Export or Import Laws. The term “
Export and Import Laws
” means the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act of 1979, as amended,
the Export Administration Regulations, and all other laws and regulations of the United States government regulating the provision of services to
non-U.S.
parties or the export and import of articles or
information from and to the United States of America, and all similar laws and regulations of any foreign government regulating the provision of services to parties not of the foreign country or the export and import of articles and information from
and to the foreign country to parties not of the foreign country.
15
(rr)
Real and Personal Property
. Neither the Company nor its
Subsidiaries own any real property. The Company and its Subsidiaries have good and marketable title to all personal property (other than intellectual property, which is addressed exclusively in
Section
1(hh)
) owned by them
which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or such as do not materially
affect the value of such property and do not interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and
its Subsidiaries are held by them under valid, subsisting and, to the Knowledge of the Company, enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its Subsidiaries, in each case except as described in the Time of Sale Prospectus.
(ss)
Compliance with ERISA
. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), for which the Company or any member of
its “Controlled Group” (for the purpose of this
Section
1(ss)
, “
Controlled Group
” is defined as any entity, whether or not incorporated, that is under common control with the Company
within the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended (the
“
Code
”)) would have any liability (each, a “
Plan
”) has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory
or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the
minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of
Section 303(i) of ERISA) and no Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within the meaning of Sections 304
and 305 of ERISA) (v) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable”
event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified, and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification; (viii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to
incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without default) in respect of a Plan (including a “multiemployer
plan” within the meaning of Section 4001(a)(3) of ERISA); and (ix) none of the following events has
16
occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its Controlled Group affiliates
in the current fiscal year of the Company and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group affiliates’ most recently completed fiscal year; or (B) a
material increase in the Company and its Subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic
715-60)
compared to the
amount of such obligations in the Company and its Subsidiaries’ most recently completed fiscal year, except in each case with respect to the events or conditions set forth in (i) through (ix) hereof, as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect.
(tt)
Sarbanes-Oxley Act
. There is and has been
no failure on the part of the Company or any of its Subsidiaries or, to the Company’s Knowledge, any of their officers or directors, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act
”) then applicable to the Company or any of its Subsidiaries, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(uu)
Statistical and Market Data
. The statistical, industry-related and market-related data
included in the Registration Statement, the Time of Sale Prospectus and 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, such data is
consistent with the sources from which they are derived, and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(vv)
No Acquisitions or Dispositions
. Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its Subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the
Company has not purchased any of its outstanding capital stock other than from employees or other service providers in connection with such person’s termination of services from the Company or its Subsidiaries pursuant to equity compensation
plans or agreements described in the Time of Sale Prospectus or in exercise of the Company’s right of first refusal upon a proposed transfer, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock (other than the exercise of equity awards or grants of equity awards or forfeiture of equity awards outstanding as of such
respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, in each case granted pursuant to the equity compensation plans described in the Time of Sale Prospectus),
short-term debt or long-term debt of the Company and its Subsidiaries, taken as a whole.
17
(ww)
Labor Disputes
. No material labor dispute with the employees of
the Company or any of its Subsidiaries exists, except as described in the Time of Sale Prospectus, or, to the Knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its Subsidiaries, taken as a whole.
(xx)
Outbound Investment Rules
. Neither the Company nor any of its Subsidiaries is a “covered foreign
person” as that term is used in the Outbound Investment Rules (as defined below). Neither the Company nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (i) a
“covered activity” or a “covered transaction,” as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered
transaction,” as each such term is defined in the Outbound Investment Rules, if the Company were a U.S. Person (as defined below) or (iii) any other activity that would cause the Underwriters to be in violation of the Outbound Investment
Rules or cause the Underwriters to be legally prohibited by the Outbound Investment Rules from performing under this Agreement. For purposes of this Section 1(xx), “
Outbound Investment Rules
” means the regulations
administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation as of the date of this Agreement, and as
codified at 31 C.F.R. §850.202 et seq. and “
U.S. Person
” means any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including
any foreign branch of any such entity, or any person in the United States.
