8-K

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): April 11, 2023

SATSUMA PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-39041	81-3039831
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification Number)

400 Oyster Point Boulevard, Suite 221
South San Francisco, CA	94080
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (650) 410-3200

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	STSA	The Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☒        

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Item 1.01 Entry into a Material Definitive Agreement.

Agreement and Plan of Merger

On April 16, 2023, Satsuma Pharmaceuticals, Inc., a Delaware corporation (the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Shin Nippon Biomedical Laboratories, Ltd., a Japanese corporation (“Parent”) and SNBL23 Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Purchaser”).

The Merger Agreement provides that, upon the terms and subject to the conditions thereof, as promptly as practicable (but in no event more than fifteen (15) business days after the date of the Merger Agreement), Purchaser will commence a tender offer (the “Offer”) to acquire (subject to the Minimum Condition, as defined below) any and all of the issued and outstanding shares of common stock, par value $0.0001 per share (the “Common Stock”), of the Company (the “Shares”) in exchange for (i) an amount in cash equal to $0.91, without interest and less applicable withholding taxes (the “Per Share Price”), and (ii) one contingent value right per Share (a “CVR”) representing the right to receive, subject to the terms and conditions of the Contingent Value Rights Agreement, substantially in the form attached to the Merger Agreement and as Exhibit 10.1 hereto (the “CVR Agreement”), the consideration set forth in the CVR Agreement (the CVRs together with the aggregate Per Share Price paid in accordance with the Merger Agreement, the “Offer Consideration”). The Merger Agreement includes a remedy of specific performance and is not subject to a financing condition. As soon as practicable following the completion of the Offer, upon the terms and subject to the conditions of the Merger Agreement, Purchaser will be merged with and into the Company, with the Company surviving as a wholly owned subsidiary of Parent (the “Merger”). The Merger Agreement contemplates that the Merger will be effected pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), which permits completion of the Merger without a vote of the holders of the Common Stock upon the acquisition by Purchaser of a majority of the aggregate number of the Shares.

At the effective time of the Merger (the “Effective Time”), each:

• Share issued and outstanding immediately prior to the Effective Time (other than (i) each share held in treasury or held by Parent, Purchaser or any of their subsidiaries and (ii) each Share outstanding immediately prior to the Effective Time and held by stockholders who are entitled to demand, and properly demand, appraisal for such Shares in accordance with Section 262 of the DGCL) will be automatically converted into the right to receive the Per Share Price and one CVR representing the right to receive, subject to the terms and conditions of the CVR Agreement, the consideration set forth in the CVR Agreement (the CVRs together with the aggregate Per Share Price paid in accordance with the Merger Agreement, the “Merger Consideration”);

• outstanding, unexercised Company option that is vested at the Effective Time, or that vests as a result of the consummation of the transactions contemplated by the Merger Agreement (each, a “Vested Company Option”) and has an exercise price per Share that is less than the Per Share Price will be cancelled and converted automatically into the right to receive (i) an amount (without interest) in cash, equal in value to (A) the total number of Shares subject to the Vested Company Option multiplied by (B) the excess, if any, of the Per Share Price over the exercise price per Share underlying such Vested Company Option, less applicable taxes required to be withheld with respect to such payment, and (ii) a CVR;

• Vested Company Option that has an exercise price per Share that is greater than or equal to the Per Share Price will be cancelled immediately for no consideration or payment; and

• Company option that is not a Vested Company Option will be cancelled immediately for no consideration or payment.

Under the terms of the Merger Agreement, Purchaser’s obligation to accept and pay for shares of Common Stock that are tendered in the Offer is subject to customary conditions, including, among others, that (i) prior to the expiration of the Offer, there have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of Shares that, upon the consummation of the

Offer, together with the Shares then owned directly or indirectly by Parent, Purchaser or any direct or indirect subsidiary of Parent (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), would represent at least a majority of the aggregate number of shares of the Company’s capital stock outstanding immediately after the consummation of the Offer (the “Minimum Condition”); (ii) the absence of legal restraints prohibiting the consummation of the transactions contemplated by the Merger Agreement; (iii) the accuracy of the Company’s representations and warranties in the Merger Agreement, subject to specified materiality qualifications; (iv) compliance by the Company with its covenants in the Merger Agreement in all material respects; (v) the absence of a material adverse effect on the business, financial condition, or results of operations of the Company and its subsidiaries taken as a whole (subject to customary carveouts); (vi) delivery of a customary officer certificate certifying that the conditions set forth in clauses (iii), (iv) and (v) immediately above have been satisfied; (vii) no valid termination of the Merger Agreement in accordance with its terms; and (viii) Company Net Cash (as defined in the Merger Agreement) the amount required by the Merger Agreement.

The Merger Agreement and the consummation of the transactions contemplated thereby have been approved by the Company board of directors (the “Company Board”), and the Company Board has resolved, subject to customary exceptions, to recommend that the stockholders of the Company accept the Offer and tender their Shares to Purchaser pursuant to the Offer (such recommendations, the “Recommendation”).

The Merger Agreement includes covenants requiring the Company and its representatives not to (i) solicit, initiate, induce, encourage or facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (as defined in the Merger Agreement), (ii) participate in any discussions or negotiations or cooperate in any way with any person regarding any proposal or offer the consummation of which would constitute a Company Acquisition Proposal; (iii) provide any information or data concerning the Company or any of its subsidiaries to any person in connection with any proposal the consummation of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company Acquisition Proposal; (iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Company Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal; (v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any person (other than Parent and its subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or (vi) resolve, publicly propose or agree to do any of the foregoing.

Notwithstanding these restrictions, the Company may under certain circumstances provide information to and engage in discussions or negotiations with third parties with respect to an unsolicited bona fide acquisition proposal that the Company Board determines in good faith, after consultation with outside legal counsel and an independent financial advisor of nationally recognized reputation, constitutes a Company Superior Proposal (as defined in the Merger Agreement) and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law.

In addition, the Company Board is permitted, subject to the terms and conditions set forth in the Merger Agreement, to make a Company Change in Recommendation (as defined in the Merger Agreement) following (i) receipt of an unsolicited, bona fide written Company Acquisition Proposal after the date of the Merger Agreement with respect to which the Company has received a written, definitive form of Company Alternative Acquisition Agreement (as defined in the Merger Agreement) that has not been withdrawn and the Company Board determines in good faith, after consultation with independent financial advisors of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal, or (ii) the occurrence of an event or development that has a material effect on the Company and was not known to or reasonably foreseeable by the Company at signing, subject to customary exceptions, in each case, if the Company Board concludes in good faith, after consultation with independent financial advisors of nationally recognized reputation and outside legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable law.

The Merger Agreement contains representations, warranties and covenants by the Company, Parent and Purchaser that are customary for a transaction of this nature, including among others, the covenant regarding the conduct of the Company’s business during the pendency of the transactions contemplated by the Merger Agreement, public disclosures and the use of reasonable best efforts to make all filings required by governmental entities following the execution of the Merger Agreement. In addition, certain covenants require each of the parties to use, subject to the terms and conditions of the Merger Agreement, their reasonable best efforts to consummate the Offer and the Merger.

The Merger Agreement contains customary termination rights for each of the Company and Parent, including the right of the Company and Parent to terminate the Merger Agreement if Parent has not accepted the Shares tendered in the Offer upon the expiration of the Offer or if a final, non-appealable legal restraint permanently prohibits the consummation of the transactions contemplated by the Merger Agreement.

The Merger Agreement also provides that the payment of a $905,136 termination fee will be payable by Company to Parent if:

• prior to the acceptance of the shares tendered in the Offer (the “Acceptance Time”) the Merger Agreement is terminated by Parent due to (i) the Company Board having made a Company Change in Recommendation, (ii) the Company having failed to include the Company Board Recommendation in the Schedule 14D-9 or Company’s Schedule 13E-3 filing, (iii) a tender offer or exchange offer for outstanding Shares having been commenced (other than by Parent or an affiliate of Parent) and the Company Board having recommended that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company Board having failed to recommend against acceptance of such offer; or (iv) the Company having materially breached or failed to perform in any material respect certain obligations in the Merger Agreement including with respect to its non-solicitation covenant;

• prior to the Acceptance Time, the Merger Agreement is terminated by the Company due to the Company Board having authorized, to the extent permitted by its non-solicitation covenant, the Company’s entry into a binding written definitive acquisition agreement providing for the consummation of a Company Superior Proposal that did not result from a material breach of the Merger Agreement and, concurrently with the Company’s termination the Merger Agreement, the Company enters into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Company Superior Proposal; or

• (i) either the Company or Parent terminates the Merger Agreement due to the failure to complete the Offer, (ii) prior to such termination a Company Acquisition Proposal is publicly disclosed and not publicly withdrawn and (iii) within 12 months after the date of the termination of the Merger Agreement the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal which is subsequently consummated.

Pursuant to the Merger Agreement, the Company expects the tender offer materials in respect of the Offer to be filed with the Securities and Exchange Commission (the “SEC”) approximately 15 business days following the date of the Merger Agreement.

The Company will (i) file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (“Schedule 14D-9 Solicitation Statement”) with respect to the Offer, which will reflect the terms and conditions of the Merger Agreement, describe and make the Recommendation (subject to a Company Change in Recommendation) and include the notice of appraisal rights in accordance with Section 262 of the DGCL. The Company will also prepare and file a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Offer, which will include the Recommendation (subject to a Company Change in Recommendation).

Contingent Value Right Agreement

Prior to consummation of the Merger, Parent will enter into the CVR Agreement with the American Stock Transfer & Trust Company, LLC (the “Rights Agent”), which will govern the terms of the CVR portion of the Offer Consideration and Merger Consideration. Each CVR represents the right to additional payments based on the proceeds, subject to certain adjustments, received by Parent from (i) the sale, license or other grant of rights with respect to the STS101 program or any part thereof, (ii) the sale or disposition of all or substantially all of the business or assets of the Company (that exists immediately prior to the closing of the Merger), or (iii) the sale or disposition of all or substantially all of the equity of the Company or Purchaser.

The right to the CVR portion of the Merger Consideration as evidenced by the CVR Agreement is a contractual right only and will not be transferable, except in the limited circumstances specified in the CVR Agreement.

Tender and Support Agreement

Concurrently with the execution of the Merger Agreement, Parent entered into a tender and support agreement (the “Support Agreement”) with certain stockholders and directors of the Company (the “Supporting Persons”), pursuant to which such Supporting Person has agreed, among other things, to tender its Shares in the Offer and to vote against certain matters at meetings of the Company’s stockholders which are intended to or would reasonably be expected to impede, delay or prevent, in any material respect, the Offer or the Merger. The Support Agreement will terminate upon the earliest to occur of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the Effective Time, (iii) a Company Change in Recommendation, (iv) the occurrence of the Termination Date (as defined in the Merger Agreement), (v) the mutual written consent of Parent, Purchaser and stockholders holding a majority of the Subject Securities (as defined in the Support Agreement) and (vi) the delivery of written notice from a Supporting Person to Parent at any time following (A) the waiver of the Minimum Condition or certain other conditions in the Merger Agreement or (B) certain changes in the terms of or conditions to the Offer.

The foregoing description of the Support Agreement does not purport to be complete and is qualified in its entirety by the full text of the Support Agreement, a copy of which is filed as Exhibit 2.2 hereto and is incorporated by reference herein.

Additional Information

The foregoing descriptions of the Merger Agreement, the CVR Agreement, and the Tender and Support Agreement, and the transactions contemplated thereby do not purport to be complete, and are subject to, and qualified in its entirety by reference to, the full text of the each agreement, which are attached as Exhibits 2.1, 2.2 and 10.1 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference. It is not intended to provide any factual information about the Company, Parent or their respective subsidiaries and affiliates. The representations, warranties and covenants contained in the Merger Agreement have been made solely for the purposes of the Merger

Agreement and as of specified dates; were made solely for the benefit of the parties to the Merger Agreement; are not intended as statements of fact to be relied upon by the Company’s stockholders, but rather as a way of allocating the risk between the parties in the event that statements therein prove to be inaccurate; have been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, which disclosures are not reflected in the Merger Agreement itself; may have been made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts; may no longer be true as of a given date; and may apply standards of materiality in a way that is different from what may be viewed as material by the Company’s stockholders. The Company’s stockholders are not third-party beneficiaries under the Merger Agreement (except, following the Effective Time, with respect to the Company’s stockholders’ right to receive the Merger Consideration and the right of the holders of Company Stock Options and Company Equity Awards to receive the consideration pursuant to the Merger Agreement and to seek specific performance or damages with respect to those rights, and the provisions of Section 6.8 of the Merger Agreement relating to indemnification) and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s or Parent’s public disclosures.

A copy of the press release announcing the proposed Offer is attached as Exhibit 99.1 hereto and incorporated herein by reference.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On April 11, 2023, the Company received a written notice from the staff (the “Staff”) of the Listing Qualifications Department of The Nasdaq Stock Market LLC (“Nasdaq”), notifying the Company that, for the 30 consecutive business day period between February 27, 2023 through April 10, 2023, the Company’s Common Stock, had not maintained a minimum bid price of $1.00 per share, required for continued listing on the Nasdaq Global Market pursuant to Nasdaq Listing Rule 5450(a)(1) (the “Minimum Bid Price Requirement”). Nasdaq’s written notice does not result in the immediate delisting of the Common Stock from the Nasdaq Global Market.

In accordance with Nasdaq Listing Rule 5810(c)(3)(A) (the “Compliance Period Rule”), the Company has 180 calendar days, or until October 9, 2023 (the “Compliance Date”), to regain compliance with the Minimum Bid Price Requirement. To regain compliance, the closing bid price for the Common Stock must be at least $1.00 per share for a minimum of ten consecutive business days before the Compliance Date.

If the Company does not regain compliance with the Minimum Bid Price Requirement by the Compliance Date, the Company may be eligible for an additional 180 calendar day compliance period. To qualify, the Company would be required to transfer its listing to the Nasdaq Capital Market and meet the continued listing requirement for the market value of publicly held shares and all other applicable initial listing standards for the Nasdaq Capital Market, with the exception of the Minimum Bid Price Requirement, and would need to provide written notice to Nasdaq of its intention to cure the deficiency during the additional 180-day compliance period, such as by effecting a reverse stock split, if necessary. As part of its review process, the Staff will make a determination of whether it believes the Company will be able to cure this deficiency. If it appears to the Staff that the Company will not be able to cure the deficiency or if the Company does not meet the other listing standards, then the Staff will provide written notice to the Company that its Common Stock will be subject to delisting. At that time, the Company may appeal the Staff’s delisting determination to a Nasdaq Hearing Panel. There can be no assurance that, if the Company receives a delisting notice and appeals the delisting determination by the Staff to the Hearing Panel, such appeal would be successful.

The Company intends to monitor the closing bid price of its Common Stock and may, if appropriate, consider available options to regain compliance with the Minimum Bid Price Requirement. However, the Company may not regain compliance with such requirement.

Item 5.02 Departure of Directors or Principal Officers

As requested by Parent, the Company will terminate the employment of each of John Kollins, President and Chief Executive Officer of the Company, and Tom O’Neil, Chief Financial Officer of the Company, effective as of the closing of the Offer and the Merger (and subject to the occurrence of the closing of the Offer and Merger) on terms and conditions to be negotiated between the parties. Prior to the closing, such executive officers shall remain in their current positions with their current compensation.

In connection to the Merger and in accordance with the Merger Agreement, each of the directors of the Company will resign as directors of the Company, effective as of the closing of the Offer and the Merger (and subject to the occurrence of the closing of the Offer and Merger).

Item 7.01 Regulation FD Disclosure.

On April 16, 2023, the Company issued a press release announcing the execution of the Merger Agreement. A copy of the press release is hereby furnished as Exhibit 99.1 to this Report.

The information contained in this Item 7.01 and in Exhibit 99.1 of this Report shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be incorporated by reference into any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly set forth by specific reference in such filing.

Forward-Looking Statements

This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. In some cases, forward-looking statements may be identified by terminology such as “believe,” “may,” “will,” “should”, “predict”, “goal”, “strategy”, “potentially,” “estimate,” “continue,” “anticipate,” “intend,” “could,” “would,” “project,” “plan,” “expect,” “seek” and similar expressions and variations thereof. These and other similar words are intended to identify forward-looking statements. Such forward-looking statements include, but are not limited to, statements about the structure, timing and completion of the proposed transaction; the ability to complete the transactions contemplated by the Merger Agreement, including the parties’ ability to satisfy the conditions to the consummation of the Offer contemplated thereby and the other conditions set forth in the Merger Agreement; the possibility that the conditions to payment under the CVRs will be met; and the possibility of any termination of the Merger Agreement. The Company has based these forward-looking statements on current expectations and projections about future events and trends that the Company believes may affect the financial condition, results of operations, business strategy, short-term and long-term business operations and objectives and financial needs of Parent and the Company, but there can be no guarantee that such expectations and projections will prove accurate in the future.

All statements other than statements of historical fact are statements that could be deemed forward-looking statements. Actual results may differ materially from current expectations because of risks associated with uncertainties as to the timing of the Offer and the subsequent merger; uncertainties as to the number of the Company’s stockholders that will tender their shares in the offer; the risk that competing offers or acquisition proposals will be made; the possibility that various conditions to the consummation of the merger and the offer contemplated thereby may not be satisfied or waived; the effects of disruption from the transactions contemplated by the Merger Agreement on the Company’s business and the fact that the announcement and pendency of the transactions may make it more difficult to establish or maintain relationships with employees, suppliers and other business partners; and the risk that stockholder litigation in connection with the offer or the merger may result in significant costs of defense, indemnification and liability. Moreover, Parent and the Company operate in very competitive and rapidly changing environments, and new risks emerge from time to time. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, the Company cannot guarantee future events, results, actions, levels of activity, performance or achievements, business and market conditions, the timing and results of biotechnology development and potential regulatory approval and whether the conditions to the closing of the proposed transaction are satisfied on the expected timetable or at all. Forward-looking statements are also subject to risks and uncertainties pertaining to the business of the Company, including those set forth in the “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, which is on file with the SEC and available on the SEC’s website at www.sec.gov. In addition to the risks described above and in the Company’s other filings with the SEC, other unknown or unpredictable factors could also affect the Company’s results. No forward-looking statements can be guaranteed and actual results may differ materially from such statements. The information contained in this document is provided only as of the date hereof, and no party undertakes any obligation to revise or update any forward-looking statements to reflect events or circumstances after the date hereof, except as required by law.

Additional Information and Where to Find It

The Offer for the outstanding shares of common stock of the Company has not yet commenced. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell shares of the Company’s common stock, nor is it a substitute for the Offer materials that Parent and its acquisition subsidiary will file with the SEC upon commencement of the Offer. At the time the Offer is commenced, Parent will file a Tender Offer Statement on Schedule TO (“Tender Offer Statement”) with the SEC, and thereafter the Company will file the Schedule 14D-9 Solicitation Statement with respect to the Offer. Both the Tender Offer Statement and the Schedule 14D-9 Solicitation Statement will be mailed to the Company’s stockholders free of charge. A free copy of the Tender Offer Statement and the Schedule 14D-9 Solicitation Statement will also be made available to all stockholders of the Company by contacting the Company at info@satsumarx.com or by phone at (650) 410-3200. In addition, the Tender Offer Statement, the related letter of transmittal and certain other Offer documents and the Schedule 14D-9 Solicitation

Statement (and all other documents filed with the SEC) will be available at no charge on the SEC’s website: www.sec.gov, upon filing with the SEC. In addition to these documents, the Company files annual, quarterly and current reports and other information with the SEC. These filings with the SEC are also available to the public for free at the SEC’s website. In addition, the Schedule 14D-9 Solicitation Statement and the other documents filed by the Company with the SEC are available to all stockholders of the Company free of charge at http://investors.Satsumarx.com.

THE COMPANY’S STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO AND THE SCHEDULE 14D-9 SOLICITATION STATEMENT CAREFULLY, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE OFFER, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO, AS WELL AS IMPORTANT INFORMATION THAT HOLDERS OF SHARES OF THE COMPANY’S COMMON STOCK SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.	Description
2.1*	Agreement and Plan of Merger, dated as of April 16, 2023, by and among Satsuma Pharmaceuticals, Inc., Shin Nippon Biomedical Laboratories, Ltd. and SNBL23 Merger Sub, Inc.
2.2*	Tender and Support Agreement, dated as of April 16, 2023, by among Shin Nippon Biomedical Laboratories, Ltd., SNBL23 Merger Sub, Inc. and certain stockholders and directors of the Company
10.1	Form of Contingent Value Rights Agreement to be entered into between Shin Nippon Biomedical Laboratories, Ltd. and American Stock Transfer & Trust Company, LLC
99.1	Press Release dated April 16, 2023
104	Cover Page Interactive Data File (embedded within the inline XBRL document)

* Certain confidential information and exhibits have been omitted pursuant to Item 601 of Regulation S-K because it is not material, and it is the type that the Registrant treats as confidential.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	SATSUMA PHARMACEUTICALS, INC.
Date: April 17, 2023	By:	/s/ Tom O’Neil
		Tom O’Neil
		Chief Financial Officer

EX-2.1

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

among

SHIN NIPPON BIOMEDICAL LABORATORIES, LTD.,

SATSUMA PHARMACEUTICALS, INC.

and

SNBL23 MERGER SUB, INC.

Dated as of April 16, 2023

TABLE OF CONTENTS

		Page
ARTICLE I THE OFFER			2
1.1	The Offer		2
1.2	Company Actions		6
1.3	Schedule 13E-3		7
ARTICLE II THE MERGER; CLOSING; SURVIVING COMPANY			8
2.1	The Merger		8
2.2	Closing		8
2.3	Effective Time		8
2.4	The Certificate of Incorporation		8
2.5	The Bylaws		8
2.6	Directors of the Surviving Company		9
2.7	Officers of the Surviving Company		9
ARTICLE III EFFECT OF THE MERGER ON SECURITIES; EXCHANGE			9
3.1	Effect on Capital Stock		9
3.2	Exchange of Certificates		10
3.3	Adjustments to Prevent Dilution		11
3.4	Treatment of Equity Awards and ESPP		11
3.5	CVR Agreement		12
3.6	Dissenting Shares		12
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY			13
4.1	Organization, Good Standing and Qualification		13
4.2	Company Subsidiaries		13
4.3	Capital Structure		14
4.4	Corporate Authority and Approval		15
4.5	No Conflicts; Consents		16
4.6	Company SEC Documents; Financial Statements; No Undisclosed Liabilities		16
4.7	Internal Controls and Procedures		17
4.8	Absence of Certain Changes		18
4.9	Litigation and Liabilities		18
4.10	Benefits Matters; ERISA Compliance		18
4.11	Labor Matters		20
4.12	Compliance with Laws		22
4.13	Contracts		22
4.14	Environmental Matters		23
4.15	Taxes		23
4.16	Intellectual Property		25
4.17	Privacy; Data Processing; Security		27
4.18	Regulatory Matters		27
4.19	Insurance; Properties		29
4.20	Information Supplied		30
4.21	Brokers and Finders		30
4.22	Opinion of Financial Advisor		31
4.23	Section 203 of the DGCL		31
4.24	Certain Business Practices		31

i

4.25	Export Control and Trade Sanctions Laws	31
4.26	CFIUS Representations	32
4.27	Bank Accounts	32
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER		32
5.1	Organization and Good Standing	32
5.2	Corporate Authority and Approval	33
5.3	No Conflicts; Consents	33
5.4	Litigation and Liabilities	34
5.5	Information Supplied	34
5.6	Brokers and Finders	34
5.7	Ownership and Operations of Purchaser	34
5.8	Sufficient Funds	34
5.9	No Vote of Parent Stockholders	34
5.10	Ownership of Shares	34
ARTICLE VI COVENANTS		35
6.1	Interim Operations	35
6.2	Company Acquisition Proposals; Company Change in Recommendation	38
6.3	Regulatory Approvals and Related Matters	43
6.4	Access; Consultation	44
6.5	Stock Exchange De-listing and De-registration	44
6.6	Publicity	44
6.7	Expenses	45
6.8	Indemnification; Directors’ and Officers’ Insurance	45
6.9	Takeover Statute	45
6.10	Control of the Company’s or Parent’s Operations	46
6.11	Section 16(b)	46
6.12	Approval by Sole Stockholder of Purchaser	46
6.13	Stockholder Litigation	46
6.14	Termination of Company Plans	46
6.15	Termination of Certain Agreements	46
6.16	FIRPTA Certificate	47
6.17	CVR	47
ARTICLE VII CONDITIONS		47
7.1	Conditions to Each Party’s Obligation to Effect the Merger	47
7.2	Frustration of Conditions	47
ARTICLE VIII TERMINATION		47
8.1	Termination by Mutual Consent	47
8.2	Termination by Either Parent or the Company	47
8.3	Termination by the Company	48
8.4	Termination by Parent	49
8.5	Company Termination Fee	49
8.6	Effect of Termination and Abandonment	50
8.7	Remedies	50
ARTICLE IX MISCELLANEOUS AND GENERAL		51
9.1	Survival	51
9.2	Modification or Amendment	51
9.3	Waiver	51

ii

9.4	Counterparts; Effectiveness; .pdf Signature	51
9.5	Governing Law and Venue; Waiver of Jury Trial	51
9.6	Notices	52
9.7	Entire Agreement	53
9.8	No Third Party Beneficiaries	53
9.9	Obligations of Parent and of the Company	53
9.10	Severability	53
9.11	No Other Representations and Warranties	54
9.12	Interpretation	54
9.13	Certain Definitions	55
9.14	Assignment	63
9.15	Specific Performance	64

Schedule I	Conditions to the Offer
Schedule II	Strategic Alternatives Disclosure
Schedule III	Company Net Cash Calculation
Exhibit A	Form of Tender and Support Agreement
Exhibit B	Certificate of Merger
Exhibit C	Form of Contingent Value Rights Agreement

iii

INDEX OF DEFINED TERMS

Acceptance Time	1.1(e)
Agreement	Preamble
AST	3.2(a)
Bankruptcy and Equity Exception	4.4(c)
Bylaws	2.5
Certificate	3.1(a)(ii)
Certificate of Incorporation	2.4
Certificate of Merger	2.3
Closing	2.2
Closing Date	2.2
Closing Vested Company Option Consideration	3.4(a)
Company	Preamble
Company 13E-3	1.3
Company Acquisition Proposal	6.2(d)
Company Alternative Acquisition Agreement	6.2(e)
Company Balance Sheet	4.6(c)
Company Board	Recitals
Company Board Recommendation	Recitals
Company Bylaws	4.1
Company Capital Stock	4.3(a)
Company Change in Recommendation	6.2(e)
Company Charter	4.1
Company Disclosure Letter	Article IV
Company Financial Advisor	4.21
Company In-bound License of IP	4.16(d)
Company Intervening Event	6.2(d)
Company Leases	4.19(c)
Company Licensed Registered IP	4.16(a)
Company Material Contract	4.13(b)
Company Owned Registered IP	4.16(a)
Company Permits	4.18(a)
Company Preferred Stock	4.3(a)
Company Registered IP	4.16(a)
Company SEC Documents	4.6(a)
Company Subsidiaries	4.1
Company Superior Proposal	6.2(d)
Contemplated Transactions	Recitals
CVR	1.1(a)
DGCL	Recitals
DPA	4.26
Effective Time	2.3
ERISA Affiliate	4.10(e)
Exchange Agent	3.2(a)
Exchange Fund	3.2(a)
Excluded Share	3.1(a)(i)
Excluded Shares	3.1(a)(i)
Expiration Time	1.1(d)(i)

Export Approvals	4.25
FDA Fraud Policy	4.18(d)
Filed Company Contract	4.13(a)
Filed Company SEC Documents	Article IV
Fraud	8.6
Indemnified Persons	6.8(a)
IRS	4.10(d)
Merger	Recitals
Merger Consideration	3.1(a)(i)
Purchaser	Preamble
Minimum Condition	1.1(a)(i)
Offer	Recitals
Offer Consideration	1.1(a)
Offer Documents	1.1(f)(i)(A)
Offer to Purchase	1.1(a)
Parent	Preamble
Parent 13E-3	1.3
Parent Board	Recitals
Parent Disclosure Letter	Article V
Parent Owned Shares	5.10(a)
Parties	Preamble
Party	Preamble
Permits	4.18(a)
Pre-Closing Period	6.1(a)
Representatives	6.2(a)
Required Consents	6.3(b)
Rule 13e-3	1.3
Schedule 13E-3	1.3
Schedule 14D-9	1.2(a)
Schedule TO	1.1(f)(i)(A)
Share	Recitals
Share Adjustment	1.1(c)
Shares	Recitals
Support Agreements	Recitals
Surviving Company	2.1
Termination Date	8.2(a)
Trade Laws	4.25
Uncertificated Shares	3.1(a)(ii)
Unvested Company Option	3.4(b)
Vested Company Option	3.4(a)
Vested Company Option Consideration	3.4(a)
WARN Act	4.11(f)
Willful Breach	8.6
Withholding Agent	3.2(f)

iv

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (hereinafter referred to as this “Agreement”), dated as of April 16, 2023, is entered into by and among Satsuma Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Shin Nippon Biomedical Laboratories, Ltd., a Japanese corporation (“Parent”), and SNBL23 Merger Sub, Inc., a Delaware corporation and a direct wholly owned Subsidiary of Parent (“Purchaser”). Parent, Purchaser and the Company are each sometimes referred to herein as a “Party” and collectively as the “Parties”.