Any certificate signed by an officer of the Company and delivered to any
Underwriter or to counsel for the Underwriter pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Company to the Underwriters as to the matters set forth therein.
The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 5 hereof, counsel to the Company and
counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
2.
Agreements to Sell and Purchase.
The Company hereby agrees to sell to the Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase from the Company the number of Shares set forth in
Schedule
I
hereto opposite its name at $1.927 a share
(the “
Purchase Price
”).
3.
Terms of Public Offering
. The Representatives hereby advise the Company that the
Underwriters intend to make a public offering of the Shares as soon after this Agreement becomes effective as, in the judgment of the Representatives, is advisable. The Company is further advised by the Representatives that the Shares are to be
offered to the public on the terms set forth in the Registration Statement, Time of Sale Prospectus and the Prospectus.
18
4.
Payment and Delivery.
Payment for the Shares shall be made to the Company in
Federal or other funds immediately available in New York City to the account specified by the Company to the Representatives against delivery of such Shares to the Representatives for the accounts of the several Underwriters at 10:00 a.m., New York
City time, on October 19, 2026, or at such other time on the same or such other date, not later than October 19, 2026, as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to
as the “
Closing Date
.”
The Shares shall be registered in such names and in such denominations as the Representatives
shall request in writing not later than one full business day prior to the Closing Date. The Shares shall be delivered to the Representatives for the accounts of the several Underwriters on the Closing Date with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriter duly paid, against payment of the Purchase Price therefor. Delivery of the Shares shall be made through the facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
5.
Conditions to the Underwriters Obligations
. The obligations of the Underwriters are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose
or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii)
there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded
any of the securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Sections 5(a)(i) and 5(a)(ii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
19
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Representatives shall have received a certificate, dated the date hereof,
of the principal financial officer of the Company in form and substance reasonably satisfactory to the Representatives. On the Closing Date, the Representatives shall have received from the principal financial officer of the Company a certificate,
dated as of the Closing Date, to the effect that he or she reaffirms the statements made in the certificate furnished pursuant to Section 5(c) hereof
(d) The Representatives shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter
of Wilson Sonsini Goodrich & Rosati, Professional Corporation (“
WSGR
”), outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received on the Closing Date opinions of Morrison & Foerster LLP and Sterne,
Kessler, Goldstein & Fox PLLC, outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Representatives shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter
of Davis Polk & Wardwell LLP (“
Davis Polk
”), counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives.
With respect to Section 5(d) above, WSGR may state that their opinions and beliefs are based upon their participation in the preparation
of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With
respect to Section 5(f) above, Davis Polk may state that their opinions and beliefs are based upon their participation in the preparation of the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto (other than
the documents incorporated by reference) and upon review and discussion of the contents thereof (including documents incorporated by reference), but are without independent check or verification, except as specified.
The opinion and negative assurance letter of WSGR described in Section 5(d) and the opinions of Morrison & Foerster LLP and
Sterne, Kessler, Goldstein & Fox PLLC described in Section 5(e) above shall be rendered to the Representatives at the request of the Company and shall so state therein.
(g) The Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from Ernst & Young LLP, independent public accountants, 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 Time of Sale Prospectus and the Prospectus;
provided
that
the letter delivered on the Closing Date shall use a
“cut-off
date” not earlier than the date hereof.
20
(h) The
“lock-up”
agreements, each substantially in the form of
Exhibit A
hereto, between you and certain officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to
you on or before the date hereof, shall be in full force and effect on the Closing Date.
6.
Covenants of the Company
. The Company
covenants with each Underwriter as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00 a.m.
New York City time on the second business day succeeding the date of this Agreement and during the period when a prospectus relating to the Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule
172 under the Securities Act or any similar rule) in connection with sales of the Shares, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement,
the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within
the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred
to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not
to take any action that would result in any Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to
solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information
contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Time of Sale
21
Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such
period after the first date of the public offering of the Shares as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with
applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request; provided, however, that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, execute a general consent to service of process in any jurisdiction or to
subject itself to taxation in any jurisdiction in which it is not otherwise subject.