RECITALS

WHEREAS, it is proposed that Purchaser shall commence a tender offer (the “Offer”) to acquire any (subject to the Minimum Condition) and all of the outstanding shares of common stock, par value $0.0001 per share, of the Company (collectively, the “Shares” and individually, a “Share”) for the consideration and upon the terms and subject to the conditions set forth herein;

WHEREAS, as soon as practicable following the consummation of the Offer, the Parties wish to effect a business combination through the merger of Purchaser with and into the Company, with the Company being the surviving corporation (the “Merger”);

WHEREAS, the Merger will be governed by Section 251(h) of the Delaware General Corporation Law (the “DGCL”);

WHEREAS, in connection with the Merger, each Share issued and outstanding immediately prior to the Effective Time shall be cancelled and each holder of Shares shall have the right to receive the Merger Consideration upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL (other than Shares to be cancelled in accordance with Section 3.1(a)(iii));

WHEREAS, the board of directors of the Company (the “Company Board”) has determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger (the “Contemplated Transactions”), are advisable and in the best interests of the Company and its stockholders;

WHEREAS, the Company Board has adopted resolutions approving this Agreement and the Contemplated Transactions and, subject to Section 6.2, recommending that the Company’s stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer (the “Company Board Recommendation”);

WHEREAS, the board of directors of Parent (the “Parent Board”) has adopted resolutions approving this Agreement, the execution of this Agreement and the consummation of the Contemplated Transactions;

WHEREAS, the board of directors of Purchaser, by resolutions duly adopted, has unanimously approved the Contemplated Transactions upon the terms and subject to the conditions set forth in this Agreement, has approved and declared advisable this Agreement, and has resolved to recommend to its sole stockholder the adoption of this Agreement;

WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, at or prior to the Effective Time, the Parent, the Purchaser and the Rights Agent will enter into the CVR Agreement;

WHEREAS, concurrently with the execution of this Agreement, the Support Stockholders have entered into tender and support agreements with Parent and Purchaser in substantially the form attached hereto as Exhibit A (the “Support Agreements”), pursuant to which, among other things, such Persons have agreed, on the terms and subject to the conditions set forth in the Support Agreements, to tender their Shares in the Offer and vote against certain proposals at meetings of the Company’s stockholders;

WHEREAS, the Company, Parent and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, the Parties hereby agree as follows:

ARTICLE I

THE OFFER

1.1 The Offer.

(a) Terms and Conditions of the Offer. Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been validly terminated pursuant to Article VIII, as promptly as practicable after the date hereof (but in no event more than fifteen (15) Business Days thereafter), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer. In the Offer, each Share accepted by Purchaser in accordance with the terms and subject to the conditions of the Offer shall be exchanged for (x) the Per Share Price and (y) one contingent value right per Share (a “CVR”) representing the right to receive, subject to the terms and conditions of the CVR Agreement, the consideration set forth in the CVR Agreement (the CVRs together with the aggregate Per Share Price paid in accordance with this Section 1.1(a), the “Offer Consideration”), subject to the other provisions of this Article I. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that is disseminated to holders of the Shares pursuant to the Exchange Act and contains, to the extent required by the Exchange Act, the terms and conditions set forth in this Agreement (including Schedule I). Each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof (including Schedule I). The obligation of Purchaser to accept for purchase (and the obligation of Parent to cause Purchaser to accept for purchase) Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to:

(i) the condition that, prior to the expiration of the Offer, there have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of Shares that, upon the consummation of the Offer, together with the Shares then owned directly or indirectly by Parent, Purchaser or any direct or indirect Subsidiary of Parent (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), would represent at least a majority of the aggregate number of shares of the Company Capital Stock outstanding immediately after the consummation of the Offer (the “Minimum Condition”); and

(ii) the other conditions set forth in Schedule I.

(b) Purchaser expressly reserves the right, at any time, to (i) increase the Offer Consideration to be paid in the Offer, (ii) waive or modify any of the conditions to the Offer and (iii) to make any change in the terms of, or conditions to, the Offer; provided, however, that notwithstanding anything to the contrary set forth herein, without the prior written consent of the Company, Purchaser may not (and Parent shall not permit Purchaser to) (i) waive the Minimum Condition, or any of the conditions

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set forth in Section (a), (b), or (c)(v) of Schedule I or (ii) make any change in the terms of or conditions to the Offer that (A) changes the form of consideration to be paid in the Offer, (B) reduces the Offer Consideration to be paid in the Offer (by proposing to change the Per Share Price, CVR or otherwise) or decreases the number of Shares sought in the Offer (other than in each case an adjustment made pursuant to Section 1.1(c)), (C) extends the Offer, other than in a manner required or permitted by Section 1.1(d), (D) imposes conditions to the Offer, other than those set forth in Schedule I, (E) amends, modifies or waives the Minimum Condition, (F) amends or modifies any term of or condition to the Offer (including the conditions in Schedule I) in any manner that has an adverse effect, or would be reasonably likely to have an adverse effect, on the holders of the Shares or (G) extends or otherwise changes any time period for the performance obligations of Purchaser or Parent in a manner other than pursuant to and in accordance with this Agreement.

(c) Adjustments to Offer Consideration. In the event that during the Pre-Closing Period the Company changes the number of Shares or securities convertible or exchangeable into or exercisable for any such Shares which are issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, reorganization, subdivision, or other similar transaction (any of the foregoing transactions, a “Share Adjustment”), the Offer Consideration shall be equitably adjusted to eliminate the effects of such event on the Merger Consideration; provided, however, that nothing in this Section 1.1(c) shall be construed to permit the Company or any other Person to take any action except to the extent consistent with, and not otherwise limited or prohibited by, the terms and conditions of this Agreement.

(d) Expiration and Extension of the Offer.

(i) Unless the Offer is extended pursuant to and in accordance with this Section 1.1(d), the Offer shall expire at midnight, Eastern Time, on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) and Rule 14e-1(a) promulgated under the Exchange Act) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (as such date and time may be extended, the “Expiration Time”). In the event that the Offer is extended pursuant to and in accordance with this Agreement, then the Offer shall expire on the date and at the time to which the Offer has been so extended.

(ii) Notwithstanding the provisions of Section 1.1(d)(i) or anything to the contrary set forth in this Agreement (unless Parent receives the prior written consent of the Company (which may be granted or withheld in the Company’s sole discretion)):

(A) Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for any period required by any Law, or any rule, regulation, interpretation or position of the SEC or its staff or of Nasdaq, in any such case, which is applicable to the Offer, or to the extent necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents;

(B) in the event that any of the conditions to the Offer (other than the Minimum Condition, and other than any conditions that by their nature are to be satisfied at the Expiration Time (provided such conditions would be capable of being satisfied or validly waived were the Expiration Time to occur at such time)) have not been satisfied or waived (if permitted hereunder) as of any then-scheduled expiration of the Offer, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for successive extension periods of up to ten (10) Business Days each (or for such longer period as may be agreed by Parent and the Company), it being understood and agreed that Purchaser shall not be required to extend the Offer pursuant to this clause (B) beyond the Termination Date; and

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(C) if as of any then-scheduled expiration of the Offer each condition to the Offer (other than the Minimum Condition, and other than any conditions that by their nature are to be satisfied at the Expiration Time (provided such conditions would be capable of being satisfied or validly waived were the Expiration Time to occur at such time)) has been satisfied or waived (if permitted hereunder) and the Minimum Condition has not been satisfied, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for successive extension periods of up to ten (10) Business Days each (with the length of each such period being determined in good faith by Parent) (or for such longer period as may be agreed by Parent and the Company in writing), it being understood and agreed that Purchaser shall not be required to extend the Offer pursuant to this clause (C) beyond the Termination Date;

provided, that, notwithstanding anything to the contrary in this Agreement, (1) any extension of the Offer pursuant to the foregoing clauses (A), (B) or (C) of this Section 1.1(d)(ii) shall not be deemed to impair, limit, or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to the terms of Section 8.1 and (2) Purchaser shall not be required (and Parent shall not be required to cause Purchaser) to extend the Offer beyond the Termination Date.

(iii) Neither Parent nor Purchaser shall extend the Offer or provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act in any manner other than in accordance with the provisions of this Agreement without the prior written consent of the Company.

(iv) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to the then-scheduled expiration of the Offer unless this Agreement is validly terminated in accordance with Article VIII, in which case Purchaser shall (and Parent shall cause Purchaser to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) Business Day) after such termination of this Agreement.

(v) Parent shall keep the Company reasonably informed on a reasonably current basis of the status of the Offer, including with respect to the number of Shares that have been validly tendered and not validly withdrawn in accordance with the terms of the Offer, and with respect to any material developments with respect thereto and, upon the Company’s written request (no more often than once per day during the Offer (other than on the date of the then-scheduled expiration of the Offer)), provide the Company as soon as practicable with the most recent report then available from the Exchange Agent detailing the number of Shares that have been validly tendered and not validly withdrawn in accordance with the terms of the Offer.

(e) Payment for Shares. On the terms of and subject to the conditions set forth in this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all Shares that are validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the Expiration Time (as it may be extended in accordance with Section 1.1(d)(ii)) (or, at Parent’s election, concurrently with the Expiration Time if all conditions to the Offer have been satisfied or waived) (such time of acceptance, the “Acceptance Time”); provided, that Purchaser shall not accept for payment or pay for any Shares if, as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition. Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and Purchaser shall provide or cause to be provided, to the Exchange Agent promptly

4

following the Acceptance Time (and in any event prior to the Closing Date), the funds necessary to pay for any Shares that Purchaser becomes obligated to purchase pursuant to the Offer. Purchaser shall promptly (and in any event within two (2) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)) after the Acceptance Time instruct Exchange Agent to pay for all Shares validly tendered (and not validly withdrawn) in the Offer. The Company shall instruct its transfer agent to register the transfer of the Shares accepted for payment by Purchaser in the Offer effective immediately after the Acceptance Time. The consideration in the Offer payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the holder thereof in cash, without interest and subject to reduction for any applicable withholding Taxes payable in respect thereof.

(f) Schedule TO; Offer Documents.

(i) As soon as practicable on the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Parent and Purchaser shall:

(A) prepare and file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the “Schedule TO”) with respect to the Offer, which Schedule TO shall contain as an exhibit the Offer to Purchase and forms of the letter of transmittal and summary advertisement and other customary ancillary documents and any information required by Rule 13e-3 promulgated under the Exchange Act, in each case, in respect of the Offer (together with all amendments and supplements thereto, the “Offer Documents”);

(B) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;

(C) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to Nasdaq in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and

(D) subject to the Company’s compliance with Section 1.2 in all material respects, cause the Offer Documents to be disseminated to holders of the Shares as and to the extent required by the Exchange Act.

(ii) Each of Parent and Purchaser shall use its reasonable best efforts to ensure that each of the Schedule TO and the Offer Documents complies in all material respects with the requirements of the applicable provisions of the Exchange Act, Securities Act and any other applicable US federal securities Laws. The Company shall furnish in writing to Parent and Purchaser all information concerning the Company and its Subsidiaries that is required by applicable Law to be included in the Offer Documents so as to enable Parent and Purchaser to comply with their obligations under this Section 1.1(f). Parent, Purchaser and the Company shall cooperate in good faith to determine the information regarding the Company that is necessary to include in the Offer Documents in order to satisfy applicable Law. Each of Parent, Purchaser and the Company shall promptly correct any information provided by it or any of its Representatives for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Purchaser shall take all steps necessary to cause the Offer Documents, as so corrected, to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable Law, or by the SEC or its staff or Nasdaq. Parent and Purchaser shall provide in writing to the Company and its counsel any written comments or other material communications that Parent, Purchaser or their counsel receive from

5

the SEC or its staff with respect to the Offer Documents promptly after such receipt, and shall provide the Company and its counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff. Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents and any written communications to the SEC or its staff with respect to the Offer Documents, in each case, prior to the filing thereof with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any reasonable comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable) and shall permit the Company and its counsel to participate in any discussions with the SEC or its staff regarding any comments thereon. Parent shall also take any other action required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” Laws and the rules and regulations thereunder in connection with the Offer or the Merger, and the Company shall furnish all information concerning the Company and the holders of the Shares as may be reasonably requested in connection with any such actions.

1.2 Company Actions.

(a) Schedule 14D-9. The Company shall (i) file with the SEC concurrently with the filing by Parent and Purchaser of the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with all amendments and supplements thereto, and including all exhibits thereto, the “Schedule 14D-9”) containing (A), unless the Company Board of Directors has effected a Company Change in Recommendation in accordance with the terms of Section 6.2(f) or Section 6.2(g), the Company Board Recommendation and (B) a notice of appraisal rights in accordance with Section 262 of the DGCL and (ii) cause the Schedule 14D-9 to be mailed to the holders of Shares promptly after commencement of the Offer. The Company shall use its reasonable best efforts to ensure that the Schedule 14D-9 complies in all material respects with the requirements of the applicable provisions of the Exchange Act and any other applicable US federal securities Laws. To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the holders of Shares (to the extent required by applicable Law) together with the Offer Documents. Each of Parent and Purchaser shall furnish in writing to the Company all information concerning Parent and Purchaser that is required by applicable Law to be included in the Schedule 14D-9 so as to enable the Company to comply with its obligations under this Section 1.2(a). Parent, Purchaser and the Company shall cooperate in good faith to determine the information regarding Parent and Purchaser that is necessary to include in the Schedule 14D-9 in order to satisfy applicable Law. Each of the Company, Parent and Purchaser shall promptly correct any information provided by it or its Representatives for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect. The Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable Law. The Company shall provide in writing to Parent, Purchaser and their counsel any written comments or other material communications the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after such receipt, and shall provide Parent, Purchaser and their counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff. The Company shall provide Parent, Purchaser and their counsel a reasonable opportunity to review and comment on the Schedule 14D-9 and any written communications to the SEC or its staff with respect to the Schedule 14D-9, in each case, prior to the filing thereof with the SEC, and the Company shall give reasonable and good faith consideration to any reasonable comments made by Parent, Purchaser and their counsel (it being understood that Parent, Purchaser and their counsel shall provide any comments thereon as soon as reasonably practicable) and shall permit Parent, Purchaser and their counsel to participate in any discussions with the SEC or its staff regarding any comments thereon. Unless the Company Board of Directors has effected a Company Change in Recommendation in accordance with the terms of Section 6.2(f) or Section 6.2(g), the Company shall include the Company Board Recommendation in the Schedule 14D-9. The Schedule 14D-9 shall include the fairness opinion of the Company’s financial advisor referenced in Section 4.22.

6

(b) Company Information. In connection with the Offer and the Merger, the Company shall, or shall cause its transfer agent to, promptly furnish Parent and Purchaser with such assistance and such information as Parent or its agents may reasonably request in order to disseminate and otherwise communicate the Offer and the Merger to the record and beneficial holders of the Shares, including a list, as of the most recent practicable date, of stockholders of the Company, mailing labels and any available listing or computer files containing the names and addresses of all record and beneficial holders of the Shares, and lists of security positions of Shares held in stock depositories (including lists of stockholders of the Company, mailing labels, listings or files of securities positions), and shall promptly furnish Parent and Purchaser with such additional information and assistance (including updated lists of the record and beneficial holders of Shares, mailing labels and lists of security positions) as Parent and Purchaser or their Representatives may reasonably request in order to communicate the Offer and the Merger to the holders of Shares. Subject to applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Contemplated Transactions, Parent and Purchaser (and their respective Representatives) shall: (i) hold in confidence the information contained in any such lists of stockholders, mailing labels and listings or files of securities positions; (ii) use such information only in connection with the Contemplated Transactions; and (iii) in the event that this Agreement is terminated in accordance with Article VIII, as promptly as reasonably practicable, return to the Company or destroy all copies of such information then in their possession or control.

1.3 Schedule 13E-3. Parent and Purchaser shall include the information required by Rule 13e-3 promulgated under the Exchange Act (“Rule 13e-3”) with respect to the Offer in the Schedule TO in the Offer Documents in satisfaction of their obligations under Rule 13e-3 (together with all amendments and supplements thereto, and including all exhibits thereto, and the information required by Rule 13e-3 included in the Schedule TO, the “Parent 13E-3”). The Company shall separately file a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Offer (together with all amendments and supplements thereto, and including all exhibits thereto, and the information required by Rule 13e-3, the “Company 13E-3” and the Company 13E-3 and the Parent 13E-3 each, a “Schedule 13E-3”). Each of Parent, Purchaser and the Company shall use their reasonable best efforts to ensure that the applicable Schedule 13E-3 complies in all material respects with the requirements of the applicable provisions of the Exchange Act and any other applicable US federal securities Laws. To the extent requested by the Company, Parent shall cause the Company 13E-3 to be mailed or otherwise disseminated to the holders of Shares (to the extent required by applicable Law) together with the Offer Documents. Each of Parent and Purchaser shall furnish in writing to the Company all information concerning Parent and Purchaser that is required by applicable Law to be included in the Company 13E-3 so as to enable the Company to comply with its obligations under this Section 1.3. The Company shall furnish in writing to Parent and Purchaser all information concerning the Company and its Subsidiaries that is required by applicable Law to be included in the Parent 13E-3 so as to enable Parent and Purchaser to comply with its obligations under this Section 1.3. Parent, Purchaser and the Company shall cooperate in good faith to determine the information regarding each Party that is necessary to include in the applicable Schedule 13E-3 in order to satisfy applicable Law. Each of the Company, Parent and Purchaser shall promptly correct any information provided by it or its Representatives for use in a Schedule 13E-3 if and to the extent that such information shall have become false or misleading in any material respect. The applicable Party shall take all steps necessary to cause such Schedule 13E-3, as so corrected, to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable Law. Each Party shall provide in writing to the other Parties and their counsel any written comments or other material communications such Party or its counsel receive from the SEC or its staff with respect to its Schedule 13E-3 promptly after such receipt, and shall provide the other Parties and their counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff. Each Party shall provide the other Parties and their counsel a reasonable opportunity to review and comment on each Schedule 13E-3 and any written communications to the SEC or its staff with respect to the Schedule 13E-3, in each case, prior to the filing thereof with the SEC, and each Party shall give reasonable and good faith consideration to any reasonable comments made by the other Parties and their counsel (it being understood that such other

7

Parties and their counsel shall provide any comments thereon as soon as reasonably practicable) and shall permit such other Parties and their counsel to participate in any discussions with the SEC or its staff regarding any comments thereon. Unless the Company Board of Directors has effected a Company Change in Recommendation in accordance with the terms of Section 6.2(f) or Section 6.2(g), the Company shall include the Company Board Recommendation in the Company 13E-3.

ARTICLE II

THE MERGER; CLOSING; SURVIVING COMPANY

2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Purchaser shall be merged with and into the Company and the separate corporate existence of Purchaser shall thereupon cease. The Company shall be the surviving company in the Merger (sometimes hereinafter referred to as the “Surviving Company”), and the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except as set forth in Article III. The Merger shall have the effects specified in this Agreement and shall be governed by Section 251(h) of the DGCL.

2.2 Closing. The closing of the Merger (the “Closing”) shall take place (a) via the electronic exchange of required Closing documentation, as soon as practicable following the Acceptance Time, and in no event later than three (3) Business Days following the day on which the last to be satisfied or waived of each of the conditions set forth in Article VII and Schedule I (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) shall have been satisfied or waived in accordance with this Agreement or (b) at such other time and/or on such other date as the Company and Parent may otherwise agree in writing (the date on which the Closing occurs, the “Closing Date”). Subject to the terms and conditions hereof, the Parties shall take all necessary and appropriate actions to cause the Merger to be effected as soon as practicable after the Acceptance Time, without a meeting of the shareholders of the Company, in accordance with Section 251(h) of the DGCL.

2.3 Effective Time. Upon the Closing, the Company and Parent will cause a Certificate of Merger with respect to the Merger in substantially the form attached hereto as Exhibit B (the “Certificate of Merger”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware as provided in Section 251(h) of the DGCL. The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware, or at such later time as may be agreed upon by the Parties in writing and set forth in the Certificate of Merger in accordance with the DGCL (the “Effective Time”).

2.4 The Certificate of Incorporation. At the Effective Time, the certificate of incorporation of the Company shall be amended and restated in its entirety as set forth in the Certificate of Merger attached hereto as Exhibit A and as so amended and restated shall be the Certificate of Incorporation of the Surviving Company (the “Certificate of Incorporation”), until thereafter amended as provided therein or by applicable Law.

2.5 The Bylaws. At the Effective Time, the bylaws of the Company shall be amended and restated to conform to the bylaws of Purchaser (except that references to the name of Purchaser shall be replaced with the name of the Company) (the “Bylaws”), and as so amended and restated shall be the Bylaws of the Surviving Company until thereafter amended as provided therein or by applicable Law.

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2.6 Directors of the Surviving Company. The directors of Purchaser immediately prior to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Company until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and the Bylaws.

2.7 Officers of the Surviving Company. The officers of Purchaser immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Company until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and the Bylaws.

ARTICLE III

EFFECT OF THE MERGER ON SECURITIES; EXCHANGE

3.1 Effect on Capital Stock.

(a) At the Effective Time, as a result of the Merger and without any action on the part of the holder of any capital stock of the Company, Parent or Purchaser:

(i) Merger Consideration. Each Share issued and outstanding immediately prior to the Effective Time (other than Shares held in treasury or held by Parent, Purchaser or any of their Subsidiaries, if any (each such Share, an “Excluded Share” and, collectively, “Excluded Shares”) and Dissenting Shares) shall be automatically converted into the right to receive (A) the Per Share Price and (B) one CVR representing the right to receive, subject to the terms and conditions of the CVR Agreement, the consideration set forth in the CVR Agreement (the CVRs together with the aggregate Per Share Price paid in accordance with this Section 3.1, the “Merger Consideration”).

(ii) At the Effective Time, all of the Shares (other than Excluded Shares) shall cease to be outstanding, shall be cancelled and shall cease to exist, and (A) each certificate (a “Certificate”) formerly representing any of the Shares (other than Excluded Shares and Dissenting Shares) and (B) each book-entry account formerly representing any uncertificated Shares (“Uncertificated Shares”) (other than Excluded Shares and Dissenting Shares) shall thereafter represent only the right to receive the Merger Consideration, without interest, in each case to be issued or paid in consideration therefor upon surrender of such Certificate in accordance with Section 3.2, in the case of certificated Shares, and upon receipt by the Exchange Agent of an “agent’s message” in customary form in accordance with Section 3.2(g) in the case of Uncertificated Shares.

(iii) Cancellation of Excluded Shares. Each Excluded Share shall, by virtue of the Merger and without any action on the part of the Company, Parent, Purchaser or the holder thereof, cease to be outstanding, and be cancelled without payment of any consideration therefor and shall cease to exist.

(b) Purchaser. Each share of common stock, par value $0.001 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of the Surviving Company, and such converted shares shall constitute the only outstanding shares of capital stock of the Surviving Company.

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3.2 Exchange of Certificates.

(a) Exchange Agent and Exchange Fund. Prior to the Effective Time, the Parties shall designate American Stock Transfer & Trust Company, LLC (“AST”) or if AST is unwilling or unable serve then such other mutually agreeable bank or trust company as the depository and exchange agent in connection with the Merger (the “Exchange Agent”). The Exchange Agent shall also act as the agent for the Company’s stockholders for the purpose of receiving and holding their Certificates and Uncertificated Shares and shall obtain no rights or interests in the shares represented thereby. At or prior to the Acceptance Time, Parent shall deposit (or cause to be deposited) with the Exchange Agent, by wire transfer of immediately available funds, an amount of cash sufficient to pay the aggregate Per Share Price to which such holders of Shares become entitled pursuant to Section 1.1(e) and Section 3.1(a)(i) (such cash, the “Exchange Fund”) for payment to the holders of Shares pursuant to Section 1.1(e) and Section 3.1(a)(i).

(b) Exchange Procedures. Promptly after the Effective Time (and in any event within five (5) Business Days thereafter), the Exchange Agent shall mail to each holder of record of Shares represented by a Certificate (other than holders of Excluded Shares) or Uncertificated Shares (i) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(e)) or Uncertificated Shares to the Exchange Agent, such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions for surrendering the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(e)) or Uncertificated Shares (including instructions for sending an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request)) to the Exchange Agent. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 3.2(e)) to the Exchange Agent in accordance with the terms of such letter of transmittal or with respect to Uncertificated Shares receipt of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request) by the Exchange Agent, the holder of such Certificate or Uncertificated Share shall be entitled to receive in exchange therefor an amount in cash and CVRs pursuant to Section 3.1(a)(i), less any required Tax withholdings as provided in Section 3.2(f). The Certificate or Uncertificated Share so surrendered shall forthwith be cancelled. Until due surrender of the Certificates or Uncertificated Share, each Certificate and Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive cash and CVRs pursuant to Section 3.1(a)(i). In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the applicable portion of Merger Consideration to be exchanged upon due surrender of the Certificate or Uncertificated Share pursuant to Section 3.1(a) may be issued and paid to such transferee if the Certificate formerly representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and the Person requesting such payment shall pay any transfer Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable.

(c) Transfers. From and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the Shares that were outstanding immediately prior to the Effective Time.

(d) Termination of Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any investments of the Exchange Fund) that remains unclaimed by the holders of Shares for one hundred eighty (180) days after the Effective Time shall be delivered, at Parent’s option, to Parent. Any holder of Shares (other than Excluded Shares and Dissenting Shares) who has not theretofore complied with Section 3.2(b) shall thereafter look only to Parent for delivery of any cash and CVRs (after giving effect to any required Tax withholdings as provided in Section 3.2(f)) upon due surrender of its Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(g)) or Uncertificated Shares,

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without any interest thereon. Notwithstanding the foregoing, none of the Surviving Company, Parent, Exchange Agent or any other Person shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.

(e) Lost, Stolen or Destroyed Certificates. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, and, if required by Parent or the Exchange Agent, the posting by such Person of a bond in such reasonable amount as Parent or the Exchange Agent, as applicable, may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate, the cash and CVRs issuable or payable pursuant to this Article III (after giving effect to any required Tax withholdings as provided in Section 3.2(f)) had such lost, stolen or destroyed Certificate been surrendered.

(f) Withholding Rights. Each of the Parent, the Purchaser, the Company, the Surviving Company and the Exchange Agent (each, a “Withholding Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement, including any consideration payable pursuant to the Merger and any payments under the CVR Agreement, to any holder of Shares, Company Options, or any other recipient of payments hereunder any amounts it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable state, local or foreign Tax Law. To the extent that amounts are so withheld and timely remitted by the Withholding Agent to the applicable Governmental Entity, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder or other recipient in respect of which such deduction and withholding was made.

(g) Uncertificated Shares. Any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to this Article III in respect of such Uncertificated Shares. In lieu thereof, each registered holder of one or more Uncertificated Shares whose Shares were converted into the right to receive the Merger Consideration, shall, upon receipt by the Exchange Agent of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request), be entitled to receive, and the Surviving Company shall cause the Exchange Agent to pay and deliver as soon as reasonably practicable after the Effective Time, the Merger Consideration for each Uncertificated Share, and the Uncertificated Shares of such holder shall forthwith be cancelled. No interest will be paid or accrued on any amount payable to a holder of Uncertificated Shares.