(h) To make generally available to
the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the
registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any
free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
22
costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in
Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, provided, that the
amount of such fees and disbursements of counsel to be paid by the Company shall not exceed $2,500 in the aggregate, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority, provided, that the amount of such fees and disbursements of counsel to be paid by the Company shall not exceed $10,000 in the aggregate,
(v) all costs and expenses incident to listing the Shares on the Nasdaq Global Select Market, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with
the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other
costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section 6, Section 8 entitled
“Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they may make.
(j) If at any time following the
distribution of any
Testing-the-Waters
Communication that is a written communication within the meaning of Rule 405 under the Securities Act there occurred or occurs an
event or development as a result of which such
Testing-the-Waters
Communication 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
Testing-the-Waters
Communication to eliminate or correct such untrue statement or omission.
(k) Reserved.
23
(l)
(i) To not, without the prior written consent of the Representatives, during the period ending on and including the 30th day
after the date of the Prospectus (the “
Restricted Period
”), (A) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (B) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (C) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
(ii) The restrictions contained in the preceding paragraph shall not apply to (A) the Shares to be sold hereunder,
(B) the issuance by the Company of shares of Common Stock upon the exercise (including any net exercise) of an option or warrant or the conversion of a security outstanding on the date hereof and described in the Time of Sale Prospectus,
(C) the issuance by the Company of options, restricted stock units or restricted stock awards (including the Common Stock issued upon the settlement or exercise thereof) to employees, officers, directors, advisors, or consultants of the Company
pursuant to employee benefit plans (including equity incentive plans) described in the Time of Sale Prospectus and the Prospectus,
provided
that, prior to the issuance of any such options, restricted stock units or restricted stock awards,
the Company shall cause each recipient of such securities who is a director or executive officer of the Company to execute and deliver a
lock-up
agreement substantially in the form of Exhibit A hereto,
(D) the filing by the Company of registration statements on Form
S-8
with respect to employee benefit plans (including any employee benefit plans assumed pursuant to clause (F)), (E) the establishment of
a trading plan pursuant to Rule
10b5-1
under the Exchange Act for the transfer of shares of Common Stock,
provided
that (1) such plan does not provide for the transfer of Common Stock during the
Restricted Period and (2) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a
statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period, (F) the issuance by the Company of shares of Common Stock or securities convertible into, exchangeable for, or that represent the
right to receive Common Stock in connection with (1) the acquisition by the Company or any of its Subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan
assumed by the Company in connection with such acquisition, (2) the Company’s joint ventures, equipment leasing arrangements, licensing transactions, collaborations, debt
24
financings and other strategic transactions or (G) a
“sell-to-cover”
transaction in connection
with the vesting and settlement of restricted stock units pursuant to employee benefit plans (including equity incentive plans) described in the Time of Sale Prospectus and the Prospectus, to satisfy applicable tax withholding obligations; provided
that the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clause (F) shall not exceed 5% of the total number of shares of Common Stock outstanding immediately following the
completion of the transaction contemplated by this Agreement and the Company shall cause each recipient of such securities to execute and deliver to the Representatives, on or prior to the issuance of such securities, a
lock-up
agreement substantially in the form of
Exhibit A
hereto.
7.
Covenants of the
Underwriters
. Each Underwriter, severally and not jointly, covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or
on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of such Underwriter.
8.
Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors,
officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of the Underwriters within the meaning
of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) that arise out of, or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or
any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act,
any road show as defined in Rule 433(h) under the Securities Act (a “road show”), the Prospectus or any amendment or supplement thereto, or any
Testing-the-Waters
Communication, or arise out of, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon any such untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished in writing by the
Underwriters through the Representatives consists of the Underwriter Information.
(b) Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to the Underwriters, but only with reference to information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement,
25
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, the Prospectus or any amendment or supplement thereto, or any Testing the Waters
Communication; it being understood and agreed that the only such information furnished in writing by any such Underwriter through the Representatives consists of the following information in the Prospectus (collectively, the “
Underwriter
Information
”): the statement set forth in the first sentence under the caption “Underwriting—Price Stabilization; Short Position and Other Transactions” in the Prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “
indemnified party
”) shall promptly notify the person against whom such indemnity may be sought (the “
indemnifying party
”) in
writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (A) such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
26
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (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 Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(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 that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. 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 the untrue or alleged untrue statement of a material fact or the 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 Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable
if contribution pursuant to this Section 8 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 that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that the Underwriters have otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
27
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriters, the directors, officers, employees and agents of the Underwriters, any person controlling the Underwriters or any affiliate of the Underwriters or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
9.