3.3 Adjustments to Prevent Dilution. In the event that during the Pre-Closing Period the Company effects a Share Adjustment, the Merger Consideration shall be equitably adjusted to eliminate the effects of such event on the Merger Consideration.

3.4 Treatment of Equity Awards and ESPP.

(a) At the Effective Time, each outstanding, unexercised Company Option that is vested at the Effective Time, or that vests as a result of the consummation of the Contemplated Transactions (each, a “Vested Company Option”) and has an exercise price per Share that is less than the Per Share Price shall, without any action on the part of Parent, the Company or the holder thereof, be cancelled and converted automatically into the right to receive (i) an amount (without interest) in cash, equal in value to (A) the total number of Shares subject to the Vested Company Option multiplied by (B) the excess, if any, of the Per Share Price over the exercise price per Share underlying such Vested Company Option, less applicable Taxes required to be withheld with respect to such payment (the “Closing Vested Company Option Consideration”), and (ii) a CVR (together, the “Vested Company Option Consideration”). The

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Closing Vested Company Option Consideration shall be paid to (i) any holders who are employees or former employees of the Company through payroll, less applicable withholdings and deductions within 30 days following the Closing and (ii) all other holders, through the Company’s accounts payable. At the Effective Time, each Vested Company Option that has an exercise price per Share that is greater than or equal to the Per Share Price will be cancelled immediately for no consideration or payment and without any further action on the part of any Person. Following the Effective Time, no Vested Company Option shall remain outstanding, and each former holder of a Vested Company Option shall cease to have any rights with respect thereto, except for the right (if any) to receive the Vested Company Option Consideration in exchange for such Vested Company Option in accordance with this Section 3.4(a).

(b) At the Effective Time, each Company Option that is not a Vested Company Option (each, an “Unvested Company Option”) shall, without any action on the part of Parent, the Company or the holder thereof, be cancelled immediately for no consideration or payment. Following the Effective Time, no Unvested Company Option shall remain outstanding, and each former holder of a Unvested Company Option shall cease to have any rights with respect thereto.

(c) Notice of Option Treatment. As soon as practicable following the execution of this Agreement, the Company shall deliver to each holder of a Company Option a letter describing the treatment of such Company Option pursuant to this Section 3.4, and providing instructions for obtaining payment with respect to such Company Option, if any, following the Effective Time, which payment, if any, shall be conditioned on such holder timely executing and delivering to the Company an acknowledgement of and release with respect to the cancellation of the Company Option (an “Option Acknowledgement”); provided that prior to such delivery, the Company shall provide Parent with drafts of each form of Option Acknowledgement and shall incorporate all of Parent’s reasonable comments.

(d) Further Action. At or prior to the Effective Time, the Company and the Company Board shall adopt any resolutions and take any actions which are necessary to effectuate the treatment of the Company Options as set forth in this Section 3.4. As of the Effective Time, the Company Stock Plans will terminate and all rights under any other plan, program or arrangement providing for the issuance or grant of any other interest with respect to the capital stock of the Company or any Company Subsidiary will be cancelled.

(e) No current offering periods are underway under the ESPP as of the date of this Agreement. As soon as practicable following the date of this Agreement, the Company shall take all actions with respect to the ESPP (including, if appropriate, amending the terms of the ESPP) to provide that no offering periods will commence under the ESPP following the date of this Agreement and the ESPP shall terminate prior to the Effective Time.

3.5 CVR Agreement. At or prior to the Acceptance Time, the Parent and the Purchaser will authorize and duly adopt, execute and deliver, and will ensure that a duly qualified Rights Agent executes and delivers, the CVR Agreement to the Company, subject to any reasonable revisions to the CVR Agreement that are requested by such Rights Agent (provided that such revisions are not, individually or in the aggregate, materially detrimental to any holder of CVRs).

3.6 Dissenting Shares.

(a) Notwithstanding anything to the contrary contained in this Agreement, Dissenting Shares shall not be converted into or represent the right to receive the Merger Consideration in accordance with Section 3.1, but shall be entitled only to such rights as are granted by the DGCL to a holder of Dissenting Shares.

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(b) If any Dissenting Shares shall lose their status as such (through failure to perfect or otherwise), then, as of the later of the Effective Time or the date of loss of such status, such shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Section 3.1, and shall not thereafter be deemed to be Dissenting Shares.

(c) The Company shall give Parent: (i) prompt notice of any written demand for appraisal received by the Company prior to the Effective Time pursuant to the DGCL, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the DGCL that relates to such demand; and (ii) the opportunity to participate in all negotiations and proceedings with respect to any such demand, notice or instrument. The Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand, notice or instrument unless the Parent shall have given its written consent to such payment or settlement offer, which consent shall not be unreasonably withheld, conditioned or delayed.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to Parent as set forth in the statements contained in this Article IV except as set forth in the Company SEC Documents filed with, or furnished to, and publicly available after January 1, 2021 but prior to the date of this Agreement (the “Filed Company SEC Documents”) (excluding any disclosures in the Filed Company SEC Documents in any risk factors section, any forward-looking disclosure in any section related to forward-looking statements and other disclosures to the extent such disclosures are predictive or forward-looking in nature, other than, in each case, historical facts included therein) or in the disclosure letter delivered by the Company to Parent at or before the execution and delivery of this Agreement (the “Company Disclosure Letter”). The Company Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article IV, and the disclosure in any section of the Company Disclosure Letter shall be deemed to qualify other sections in this Article IV to the extent that it is reasonably apparent on the face of such disclosure that such disclosure also qualifies or applies to such other sections.

4.1 Organization, Good Standing and Qualification. Each of the Company and its Subsidiaries (such Subsidiaries of the Company, the “Company Subsidiaries”) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good standing, to the extent such jurisdiction recognizes such concept), except, in the case of the Company Subsidiaries, where the failure to be so organized, existing or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company and the Company Subsidiaries is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has filed with the SEC true and complete copies of the amended and restated certificate of incorporation of the Company, dated as of September 17, 2019 (the “Company Charter”) and the amended and restated bylaws of the Company in effect as of the date of this Agreement, dated as of September 17, 2019 (the “Company Bylaws”), in each case as in effect on the date of this Agreement.

4.2 Company Subsidiaries.

(a) All the outstanding shares of capital stock or voting securities of, or other equity interests in, each of the Company Subsidiaries and any shares of capital stock, voting securities or equity interests in any other entity which interests are owned by the Company or any Company Subsidiary have been validly issued and are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all material Liens, other than Permitted Liens or Liens arising under applicable securities Laws. Section 4.2(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of the Company Subsidiaries.

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(b) Except as set forth on Section 4.2(b) of the Company Disclosure Letter, and except for the capital stock and voting securities of, and other equity interests in, the Company Subsidiaries, neither the Company nor any Company Subsidiary owns, directly or indirectly, any capital stock or voting securities of, or other equity interests in, or any interest convertible into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other entity other than ordinary course investments in publicly traded securities constituting one percent or less of a class of outstanding securities of any entity.

4.3 Capital Structure.

(a) The authorized capital stock of the Company consists of 300,000,000 Shares and 10,000,000 shares of preferred stock, par value $0.0001 (the “Company Preferred Stock” and, together with the Shares, the “Company Capital Stock”). At the close of business on April 14, 2023, (i) 33,152,498 Shares were issued and outstanding, (ii) no shares of Company Preferred Stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 5,958,303 Shares were reserved and available for issuance pursuant to the Company Stock Plans, including 5,205,659 Shares issuable upon exercise of outstanding Company Options (whether or not vested and whether or not granted under the Company Stock Plans), (v) 724,258 Shares were reserved for issuance pursuant to the ESPP, and (vi) no Shares are subject to outstanding purchase rights under the ESPP. Except as set forth in this Section 4.3(a), at the close of business on April 14, 2023, no shares of capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. From the close of business on April 14, 2023 to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Shares upon the exercise of Company Options, in each case, outstanding at the close of business on April 14, 2023 and in accordance with their terms in effect at such time. The Company has delivered or made available to Parent copies of all Company Stock Plans covering the Company Options outstanding as of the date of this Agreement, and the forms of all stock option agreements evidencing such Company Options.

(b) All outstanding shares of Company Capital Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise, settlement or vesting of the Company Options will be, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter, the Company Bylaws, any Contract to which the Company is a party or otherwise bound, or by applicable Law. Except as set forth above in this Section 4.3 there are no issued, reserved for issuance or outstanding, and there are no outstanding obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (x) any capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, (y) any warrants, calls, options or other rights to acquire from the Company or any Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary or (z) any rights issued by or other obligations of the Company or any Company Subsidiary that are linked in any way to the price of any class of the capital stock of the Company or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or

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paid on any shares of capital stock of the Company or any Company Subsidiary. Other than (1) the withholding of Shares to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plans and (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards, there are not any outstanding obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (x), (y) or (z) of the immediately preceding sentence. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Other than as contemplated by this Agreement, neither the Company nor any of the Company Subsidiaries nor, to the Knowledge of the Company, any of the Company’s stockholders is a party to (i) any voting agreement with respect to the voting of any capital stock or voting securities of, or other equity interests in, the Company or (ii) any agreement pursuant to which any Person is entitled to elect, designate or nominate any director of the Company or any of the Company Subsidiaries.

(c) No Subsidiary of the Company owns any Shares.

4.4 Corporate Authority and Approval.

(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the Contemplated Transactions. On or prior to the date of this Agreement, the Company Board adopted resolutions, by vote at a meeting duly called, at which the requisite participating directors of the Company were present, and in support of the Company Board Recommendation. As of the date of this Agreement, such resolutions have not been amended or withdrawn.

(b) Assuming (i) the satisfaction of the Minimum Condition, (ii) the absence of any amendment, modification or other change to the DGCL or this Agreement that would render Section 251(h) of the DGCL inapplicable to this Agreement and (iii) the accuracy of Parent’s and Purchaser’s representations and warranties set forth in Section 5.10, no vote of the holders of Shares is necessary to adopt or approve the Contemplated Transactions.

(c) The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Parent and Purchaser, this Agreement constitutes its legal, valid and binding obligation, enforceable against the Company in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity (the “Bankruptcy and Equity Exception”).

(d) Prior to the date of this Agreement, assuming the accuracy of Parent’s and Purchaser’s representations and warranties set forth in Section 5.10, the Company and the Company Board have taken all action necessary to exempt each of the execution and delivery of this Agreement and the Contemplated Transactions, or make not subject, to (i) the provisions of Section 203 of the DGCL, (ii) any other applicable “fair price”, “moratorium”, “control share acquisition” or other similar antitakeover statute or similar statute or regulation or (iii) any provision of the organizational documents of the Company and the Company Subsidiaries that would require any corporate approval other than that otherwise required by the DGCL or other applicable state Law. There is no stockholder rights plan, “poison pill” antitakeover plan or similar device in effect to which the Company or any of its Subsidiaries is subject, party or otherwise bound.

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4.5 No Conflicts; Consents.

(a) Except as set forth on Section 4.5(a) of the Company Disclosure Letter, the execution and delivery of this Agreement by the Company does not, and the performance by the Company of its obligations hereunder and the consummation of the Contemplated Transactions will not, (i) conflict with, or result in any violation of any provision of, the Company Charter, the Company Bylaws or the comparable charter or organizational documents of any Company Subsidiary, (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or give rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital stock or any loss of a material benefit under, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any Company Subsidiary under, any provision of any Company Material Contract or any material Company Permit or (iii) conflict with, or result in any violation of any provision of, subject to the filings and other matters referred to in Section 4.5(b), any Judgment or Law, in each case, applicable to the Company or any Company Subsidiary or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.

(b) Except as set forth on Section 4.5(b) of the Company Disclosure Letter, no Consent of or from, or registration, declaration, notice or filing made to or with any Governmental Entity is required to be obtained or made by, or with respect to the Company or any Company Subsidiary in connection with the execution and delivery of this Agreement or its performance of its obligations hereunder or the consummation of the Contemplated Transactions, other than (i) (A) the filing with the SEC of the Offer Documents, the Schedule 14D-9 and the Schedule 13E-3 in definitive form, and (B) the filing with the SEC of such reports and other filings under, and such other compliance with, the Exchange Act and the Securities Act, and the rules and regulations thereunder, as may be required in connection with this Agreement, and the Contemplated Transactions, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and the filing of appropriate documents with the relevant authorities of the other jurisdictions in which the Company are qualified to do business, (iii) such filings with Nasdaq as are required to permit the consummation of the Offer and the Merger, and (iv) such other matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.

4.6 Company SEC Documents; Financial Statements; No Undisclosed Liabilities.

(a) The Company has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) required to be furnished or filed by the Company with the SEC since December 31, 2022 (such documents, together with any documents filed with the SEC during such period by the Company on a voluntary basis on a Current Report on Form 8-K, being collectively referred to as the “Company SEC Documents”).

(b) Each Company SEC Document (i) at the time filed (or, if amended or superseded by a filing or amendment prior to the date of this Agreement, then at the time of such filing or amendment), complied in all material respects with the requirements of SOX and the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Document and (ii) did not at the time it was filed (or, if amended or superseded by a filing or amendment prior to the date of this Agreement, then at the time of such filing or amendment) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the consolidated financial statements of the Company included in the Company SEC Documents complied at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form

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10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited statements, to normal year-end audit adjustments); provided, however, that no representation is made as to the accuracy of any financial projections or forward-looking statements or the completeness of any information furnished by the Company to the SEC solely for the purposes of complying with Regulation FD promulgated under the Exchange Act.

(c) Except (i) as reflected or reserved against in the Company’s consolidated unaudited balance sheet as of February 28, 2023 (or the notes thereto) (the “Company Balance Sheet”) as included in the Company SEC Documents, (ii) for liabilities and obligations incurred since the date of the Company Balance Sheet in the ordinary course of business that are not required to be reflected or reserved against in the Company Balance Sheet and (iii) for liabilities and obligations incurred as permitted by this Agreement or in connection with the Contemplated Transactions, neither the Company nor any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, have had or would reasonably be expected to have a Company Material Adverse Effect. For purposes of this Section 4.6, the term “liabilities” shall not include liabilities or obligations of the Company or any Company Subsidiary to perform under or comply with any applicable Law, action, Judgment or Contract, but would include such liabilities and obligations if there has been a default or failure to perform or comply by the Company or any Company Subsidiary with any such liability or obligation if such default or failure would, with the giving of notice or passage of time or both, reasonably be expected to result in a monetary obligation or the imposition of injunctive or other equitable remedies.

4.7 Internal Controls and Procedures.

(a) Each of the chief executive officer of the Company and the chief financial officer of the Company (or each former chief executive officer of the Company and each former chief financial officer of the Company, as applicable) has made all applicable certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of SOX with respect to the Company SEC Documents, and the statements contained in such certifications are true and accurate. For purposes of this Agreement, “chief executive officer” and “chief financial officer” shall have the meanings given to such terms in SOX. None of the Company or any of the Company Subsidiaries has outstanding, or has arranged any outstanding, “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX.

(b) The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is designed to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, and that receipts and expenditures of the Company and Company Subsidiaries are being made only in accordance with appropriate authorizations of the Company’s management and the Company Board, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company and the Company Subsidiaries’ properties or assets that could have a material effect on the Company’s financial statements.

(c) Except as set forth on Section 4.7(c) of the Company Disclosure Letter, the Company is, and since January 1, 2021 has been, in compliance in all material respects with the applicable Nasdaq listing and corporate governance rules and requirements.

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(d) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) utilized by the Company are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the periods specified in the rules and forms of the SEC and that all such information required to be disclosed is accumulated and communicated to the management of the Company to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of the Company to make the certifications required under the Exchange Act with respect to such reports.

(e) Neither the Company nor any Company Subsidiary is a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company Subsidiaries in the Company’s or such Company Subsidiary’s published financial statements.

4.8 Absence of Certain Changes. From the date of the Company Balance Sheet until the date of this Agreement, except as contemplated or permitted hereby, there has not been a Company Material Adverse Effect. From the date of the Company Balance Sheet until the date of this Agreement, except as contemplated hereby, (a) the business of the Company and its Subsidiaries, taken as a whole, has been conducted in the ordinary course of the Company’s business in all material respects and (b) except as set forth on Section 4.8 of the Company Disclosure Letter, none of the Company or any of its Subsidiaries has taken any action that would have required the consent of the Parent under Section 6.1(a) had such action or event occurred after the date of this Agreement.

4.9 Litigation and Liabilities. As of the date of this Agreement, there is no suit, action or other proceeding pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary or any of their respective properties or assets that, individually or in the aggregate, has resulted in or would reasonably be expected to result in a liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, or that would reasonably be expected to prevent or materially delay the consummation of the Merger. As of the date of this Agreement, there is no Judgment outstanding against or, to the Knowledge of the Company, investigation by any Governmental Entity involving the Company or any Company Subsidiary or any of their respective properties or assets that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.

4.10 Benefits Matters; ERISA Compliance.

(a) Section 4.10(a) of the Company Disclosure Letter (i) sets forth a true, complete and correct list of each material Company Plan, and (ii) specifies, with respect to each such Company Plan, the applicable jurisdiction covered by such Company Plan, and identifies each Company Plan that is maintained or sponsored by a professional employer organization.

(b) True and complete copies of the following documents, with respect to each material Company Plan, where applicable, have been provided or made available to Parent on or prior to the date of this Agreement: (i) all documents embodying or governing such Company Plan (or, if unwritten, a written summary thereof), and all amendments thereto, and to the extent applicable, any related trust or other funding vehicle, (ii) the most recent determination letter or opinion letter received from or issued by

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the IRS with respect to each Company Plan intended to qualify under Section 401 of the Code, (iii) the three most recently filed IRS Form 5500s, (iv) the most recent actuarial valuation report, (v) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto, (vi) all non-discrimination testing for the three most recently completed plan years, and (vii) all non-routine correspondence to and from any Governmental Entity.

(c) All Company Plans are, and have been established, operated and administered, in compliance with their terms and applicable Laws (including, if applicable, ERISA and the Code) in all material respects. Each Company Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in compliance with Section 409A of the Code and applicable guidance thereunder and no payment to be made under any Company Plan is, or to the Knowledge of the Company, will be, subject to the penalties of Section 409A(a)(1) of the Code. Each Company Option has been granted with an exercise price equal to fair market value on the date of grant (or repricing, as the case may be) and is not subject to taxation under Section 409A of the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and no breach of fiduciary duty (as determined under ERISA) has occurred with respect to any Company Plan that would reasonably be expected to result in any liability to the Company or any Company Subsidiary. None of the Company nor any Company Subsidiary or ERISA Affiliate is subject to any penalty or Tax with respect to any Company Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. The Company and each Company Subsidiary and ERISA Affiliate have timely made all contributions, distributions, reimbursements and payments that are due with respect to each Company Plan, and all contributions, distributions, reimbursements and payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued with respect to each Company Plan. Each Company Plan can be amended, terminated or otherwise discontinued at any time in accordance with its terms, without liability to Parent, the Company or any Company Subsidiary (other than ordinary administration expenses).

(d) Each Company Plan that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter or can rely upon a favorable opinion letter from the Internal Revenue Service (the “IRS”) and, to the Knowledge of the Company, circumstances do not exist that are likely to result in the loss of the qualification of such plan under Section 401(a) of the Code. Each non-U.S. Company Plan, to the extent required to be registered or approved by any Governmental Entity, has been registered with, or approved by, such Governmental Entity and, to the Knowledge of the Company, nothing has occurred that would adversely affect such registration or approval.

(e) Neither the Company nor any Company Subsidiary nor any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (each, an “ERISA Affiliate”) has, within the past six (6) years, maintained or contributed to, or has, within the past six (6) years, been obligated to maintain or contribute to (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA (including any “multiemployer plan” within the meaning of Section (3)(37) of ERISA) or any other defined benefit pension plan, (ii) a “multiple employer plan” as defined in Section 413(c) of the Code, (iii) a “funded welfare plan” within the meaning of Section 419 of the Code or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.

(f) There are no actions, suits or claims pending, or, to the Knowledge of the Company, threatened against any Company Plan or against the assets of any Company Plan. There are no pending or, to the Knowledge of the Company or any Company Subsidiary, threatened audits, inquiries, investigations or proceedings relating to the Company Plans or any fiduciary or service provider thereof, and to the Knowledge of the Company and Company Subsidiaries, there is no reasonable basis for any such, audits, inquiries, investigations or proceedings. The Company and each Company Subsidiary is in compliance in all material respects with the applicable requirements of Section 4980B of the Code and any similar state law, and the applicable requirements of the Patient Protection and Affordable Care Act of 2010, as amended.

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(g) Except as set forth on Section 4.10(g) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions could reasonably be expected to, either alone or in combination with any other event, (i) result in any payment becoming due to any current or former employee, officer, director or other service provider of the Company or any Company Subsidiary (outside of the Vested Company Option Consideration), (ii) increase the amount or value of any compensation or benefits under any Company Plan or otherwise payable to any current or former employee, officer, director or other service provider of the Company or any Company Subsidiary, (iii) result in the acceleration of the time of payment, vesting or funding of any compensation or benefits, (iv) result in forgiveness (in whole or in part) of any outstanding loan to any current or former employee, officer, director or other service provider of the Company or any Company Subsidiary, (v) result in any “excess parachute payment” (within the meaning of Section 280G of the Code and whether or not such payment is considered to be reasonable compensation for service rendered) becoming due to any current or former employee, officer, director or other service provider of the Company or any Company Subsidiary or (vi) limit the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Company Plan or related trust. Neither the Company nor any Company Subsidiary has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, officer, director or other service provider of the Company or any Company Subsidiary for any excise or additional tax, interest or penalties incurred by such individual under Section 4999 or Section 409A of the Code.

(h) Neither the Company nor any Company Subsidiary provides, is required to provide, or has promised to provide, any post-employment or post-retirement health, medical or life insurance benefits for retired or former employees or their dependents, except as required by Section 4980B of the Code.

4.11 Labor Matters.

(a) The Company has provided to Parent a complete and correct list, as of the date of this Agreement, of all current employees, consultants, and independent contractors of the Company and a Company Subsidiary which sets forth the following information with respect to each, as applicable: (i) name (or identification number, if required by applicable Law), (ii) status as an employee, consultant, or independent contractor, (iii) title or position, (iv) the entity or entities by which such individual is employed or engaged, (v) hire date, (vi) current annual or hourly base compensation or retention rate, (vii) target bonus or incentive compensation rates for current fiscal year, (viii) accrued but unused vacation or paid time off, (ix) active or inactive status, (x) full-time or part-time status, (xi) exempt or nonexempt status; and (xii) employment or engagement location.

(b) Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in accordance with applicable Laws, all employees of the Company and the Company Subsidiaries are employed on an at will basis and their employment can be terminated at any time, with or without notice, severance, or other similar benefit, for any reason or no reason at all. No employee of the Company or a Company Subsidiary has been granted the right to continued employment by the Company or any successor. Except as set forth on Section 4.11(b) of the Company Disclosure Letter, the engagements of all consultants and independent contractors are terminable by the Company without advance notice, termination fee, or other penalty.

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(c) The Company and the Company Subsidiaries are, and since January 1, 2020 have been, in compliance in all material respects with all applicable Laws related to labor and employment, including but not limited to, those pertaining to payment of wages and other compensation, overtime, meal and rest break requirements, classification of employees as exempt or non-exempt and classification of workers as employees or independent contractors, hours of work, leaves of absence, equal opportunity, discrimination, harassment, immigration, occupational health and safety, workers’ compensation, background checks, hiring, pre-employment tests, affirmative action, equal pay, restrictive covenants and the payment of social security and other Taxes. There are no, and since January 1, 2020, there have not been any, litigation, charges, investigations, administrative proceedings, governmental audits, governmental investigations, arbitrations, mediation, or complaints related to labor or employment matters (including the matters listed in the foregoing sentence), including any such proceedings threatened or pending before the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the U.S. Occupational Health and Safety Administration, the Workers Compensation Appeals Board, or any other Governmental Entity, against or involving the Company or any Company Subsidiary or pertaining to any Company (or Company Subsidiary) employee or independent contractor. The Company has withheld and paid to the appropriate Governmental Entity or is holding for payment not yet due to such Governmental Entity all amounts required to be withheld from all payments accrued up to the Closing Date to employees, consultants, and independent contractors of the Company and a Company Subsidiary and is not liable for any arrears of wages, Taxes, penalties or other sums for failure to comply with any of the foregoing.

(d) The Company and the Company Subsidiaries have, since January 1, 2020, (i) properly classified their U.S.-based employees as exempt or nonexempt under all applicable Laws, and (ii) properly classified their workers as employees or independent contractors under all applicable Laws.

(e) The Company and Company Subsidiary are not, and have never been, party to any collective bargaining or other contract with any labor union or organization. No labor organization or group of employees of the Company or any Company Subsidiary has made a demand for recognition or certification, and to the Knowledge of the Company, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. To the Knowledge of the Company, there are no organizing activities, and there are no strikes, work stoppages, slowdowns, lockouts, arbitrations, grievances, or other labor disputes pending or, to the Knowledge of the Company, threatened against or involving the Company or any Company Subsidiary.

(f) The Company is in full compliance with the Worker Readjustment and Notification Act (29 USC §2101) and any other similar Laws or other legal requirements (collectively, the “WARN Act”). The Company has never engaged in any redundancies, reductions in force, mass layoffs, plant closings, or other employment action that required, or reasonably could have required, advance notice under the WARN Act. No Company employees have experienced an “employment loss,” as defined in the WARN Act, in the past 90 days.

(g) As of the date of this Agreement, since January 1, 2020, (i) no claims, allegations, or reports of discrimination, retaliation, harassment, or sexual harassment have been made to the Company against an employee, consultant, or independent contractor of the Company or any Company Subsidiary and (ii) the Company has never conducted any investigations or entered into any settlement agreements with respect to any such claims, allegations, or reports.

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4.12 Compliance with Laws. Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company and the Company Subsidiaries are, and since January 1, 2021 have been, in compliance with all applicable Laws and Company Permits. Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, there is no, and since January 1, 2021, there has been no, proceeding, action, notice, order of forfeiture or complaint, demand or investigation by or before any Governmental Entity pending or, to the Knowledge of the Company, threatened alleging that the Company or a Company Subsidiary is not in compliance with any applicable Law. There is no actual or threatened revocation, cancellation, termination, suspension, restriction, adverse modification or non-renewal of any Company Permit. The actions of the applicable Governmental Entities granting all Company Permits have not been reversed, stayed, enjoined, annulled or suspended, and there is not pending or threatened any application, petition, objection or other pleading with any other Governmental Entity which challenges or questions the validity of or any rights of the holder under any Company Permits.

4.13 Contracts.

(a) Except for this Agreement, neither the Company nor any Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.

(b) Section 4.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies, of (i) each Contract to which the Company or any of the Company Subsidiaries is a party that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, (B) would, to the Knowledge of the Company, restrict in any material respect the ability of Parent or any of its Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, (C) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, (D) provides for “exclusivity” or any similar requirement in favor of any third party in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, or (E) would require disclosure under Item 404 of Regulation S-K, (ii) each loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar agreement pursuant to which any material Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred, other than any such agreement between or among the Company and the wholly owned Company Subsidiaries, (iii) each Company Lease, (iv) each partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case, material to the Company and the Company Subsidiaries, taken as a whole, (v) each Contract for Company Licensed IP, (vi) each Contract under which the Company or any Company Subsidiary provides an express covenant not to sue for infringement of Intellectual Property Rights, (vii) each employment agreement, offer letter, independent contractor agreement, or other Contract with any current employee, consultant, and independent contractor of the Company or a Company Subsidiary that is not immediately terminable at-will by the Company without notice, severance, or other cost or liability, (viii) each Contract providing for retention payments, change of control payments, severance, accelerated vesting or any other payment or benefit that may or will become due as a result of the Merger; (ix) each Contract related to or pursuant to which conduct of any research, development (clinical or otherwise), manufacture, or commercialization of the Company product candidate STS101 (or component thereof); and (x) each agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is no ongoing material liability or material obligation

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of the Company or any Company Subsidiaries) or calls for aggregate payments or receipts by the Company and its Subsidiaries of more than $50,000 over the remaining term of such Contract. Each Contract or undertaking of the type described in this Section 4.13(b) and each Filed Company Contract is referred to herein as a “Company Material Contract”.