Termination
.
The Representatives may terminate this Agreement at their discretion by notice given to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (a) trading generally shall have been suspended or
materially limited on, or by, as the case may be, any of the New York Stock Exchange or the Nasdaq Global Market, (b) trading of any securities of the Company shall have been suspended on any exchange or in any
over-the-counter
market, (c) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (d) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or (e) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, singly or together with any other event specified in this clause (e), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery
of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10.
Effectiveness;
Defaulting Underwriter
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on
the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth
of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions
that the number of Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Shares set forth opposite the names of all such
non-defaulting
Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date;
provided
that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth
of such number of Shares without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with respect to which such default occurs is more than
one-tenth
of the aggregate
number of Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any
non-defaulting
28
Underwriter or the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the
Representatives because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters for all
out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement or the offering contemplated hereunder.
11.
Entire Agreement
.
(a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the
Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares, including with respect to the determination of
the public offering price of the Shares and any related discounts and commissions: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the
Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those
of the Company and (iv) 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. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
12.
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.
29
For purposes of this Section 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, 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.
13.
Counterparts
. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed copy of this Agreement by one party to the other may be made by facsimile or other electronic transmission
(including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
14.
Applicable Law
. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
15.
Headings
. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of this Agreement.
16.
Notices
. All notices and other
communications hereunder shall be in writing and shall be deemed to have been duly given if mailed (including by electronic mail) or transmitted by any standard form of telecommunication and effective only upon receipt. Notices to the Underwriters
shall be directed to: Morgan Stanley & Co. LLC, at 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department; and BTIG, LLC at 65 East 55th Street, New York, New York 10022,
Attention: Equity Capital Markets ([***]) and Michael Passaro ([***]), with a copy which shall not constitute notice to: General Counsel ([***]); and if to the Company shall be delivered, mailed or sent to Alector, Inc., 131 Oyster Point Blvd, Suite
600, South San Francisco, California 94080, attention: Neil Berkley, email: [***], with a copy to Wilson Sonsini Goodrich & Rosati, P.C., attention: Michael Coke, email: [***].
[Signature page follows]
30
Very truly yours,
ALECTOR, INC.
By:
/s/ Neil Berkley
Name: Neil Berkley
Title: Chief Financial Officer and Chief Business Officer
[Signature Page to
Underwriting Agreement]
Accepted as of the date first written above
Morgan Stanley & Co. LLC
BTIG, LLC
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto.
MORGAN STANLEY & CO. LLC
By:
/s/ Kalli Dircks
Name: Kalli Dircks
Title: Managing Director
BTIG, LLC
By:
/s/ Michael Passaro
Name: Michael Passaro
Title: Managing Director
[Signature Page to
Underwriting Agreement]
SCHEDULE I
Underwriter
Number of Shares To
Be Purchased
Morgan Stanley & Co. LLC
18,300,000
BTIG, LLC
18,300,000
Total:
36,600,000
I-1
SCHEDULE II
Time of Sale Prospectus
1.
Preliminary prospectus: None
2.
Free Writing Prospectus: Pricing Press Release dated October 16, 2026
3.
Pricing information:
Shares:
36,600,000
Public Offering Price:
$
2.05
II-1
SCHEDULE III
Written Testing the Waters Communications
None.
III-1
EXHIBIT A
FORM OF
LOCK-UP
LETTER
Morgan Stanley & Co. LLC
BTIG, LLC
As Representatives of the several Underwriters
c/o Morgan Stanley & Co. LLC
1585
Broadway
New York, New York 10036
c/o BTIG,
LLC
65 East 55th Street
New
York, New York 10022
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC and BTIG, LLC (the “
Representatives
) propose to enter into an
Underwriting Agreement (the “
Underwriting Agreement
”), on behalf of the several underwriters (the “
Underwriters
”) with Alector, Inc., a Delaware corporation (the “
Company
”), providing for the
public offering (the “
Public Offering
”) by the several Underwriters of shares (the “
Shares
”) of common stock, par value $0.0001 per share, of the Company (the “
Common Stock
”).
To induce the Underwriters that may participate in the Public Offering to continue its efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof and ending on and including the 30th day after the date of the final prospectus (the
“
Restricted Period
”) relating to the Public Offering (the “
Prospectus
”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule
13d-3
of the Securities
Exchange Act of 1934, as amended (the “
Exchange Act
”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock, (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (3) make any public announcement or filing with the Securities and Exchange Commission relating to any proposed transaction described in clause (1) or (2) above or intent to engage in any such
transaction. The foregoing sentence shall not apply to:
(a) transactions relating to shares of Common Stock or other securities acquired
in the Public Offering or open market transactions on or after the completion of the Public Offering,
provided, however,
that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during the
Restricted Period in connection with subsequent sales of Common Stock or other securities acquired in such open market transactions;
2
(b) the transfer of shares of Common Stock or other securities convertible into Common Stock
(i) to the spouse, domestic partner, parent, child or grandchild of the undersigned or any other person with whom the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin (each, an “
immediate
family member
”) or to a trust or other entity formed for estate planning purposes for the direct or indirect benefit of the undersigned or an immediate family member, (ii) by bona fide gift, (iii) by will or intestacy,
(iv) if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust or (v) by bona fide gift to a charitable organization, as such term is described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, by the undersigned (a “
Permitted Donation
”);
provided
that no filing under Section 16(a) of the Exchange Act or other public filing, report or announcement reporting a
reduction in beneficial ownership of shares of Common Stock or other securities convertible into Common Stock shall be required or shall be voluntarily made during the Restricted Period (other than any required Form 4 or Form 5 filing, including,
but not limited to, any filing made in connection with a Permitted Donation); and
provided
further, that in the case of any transfer or distribution pursuant to clause (ii) or (v), any such required filing shall clearly indicate in the
footnotes thereto that the filing relates to circumstances described in such a clause;
(c) if the undersigned is a corporation,
partnership, limited liability company, trust or other business entity, the transfer of the shares of Common Stock or other securities convertible into Common Stock (i) to another corporation, partnership, limited liability company, trust or
other business entity that controls, is controlled by, manages or is managed by or is under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its
general partner or a successor partnership or fund, or any other funds managed by such partnership) or (ii) as part of a disposition, transfer or distribution by the undersigned to its stockholders, partners, members or other equity holders;
provided
that no filing under Section 16(a) of the Exchange Act or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock or other securities convertible into Common Stock
shall be required or shall be voluntarily made during the Restricted Period;
(d) (i) the receipt by the undersigned from the Company
of shares of Common Stock upon the exercise of options or the settlement of restricted stock units granted under a stock incentive plan or other equity award plan, which plan is described in the registration statement related to the Public Offering
and the Prospectus, insofar as such option or restricted stock unit is outstanding as of the date of the Prospectus, (ii) the transfer of shares of Common Stock or any securities convertible into Common Stock to the Company upon a vesting event
of the Company’s securities, the settlement of restricted stock units, or the exercise of options to purchase the Company’s securities on a “cashless” or “net exercise” basis to the extent permitted by the
instruments representing such options, restricted stock units (and any transfer to the Company necessary to generate such amount of cash needed for the payment of taxes, including estimated taxes, due as a result of such vesting, settlement or
exercise whether by means of a “net settlement” or otherwise) so long as such “cashless exercise” or “net exercise” is effected solely by the surrender of outstanding options or restricted stock units (or the
Common Stock issuable upon the exercise or settlement thereof) to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise price and/or withholding tax and remittance obligations or (iii) any
“sell-to-cover”
transaction involving a sale of shares of Common Stock in connection with the vesting or settlement of restricted stock units granted under a stock
incentive plan or other equity award plan, which plan is described in the registration statement related to the Public Offering and the Prospectus, for the payment of tax withholdings or remittance payments due as a result of the vesting or
settlement of such restricted stock units,
provided
that in the case of either (i), (ii) or (iii), (A) no filing under Section 16(a) of the Exchange Act or other public announcement or filing shall be voluntarily made during the