(c) Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract (including, for purposes of this Section 4.13(c), any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception, (ii) each such Company Material Contract is in full force and effect and (iii) none of Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder.

4.14 Environmental Matters. Except for matters that, individually or in the aggregate, are not reasonably likely to result in a liability that is material to the Company and its Subsidiaries, taken as a whole: (i) neither the Company nor any of its Subsidiaries is or has since January 1, 2021 been in violation of any Environmental Law; (ii) the Company and its Subsidiaries have all permits, licenses and other authorizations required under any Environmental Law and the Company and its Subsidiaries are in compliance with such permits, licenses and other authorizations; (iii) the Company has not received any written notice or otherwise have Knowledge of any allegations that the Company is in violation of or subject to any Legal Proceeding arising under any Environmental Laws which remains unresolved; (iv) no Legal Proceeding is pending or, to the Knowledge of the Company, threatened, that alleges a breach, violation or liability under Environmental Laws; (v) the Company has not manufactured, distributed, disposed of, arranged for the disposal of, transported, released, or exposed any Person to, any Hazardous Material, and no property is contaminated with any such Hazardous Material in a manner that would result in liability pursuant to Environmental Law; and (vi) the Company has not retained or assumed, either contractually or by operation of law, any liabilities or obligations of any other Person arising under Environmental Law. The Company has made available all environmental site assessments, environmental audits and other material environmental documents in the Company’s possession or control relating to the Company or any of the Company’s current or former facilities.

4.15 Taxes. Except as set forth on Section 4.15 of the Company Disclosure Letter:

(a) The Company and the Company Subsidiaries have filed all income and other material Tax Returns that are or have been required to be filed by them, and all such Tax Returns were true, correct and complete in all material respects. All Taxes of the Company and the Company Subsidiaries have been timely paid (whether or not shown or required to be shown on any Tax Return). None of the Company or the Company Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions for which no approval is required. There are no security interests or other encumbrances on any of the assets of the Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax, other than Permitted Liens. No written claim has ever been made in a jurisdiction where the Company or any Company Subsidiary does not file Tax Returns that the Company or the Company Subsidiary is or may be subject to taxation by, or required to file Tax Returns in, that jurisdiction.

(b) The Company and the Company Subsidiaries have timely withheld and paid to the appropriate Governmental Entity all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

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(c) There is no dispute, audit, investigation, proceeding or claim concerning any Tax liability of the Company or any Company Subsidiary raised by any Governmental Entity in writing that remains unpaid, and none of the Company or Company Subsidiaries has received written notice of any threatened disputes, audits, inquiries, investigations, proceedings or claims relating to any Taxes.

(d) None of the Company or any Company Subsidiary has, or has had, any permanent establishment or other taxable presence in any jurisdiction other than its jurisdiction of incorporation.

(e) None of the Company or any Company Subsidiary has waived any statute of limitations in respect of Taxes or agreed to, or requested, any extension of time with respect to a Tax assessment or deficiency, in each case that is currently in effect.

(f) There are no agreements relating to the indemnification, reimbursement, allocating or sharing of Taxes to which the Company or any Company Subsidiary is a party other than customary agreements entered into in the ordinary course of business, the principal purpose of which is not related to Taxes.

(g) None of the Company or the Company Subsidiaries (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or a group filing Tax Returns on a consolidated, affiliated, combined, unitary or similar basis other than the affiliated group of which the Company is the common parent or (ii) has any liability for the Taxes of any Person (other than the Company or any Company Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax Law) as a transferee or successor, by contract or otherwise by operation of law.

(h) Neither the Company nor any Company Subsidiary is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.

(i) None of the Company Subsidiaries that is a foreign corporation for U.S. federal income Tax purposes (i) will recognize a material amount of “subpart F income” within the meaning of Section 952 of the Code or “global intangible low-taxed income” within the meaning of Section 951A of the Code during a taxable year that includes but does not end on the Closing Date, (ii) has any “investments of earnings in United States property” as defined in Section 956 of the Code, or (iii) is or was required to include any amount as “subpart F income” pursuant to Section 965(a) of the Code.

(j) None of the Company or any Company Subsidiary is or was a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code.

(k) The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.

(l) There are no Tax rulings, requests for rulings, or “closing agreements” (as described in Section 7121 of the Code or any corresponding provision of state, local or non-U.S. Tax Law) relating to the Company or any Company Subsidiary that have been received, agreed to, or are pending with any Governmental Entity.

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(m) Section 4.15(m) of the Company Disclosure Letter sets forth the entity classification of the Company and each of the Company Subsidiaries for U.S. federal income tax purposes. The Company has not made an election or taken any other action to change its U.S. federal and state income tax classification from such classification.

(n) Neither the Company nor any Company Subsidiary has ever been a distributing or controlled corporation in a transaction intended to qualify under Section 355 of the Code.

(o) Neither the Company nor any Company Subsidiary has participated in a “listed transaction” within the meaning of Section 6707A(c) of the Code or Treasury Regulations Section 1.6011-4(b)(2) (or any analogous provision of state, local or non-U.S. Law).

(p) Neither the Company nor any Company Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing as a result of any: (i) adjustment under Section 481 of the Code (or any corresponding provision of state, local, or non-U.S. Tax Law), or use of an improper method of accounting, that occurred prior to the Closing Date; (ii) installment sale or other open transaction disposition made prior to the Closing Date; (iii) prepaid amount or deferred revenue received prior to the Closing Date outside of the ordinary course of business; or (iv) any intercompany transactions or excess loss accounts described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of state, local, or non-U.S. Tax Law) arising prior to the Closing Date.

(q) The Company and each Company Subsidiary is in compliance in all material respects with all applicable transfer pricing laws and regulations. The prices for any property or services (or for the use of any property) provided by or to the Company or any Company Subsidiary are arm’s length prices for purposes of all applicable transfer pricing laws, including the Treasury Regulations promulgated under Section 482 of the Code.

4.16 Intellectual Property.

(a) For each item of material Registered IP within the Company Owned IP (“Company Owned Registered IP”), and each item of material Registered IP within the Company Licensed IP (“Company Licensed Registered IP” and, collectively with Company Owned Registered IP, the “Company Registered IP”), other than Company Registered IP owned by Parent or its Affiliates, Section 4.16(a) of the Company Disclosure Letter identifies (i) the name of the applicant/registrant, (ii) the jurisdiction of application/registration, (iii) the application, patent or registration number and (iv) any other co-owners. To the Knowledge of the Company, each of the patents and patent applications included in the Company Owned Registered IP properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United States. To the Knowledge of the Company, as of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than patent prosecution activities being conducted before a Governmental Entity in the ordinary course of business) is pending or threatened in writing, in which the scope, validity, enforceability or ownership of any Company Registered IP listed on Section 4.16(a) of the Company Disclosure Letter is being or has been contested or challenged.

(b) The Company owns all right, title and interest in and to all material Company Owned IP (other than as disclosed on Section 4.16(b) of the Company Disclosure Letter), free and clear of all Liens other than Permitted Liens and any Lien caused or created by any action or failure to act by any Person other than the Company or any Company Subsidiary, and, to the Knowledge of the Company, has the right, pursuant to valid agreements to use all material Company Licensed IP used to conduct the business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement. To the

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Knowledge of the Company, the Company has executed valid and enforceable written agreements with each of its former directors, officers, employees, consultants and independent contractors and Company Associates who were or are, as applicable, engaged in creating or developing any material Company Owned IP, pursuant to which each such Person has: (i) agreed to hold all trade secrets and confidential information of the Company in confidence both during and after (subject to the terms of the applicable agreement) such Person’s employment or retention, as applicable; and (ii) presently assigned to the Company all of such Person’s rights, title and interest in and to all material Intellectual Property Rights, created or developed for the Company or any Company Subsidiary in the course of such Person’s employment or retention thereby. To the Knowledge of the Company, no party thereto is in default or breach of any such agreements.

(c) To the Knowledge of the Company, no funding, facilities or personnel of any Governmental Entity or any university, college, research institute or other educational institution is being used to create material Company Owned IP (other than as disclosed on Section 4.16(c) of the Company Disclosure Letter), except for any such funding or use of facilities or personnel that does not result in such Governmental Entity or institution obtaining ownership rights to such material Company Owned IP or the right to receive royalties for the practice of such material Company Owned IP.

(d) Section 4.16(d) of the Company Disclosure Letter sets forth each exclusive license agreement pursuant to which the Company (i) is granted a license under any Company Licensed IP owned by any third party that is used in the conduct of the business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement (each a “Company In-bound License of IP”), other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses or generally available patent license agreements entered into in the ordinary course of business, or (ii) grants to any third party a license under any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License of IP, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, service agreements.

(e) To the Knowledge of the Company: (i) the operation of the business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement does not infringe any valid and enforceable Registered IP owned by any other Person or misappropriate or otherwise violate any other Intellectual Property Right owned by any other Person; and (ii) no Person is infringing, misappropriating or otherwise violating any Company IP. As of the date of this Agreement, no Legal Proceeding is pending (or, to the Knowledge of the Company, is threatened in writing) (A) against the Company alleging that the operation of the business of the Company and the Company Subsidiaries as conducted as of the date of this Agreement infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (B) by the Company that another Person has infringed, misappropriated or otherwise violated any of the Company IP. Since January 1, 2021, the Company has not received any written notice or other written communication alleging that the operation of the business of the Company and the Company Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.

(f) The Company has taken reasonable security and other measures, including measures against unauthorized disclosure, to protect the secrecy, confidentiality, and value of its trade secrets and other confidential technical information. To the Knowledge of the Company, no trade secret, know-how, or proprietary information material to the business (with respect to know-how or proprietary information, that has not been publicly disclosed) of the Company and the Company Subsidiaries as conducted as of the date of this Agreement has been authorized to be disclosed or has been actually disclosed by the Company or any Company Subsidiary to any Person other than pursuant to a non-disclosure agreement or other agreement restricting the disclosure and use of such Intellectual Property Rights or proprietary information.

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(g) None of the Company Owned IP material to the business as conducted as of the date of this Agreement or, to the Knowledge of the Company, Company Licensed IP material to the business as conducted as of the date of this Agreement, is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute that adversely and materially restricts the use, transfer, registration or licensing by the Company of any such Company IP, other than patent prosecution activities being conducted before a Governmental Entity in the ordinary course of business.

4.17 Privacy; Data Processing; Security.

(a) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company and the Company Subsidiaries are, and since January 1, 2021 have been, in compliance with all Privacy and Data Processing Requirements. To the Knowledge of the Company, the execution and delivery of this Agreement by the Company does not, and the performance by the Company of its obligations hereunder and the consummation of the transactions of the Contemplated Transactions will not, conflict with or result in any violation of any Privacy and Data Processing Requirement, other than any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, there is no and has been no Legal Proceeding against or involving the Company or any Company Subsidiary relating to the Processing of Company Data, privacy, data protection, or security that has resulted in or would reasonably be expected to result in a liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, or that would reasonably be expected to prevent or materially delay the consummation of the Merger.

(b) The Company and its Subsidiaries have since January 1, 2021 implemented and maintained commercially reasonable and appropriate security plans, policies, and measures, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no, and has been no, breach, security incident, or accidental, unlawful, or unauthorized access to, or other Processing of, Company Data, that has resulted in or would reasonably be expected to result in a liability or obligation that is material to the Company and its Subsidiaries, taken as a whole.

4.18 Regulatory Matters.

(a) The Company and each of its Subsidiaries have all material permits, licenses, registrations, authorizations, certificates, orders, approvals, franchises, variances and other similar rights issued by or obtained from any Governmental Entities (collectively, “Permits”) required to conduct the research, development (clinical or otherwise), manufacture, or commercialization of the Company product candidate STS101 or otherwise the Company’s and each of the Subsidiary’s business as currently conducted, including all such Permits required by any Governmental Entity, except for such Permits the absence of which would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries (the “Company Permits”). The Company has timely submitted all renewal applications, reports, forms, registrations and documents required to be filed and paid all fees and assessments in connection with the Company Permits and has not received any written notice from a Governmental Entity alleging that it has failed to hold any Company Permit. The Company is in compliance with the rules and regulations of the Governmental Entity issuing such Company Permit.

(b) The Company Permits are in full force and effect, except for any failures to be in full force and effect that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries. The Company and each of its Subsidiaries is in compliance under such Company Permits, except for such failures to comply that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken as a whole.

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(c) Except for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken as a whole, since January 1, 2021, the Company and each of its Subsidiaries: (i) is and at all times has been in compliance, with the Health Care Laws; (ii) has not received any written notice or correspondence from any Governmental Entity alleging or asserting any noncompliance with any Company Permit or Health Care Law; and (iii) has not received written notice that any Governmental Entity has taken or is intending to take action to limit, suspend, modify or revoke any Company Permit and, to the Knowledge of the Company, there is no action or proceeding pending or threatened (including any prosecution, injunction, seizure, civil fine, suspension or recall), in each case alleging that such Governmental Entity is considering such action. Neither the Company nor any of its Subsidiaries has been subject to any adverse inspection, finding, penalty assessment or other Legal Proceeding or investigation or non-routine audit by any Governmental Entity, nor are there any non-routine internal investigations or inquiries currently being conducted by the compliance program of the Company that would reasonably be expected to be materially adverse to the Company.