Restricted Period and (B) the underlying shares issued to the undersigned upon such exercise shall continue to be subject to the terms of this letter;
provided
,
however
, that for the purpose of clauses (i), (ii) and (iii), filings
under Section 16(a) of the Exchange Act shall be permissible if such filings are required and relate solely to “net”, “cashless” or
“sell-to-cover”
exercises or settlements of stock options, restricted stock units or other equity awards that would otherwise expire during
3
the Restricted Period and any such filing include a statement to the effect that such transfer is being made in connection with a “net”, “cashless” or
“sell-to-cover”
exercise or settlement of stock options, restricted stock units or other equity awards, and the undersigned provides written notice to the
Representatives at least one business day prior to making any such filings;
(e) the establishment of a trading plan pursuant to Rule
10b5-1
under the Exchange Act for the transfer of shares of Common Stock,
provided
that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the
extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a
statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period;
(f) the transfer of
shares of Common Stock or other securities convertible into Common Stock to the Company pursuant to agreements under which the Company or any of its respective equity holders has the option to repurchase such shares of Common Stock or other
securities upon termination of service of the undersigned;
(g) the transfer of shares of Common Stock or other securities convertible
into Common Stock pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of capital stock of the Company involving a “change of control” (as defined below) of the Company
after the completion of the Public Offering that has been approved by the board of directors of the Company;
provided
that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the
Undersigned’s shares of Common Stock or other securities shall remain subject to the terms of this letter;
(h) the transfer of
shares of Common Stock or other securities convertible into Common Stock that occurs pursuant to a domestic order or in connection with a divorce settlement; or
(i) sale of shares of Common Stock under a trading plan pursuant to Rule
10b5-1
under the Exchange Act
that is existing as of the date hereof and has been disclosed to the Underwriters,
provided
that any filing required by the Exchange Act that is made in connection with any such sales during the Restricted Period shall state that such sales
have been executed pursuant to such trading plan.
provided
, that (A) in the case of (b), (c) and (h) above, it shall be
a condition to the transfer or distribution that the donee, transferee or distributee, as the case may be, agrees in writing to be bound by the restrictions set forth herein, (B) in the case of (b) and (c) above, such transfer or
distribution shall not involve a disposition for value, (C) in the case of (f) and (h) above, no filing under Section 16(a) of the Exchange Act or other public filing, report or announcement reporting a reduction in beneficial
ownership of shares of Common Stock or other securities convertible into Common Stock shall be voluntarily made during the Restricted Period, and (D) in the case of clause (f) and (h) above, if the undersigned is required to file a report
under Section 16(a) of the Exchange Act during the Restricted Period, the undersigned shall include a statement in such report to the effect that such transfer is to the Company in connection with the repurchase of shares of Common Stock or
other securities convertible into Common Stock or pursuant to a qualified domestic order or in connection with a divorce settlement, as the case may be.
For purposes of clause (g) above, “
change of control
” means 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, other than the Company, 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.
4
In addition, the undersigned agrees that, without the prior written consent of the
Representatives, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock.
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 undersigned’s shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Representatives are relying upon this agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned hereby represents and
warrants that the undersigned has full power and authority to enter into this letter. Notwithstanding anything to the contrary contained herein, this letter will automatically terminate and the undersigned will be released from all obligations
hereunder upon the earliest to occur, if any, of (i) the date on which the Company advises the Representatives in writing, prior to the execution of the Underwriting Agreement, that they have determined not to proceed with the Public Offering,
(ii) the Underwriting Agreement is executed but is terminated (other than the provisions thereof which survive termination) prior to payment for and delivery of the shares of Common Stock to be sold thereunder, or (iii) November 30,
2026 in the event that the Underwriting Agreement has not been executed by such date; provided, however, that the Company may, by written notice to the undersigned prior to such date, extend such date for a period of up to three additional months.
This letter shall not be amended without the prior written consent of the undersigned.
The undersigned hereby consents to receipt of this
letter in electronic form and understands and agrees that this letter may be signed electronically. In the event that any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent
to sign this letter, such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original. Execution and
delivery of this letter by facsimile transmission, electronic mail or other electronic transmission is legal, valid and binding for all purposes.
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 Public Offering of the Shares 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 Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection with the Public Offering, the Underwriters are not
making a recommendation to you to participate in the Public Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making
such a recommendation.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions.
Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
This agreement may be delivered via facsimile, electronic mail (including any electronic signature complying with the U.S. federal ESIGN Act
of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
5
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.
[
Signature page follows.
]
6
Very truly yours,
IF AN INDIVIDUAL:
IF AN ENTITY:
(duly authorized signature)
(please print complete name of entity)
Name:
By:
(please print full name)
(duly authorized signature)
Name:
(please print full name)
Title:
(please print full title)
Address:
Address:
E-mail:
E-mail:

----- d417912dex51.htm -----
EX-5.1
3
d417912dex51.htm
EX-5.1
EX-5.1
Exhibit 5.1
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
O
: 650.493.9300
F
: 866.974.7329
October 16, 2026
Alector, Inc.
131 Oyster Point Boulevard, Suite
600
South San Francisco, California 94080
Re: Alector, Inc. – Sale and Issuance of Shares of Common Stock
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-3, filed by Alector, Inc. (the
“
Company
”) with the Securities and Exchange Commission (the “
Commission
”) on March 12, 2026 under the Securities Act of 1933, as amended (the “
Securities Act
”), and declared effective on
April 30, 2026 (the “
Registration Statement
”), the prospectus contained within the Registration Statement (the “
Base Prospectus
”), and the prospectus supplement to the Registration Statement dated
October 16, 2026 (together with the Base Prospectus, the “
Prospectus
”), in connection with the registration under the Securities Act of 36,600,000 shares of the Company’s common stock, $0.0001 par value per share
(collectively, the “
Shares
”), to be issued and sold by the Company. The offering of the Shares is being made pursuant to that certain underwriting agreement, dated October 15, 2026, by and among the Company, Morgan
Stanley & Co. LLC and BTIG, LLC (the “
Underwriting Agreement
”).
We are acting as counsel for
the Company in connection with the issuance and sale of the Shares by the Company. In such capacity, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion. In our examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the
conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have
reviewed; (iv) that the Underwriting Agreement has been duly authorized and validly executed and delivered by the parties thereto (other than the Company); (v) that the Shares will be issued and sold in compliance with applicable U.S.
federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus; (vi) with respect to the Shares offered by the Company, that there will be sufficient shares of common stock authorized under the
Company’s organizational documents that are not otherwise reserved for issuance; and (vii) the legal capacity of all natural persons.
Our opinion that any document is legal, valid and binding is qualified as to:
(a)  limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer, moratorium
or other similar laws relating to or affecting the rights of creditors generally;
AUSTIN  BOSTON
BOULDER  BRUSSELS  CENTURY CITY  HONG KONG  LONDON  LOS ANGELES  NEW YORK  PALO ALTO
SALT
LAKE CITY  SAN DIEGO  SAN FRANCISCO  SEATTLE  SHANGHAI  WASHINGTON, DC  WILMINGTON, DE
(b)  rights to indemnification and contribution, which may be
limited by applicable law or equitable principles; and
(c)  the effect of general principles of equity,
including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, whether considered in a proceeding in equity or at law.
We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State
of Delaware (including the statutory provisions and all applicable judicial decisions interpreting those laws) and the federal laws of the United States of America.
On the basis of the foregoing, we are of the opinion that the Shares to be issued and sold by the Company have been duly
authorized and, when such Shares are issued and paid for in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on
Form 8-K
filed on or about the date hereof for incorporation by reference into the Registration Statement, and to the use of our name wherever it appears in the Registration Statement, the Prospectus, and in
any amendment or supplement thereto. In giving such consent, we do not believe that we are “experts” within the meaning of such term as used in the Securities Act or the rules and regulations of the Commission issued thereunder with
respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
[
signature page follows
]
-2-
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
-3-

----- d417912dex991.htm -----
EX-99.1
4
d417912dex991.htm
EX-99.1
EX-99.1
Exhibit 99.1
RELEASE
Alector Announces Pricing of Underwritten Offering
SOUTH SAN FRANCISCO, Calif., October
16, 2026 (GLOBE NEWSWIRE) —
Alector, Inc. (“Alector,” Nasdaq: ALEC), a
biotechnology company focused on developing therapies to counteract the devastating progression of neurodegeneration, today announced the pricing of an underwritten offering of common stock. Alector is selling 36,600,000 shares of common stock. The
shares of common stock are being sold at an offering price of $2.05 per share, which represents a premium of approximately 7.3% over the closing price on October 15, 2026. The gross proceeds to Alector from this offering are expected to be
$75,030,000.00 before deducting the underwriting discounts and commissions and other estimated offering expenses. All shares of common stock to be sold in the offering are being offered by Alector. The offering is expected to close on or about
October 19, 2026, subject to the satisfaction of customary closing conditions.
The financing includes participation from new and existing investors,
including TCGX, BVF Partners, ADAR1 Capital Management, and Deep Track Capital, among others.
Alector anticipates using the net proceeds from the
offering for general corporate purposes, which may include research, development and manufacturing of our product candidates, working capital, capital expenditures, other corporate expenses, and acquisitions of, or strategic transactions in,
complementary products, technologies, or businesses.
Morgan Stanley & Co. LLC and BTIG, LLC are acting as joint lead book-running managers for
the offering.
The securities described above are being offered by Alector pursuant to a shelf registration statement previously filed with and declared
effective by the Securities and Exchange Commission (the “SEC”). A prospectus supplement related to the offering will be filed with the SEC and will be available on the SEC’s website at www.sec.gov. Copies of the prospectus
supplement and the accompanying prospectus relating to this offering may be obtained, when available, from: Morgan Stanley & Co. LLC, 180 Varick Street, 2nd Floor, New York, NY 10014, Attention: Prospectus Department; or by email at
prospectus@morganstanley.com; or BTIG, LLC, 65 East 55th Street, New York, New York 10022, or by email at ProspectusDelivery@btig.com.
This press release
shall not constitute an offer to sell or the solicitation of an offer to buy, 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 registration or
qualification under the securities laws of any such state or jurisdiction.
About Alector
Alector is a biotechnology company focused on developing therapies to counteract the devastating progression of neurodegenerative diseases. Leveraging the
principles of genetics, immunology, and neuroscience, the company is advancing a portfolio of programs that aim to remove toxic proteins, replace missing proteins, and restore immune and nerve cell function. Supported by biomarkers, Alector’s
product candidates seek to treat a range of indications, such as Alzheimer’s disease and Parkinson’s disease. The company is also developing Alector Brain Carrier (ABC), a proprietary blood-brain barrier platform, which is being applied
to its preclinical and research pipeline. ABC aims to enhance the delivery of therapeutics, achieve deeper brain penetration and efficacy at lower doses, and ultimately improve patient outcomes while reducing costs. Alector is headquartered in South
San Francisco, California.
Cautionary Note Regarding Forward-Looking Statements
This announcement contains forward-looking statements, including statements relating to Alector’s expectations regarding the anticipated use of proceeds,
and the completion of the offering. These statements are subject to significant risks and uncertainties, and actual results could differ materially from those projected. Alector cautions investors not to place undue reliance on the forward-looking
statements contained in this release. These risks and uncertainties include, without limitation, risks and uncertainties related to market conditions, and the satisfaction of customary closing conditions related to the offering. There can be no
assurance that Alector will be able to complete
the offering. These and other risks are described more fully in Alector’s filings with the Securities and Exchange Commission (“SEC”), including Alector’s Annual Reports
on Form
10-K,
Quarterly Reports on Form
10-Q
and other documents Alector files with the SEC from time to time. Except to the extent required by law, Alector undertakes
no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they were made.
Alector
Contacts:
Argot Partners (investors)
Laura Perry
alector@argotpartners.com
Argot Partners (media)
David Rosen
646-461-6387
alector@argotpartners.com