(d) All applications, filings, reports, documents, claims, submissions and notices required to be filed, maintained, or furnished to any Governmental Entity, including the FDA, by the Company or its Subsidiaries have been so filed, maintained or furnished and were complete and correct in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing), including adverse event reports with regard to any Company products. Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened investigation regarding the Company or its products, by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46,191 (September 10, 1991) and any amendments thereto (“FDA Fraud Policy”), or otherwise. Since January 1, 2021, none of the Company, any of its Subsidiaries, or, to the Knowledge of the Company, any officer, employee, agent or distributor of the Company or any of its Subsidiaries has made an untrue statement of material fact to the FDA or any other Governmental Entity, failed to disclose a material fact required to be disclosed to the FDA or any other Governmental Entity, or committed an act, made a statement or failed to make a statement that, at the time such disclosure was made, would reasonably be expected to provide a basis for the FDA or any other Governmental Entity to invoke the FDA Fraud Policy or any similar policy. Since January 1, 2021, none of the Company, any of its Subsidiaries, or, to the Knowledge of the Company, any officer, employee, agent or distributor of the Company or any of its Subsidiaries, has been convicted of any crime for which such Person could be excluded from participating in the federal health care programs under Section 1128 of the Social Security Act of 1935, as amended, or any similar Law. No claims, actions, proceedings or investigation that would reasonably be expected to result in a material debarment or exclusion are pending or, to the Knowledge of the Company, threatened, against the Company or, to the Knowledge of the Company, any of its directors, officers, employees or agents.

(e) Neither the Company nor any of the Company Subsidiaries is or has at any time been a party to any corporate integrity agreement, judgment, order, deferred prosecution agreement, monitoring agreement, consent decree or settlement agreement that (i) requires the payment of money by the Company or any Company Subsidiary to a Governmental Entity, (ii) requires any recoupment of money of the Company or any Company Subsidiary by any Governmental Entity or (iii) prohibits or limits any activity currently conducted by such Person under any Health Care Law. Neither the Company nor any of the Company Subsidiaries is a defendant or named party in any current or pending qui tam or False Claims Act litigation.

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(f) Neither the Company, the Company Subsidiaries, any of their respective directors or officers, employees, nor, to the Knowledge of the Company, independent contractors or agents, (i) has been or is currently debarred, excluded, or suspended from contracting with the federal or state government or from participating in any payment program, including Federal Health Care Programs, (ii) is currently subject to or has been threatened with, an investigation or proceeding that could reasonably be expected to result in such debarment, exclusion or suspension, or (iii) has been assessed or threatened with assessment of civil monetary penalties pursuant to 42 C.F.R. Part 1003.

(g) The Company and the Company Subsidiaries have never, directly or indirectly, conducted or coordinated research that have been conducted, or supported with any federal funds or grants. Each of the Company and the Company Subsidiaries, as applicable, maintains in compliance all records required to be maintained under FDA and Research Laws, and/or are necessary to document research subjects’ consent/authorization to participate in research conducted or coordinated by the Company or any Company Subsidiary. All financial relationships between the Company, a Company Subsidiary, or officer, employee, or agent thereof, on the one hand, and any: (i) sponsor, funder, or supporter of research or clinical trials conducted by the Company, a Company Subsidiary, or any employee, agent or affiliate thereof; or (ii) pharmaceutical or device company, distributor, wholesaler, or any officer, employee, representative, agent, of affiliate thereof (including but not limited to pharmaceutical representatives and sales employees, contract research organizations, site management organizations or similar Persons) are in compliance with the FDA and Research Laws. No officer, employee or agent of a member of the Company (or any Company Subsidiary) (including any physician investigator engaged by such Person) has been, or has been threatened in writing to be: (a) debarred under FDA proceedings under 21 U.S.C. § 335a; (b) disqualified under FDA investigator disqualification proceedings; (c) subject to FDA’s Application Integrity Policy; or (d) subject to any enforcement proceeding arising from false statements to FDA pursuant to 18 U.S.C. § 1001.

(h) Except for matters that, individually or in the aggregate, would not reasonably be expected to result in a liability that is material to the Company and its Subsidiaries, taken as a whole, (i) the studies, tests and preclinical and clinical trials, if any, conducted by or on behalf of the Company or any of its Subsidiaries including with respect to Company product candidate STS101 are being conducted or have been conducted in accordance with experimental protocols, procedures and controls pursuant to accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company or its Subsidiaries and all applicable laws and regulations and (ii) since January 1, 2021, neither the Company nor any of its Subsidiaries has received any written notices or correspondence from a Governmental Entity or any institutional review board or comparable authority requiring the termination, clinical hold or partial clinical hold, suspension or material modification of any investigational new drug application, studies, tests or preclinical or clinical trials conducted by or on behalf of the Company or any of its Subsidiaries. There have been no recalls (either voluntary or involuntary), field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts or other notices of action relating to an alleged lack of safety, efficacy, or regulatory compliance of any Company product, or seizures ordered or adverse regulatory actions taken (or, to the Knowledge of the Company, threatened) by the FDA or any other Governmental Entity with respect to any of the Company products or any facilities where any such products are tested, produced, processed, packaged or stored.

4.19 Insurance; Properties.

(a) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each insurance policy of the Company or any Company Subsidiary is in full force and effect and was in full force and effect during the periods of time such insurance policy are purposed to be in effect, (ii) neither the Company nor any of the Company Subsidiaries is (with our without notice or lapse of time, or both) in breach or default (including any such

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breach or default with respect to the payment of premiums or the giving of notice) under any such policy, (iii) there is no claim by the Company or any of the Company Subsidiaries pending under any such policies that to the Knowledge of the Company, has been denied or disputed by the insurer other than denials and disputes in the ordinary course of business consistent with past practice.

(b) Neither the Company nor any of the Company Subsidiaries owns any real property or any interest in real property.

(c) Section 4.19(c)(i) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, of all written Company Leases (or a written description of any oral Company Leases) for all of the parcels of Leased Company Property. The Company and each of the Company Subsidiaries holds valid and existing leaseholder interest in the Leased Company Property and has complied in all material respects with the terms of all leases, subleases and licenses of Leased Company Property (the “Company Leases”), and all the Company Leases are valid and in full force and effect, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.19(c)(ii) of the Company Disclosure Letter, to the Knowledge of the Company, there are no leases, subleases, licenses, concessions or other agreements granting to any party or parties (other than the Company or a Company Subsidiary) the right of use or occupancy of any portion of any premises subject to a Company Lease. Neither the Company nor any of the Company Subsidiaries could be required to expend more than $20,000 in causing any Leased Company Property to comply with the surrender conditions set forth in the applicable Company Lease. The Company and each of the Company Subsidiaries has performed all of its obligations under any termination agreements pursuant to which it has terminated any leases of real property that are no longer in effect and has no continuing liability with respect thereto. Neither the Company nor any Company Subsidiary is party to any agreement or subject to any claim that may require the payment of any real estate brokerage commissions. The Company expects to be able to continue to have the right to occupy the Leased Company Property through the remainder of the term of the applicable Company Lease.

4.20 Information Supplied. None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Offer Documents, the Schedule 14D-9 or the Schedule 13E-3 will, at the date each is first mailed to each of the Company’s stockholders or at the Acceptance Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Schedule 14D-9 and the Company 13E-3 will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, except that no representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Purchaser for inclusion or incorporation by reference therein.

4.21 Brokers and Finders. No broker, investment banker, financial advisor or other Person, other than the Persons set forth on Section 4.21 to the Company Disclosure Letter (the “Company Financial Advisors”), the fees and expenses of which will be paid by the Company or the Company Subsidiaries, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on behalf of the Company. Prior to the execution of this Agreement, the Company has furnished to Parent true and complete copies of all agreements between the Company or its Subsidiaries and the Company Financial Advisor relating to the transactions contemplated hereby; provided, that the Company shall keep such agreements confidential.

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4.22 Opinion of Financial Advisor. As of the date of this Agreement, the Company Board (in its capacity as such) has received a written opinion (or an oral opinion to be confirmed in writing) of one of the Company Financial Advisors, to the effect that, as of the date of such opinion and based upon and subject to the various qualifications, assumptions, limitations and other matters set forth therein, the Offer Consideration and the Merger Consideration to be received by the holders of Shares (other than Parent, Purchaser or their respective Affiliates) was fair, from a financial point of view, to the holders of Shares (other than Parent, Purchaser or their respective Affiliates). The Company shall, promptly following the execution of this Agreement by all Parties, furnish a copy of such written opinion to Parent solely for informational purposes (it being agreed that none of the Parent or Purchaser, nor any of their respective affiliates or Representatives, shall have the right to rely on such opinion).

4.23 Section 203 of the DGCL. Assuming the accuracy of Parent’s and Purchaser’s representations and warranties in Section 5.10, the Company Board has taken all actions necessary so that the restrictions contained in Section 203 of the DGCL applicable to a “business combination” (as defined in Section 203 of the DGCL) and any other “takeover” law shall not apply to the execution, delivery or performance of this Agreement or the consummation of the Merger or the other Contemplated Transactions.

4.24 Certain Business Practices. The Company and the Company Subsidiaries (including any of their officers, directors, employees, or, to the Knowledge of the Company, agents or other Person acting on their behalf) have at all times been, and are currently, fully in compliance with all applicable Anti-Corruption and Anti-Bribery Laws. None of Company, any Company Subsidiaries, including any officer, director, employee, or to the Knowledge of the Company, agent or other Person acting on their behalf, has, directly or indirectly (A) made, offered, authorized, or promised to make or requested, agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment, or similar incentive which would cause them to be in violation of any Anti-Corruption and Anti-Bribery Laws or (B) offered, made, promised to make, or authorized the making of any gift or payment of money or anything of value either directly or indirectly to any Governmental Official, for purposes of (i) influencing any act or decision of any Governmental Official in their official capacity, (ii) inducing any Governmental Official to do or omit to do any act in violation of their lawful duty, (iii) securing an improper advantage or (iv) inducing any Governmental Official to use their influence improperly to affect or influence any act or decision of a Governmental Entity, in order to obtain, retain or direct or assist in obtaining, retaining or directing business to any Person. There are no pending or, to the Knowledge of the Company, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company or its Subsidiaries with respect to any Anti-Corruption and Anti-Bribery Laws, nor, to the Knowledge of the Company, is there any reasonable basis therefor. The Company and the Company Subsidiaries have established and maintain compliance programs and reasonable internal controls and procedures to ensure the Company and the Company Subsidiaries (including any of their officers, directors, employees, agents or other Person associated with or acting on their behalf) do not violate the Anti-Corruption and Anti-Bribery Laws.

4.25 Export Control and Trade Sanctions Laws. The Company and the Company Subsidiaries have at all times conducted export, re-export and in-country transactions in accordance with all applicable import/export and trade sanctions Laws, including those under the authority of U.S. Departments of Commerce (Bureau of Industry and Security) codified at 15 CFR, Parts 700-799; Homeland Security (Customs and Border Protection) codified at 19 CFR, Parts 1-199; State (Directorate of Defense Trade Controls) codified at 22 CFR, Parts 103, 120- 130; and Treasury (Office of Foreign Assets Control) codified at 31 CFR, Parts 500-599) and all comparable applicable export and import Laws outside the United States for each country where the Company or the Company Subsidiaries conduct business (collectively, “Trade Laws”). Without limiting the foregoing, (i) the Company and the Company Subsidiaries have obtained all export and import licenses, license exceptions and other consents, notices, waivers, approvals, orders, authorizations, registrations, declarations and filings with any Governmental Entity required for (A) the export, import, re-export and transfer of products, services, software and technologies and (B) releases of

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technologies and software to foreign nationals located in the United States and abroad (“Export Approvals”); (ii) the Company and the Company Subsidiaries are in compliance with the terms of all applicable Export Approvals; (iii) the Company and the Company Subsidiaries have never, directly or indirectly, sold, exported, reexported, transferred or provided any products, software, services or technology to any destination, entity, or person in Cuba, Iran, North Korea, Syria, or the Donetsk People’s Republic, the Luhansk People’s Republic, or Crimea Regions of Ukraine or to any Restricted Person; (iv) there are no pending or threatened Legal Proceedings against the Company or the Company Subsidiaries with respect to such Export Approvals or Trade Laws; (v) no Export Approvals for the transfer of export licenses to Purchaser are required, or if required, such Export Approvals can be obtained expeditiously without cost; (vi) none of the Company or any Company Subsidiary is a Restricted Person and no Person affiliated with the Company or any Company Subsidiary, including its employees, is a Restricted Person; and (vii) none of the Company, any Company Subsidiary, any Person affiliated with the Company, or any Person affiliated with any Company Subsidiary has any presence, directly or indirectly, in a country subject to comprehensive sanctions under the Trade Laws.

4.26 CFIUS Representations. The Company does not engage in (a) the design, fabrication, development, testing, production or manufacture of one (1) or more “critical technologies” within the meaning of the Defense Production Act of 1950, as amended, including all implementing regulations thereof (the “DPA”); (b) the ownership, operation, maintenance, supply, manufacture, or servicing of “covered investment critical infrastructure” within the meaning of the DPA (where such activities are covered by column 2 of Appendix A to 31 C.F.R. Part 800); or (c) the maintenance or collection, directly or indirectly, of “sensitive personal data” of U.S. citizens within the meaning of the DPA.

4.27 Bank Accounts. Section 4.27 of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereof, of all (a) bank accounts or safe deposit boxes under the control or for the benefit of the Company and the Company Subsidiaries, (b) the names of all Persons authorized to draw on or have access to such accounts and safe deposit boxes, and (c) the balance of such accounts and safe deposit boxes.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER

Parent and Purchaser represent and warrant to the Company as set forth in the statements contained in this Article V except as set forth in the disclosure letter delivered by Parent to the Company at or before the execution and delivery by Parent of this Agreement (the “Parent Disclosure Letter”). The Parent Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article V, and the disclosure in any section of the Parent Disclosure Letter shall be deemed to qualify other sections in this Article V to the extent that it is reasonably apparent on the face of such disclosure that such disclosure also qualifies or applies to such other sections.

5.1 Organization and Good Standing.

(a) Parent (i) is duly organized or formed and validly existing pursuant to the Laws of its jurisdiction of organization or formation; and (ii) has the requisite power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties and assets.

(b) Purchaser (i) is a corporation duly organized, validly existing and in good standing pursuant to the DGCL; and (ii) has the requisite corporate power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties and assets. Purchaser has been formed solely for the purpose of engaging in the Merger and, prior to the Effective Time, Purchaser will not have engaged in any other business activities and will have incurred no material liabilities or obligations other than as contemplated by this Agreement. Parent is the sole record and beneficial stockholder of Purchaser.

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5.2 Corporate Authority and Approval. Each of Parent and Purchaser has the requisite power and authority to (a) execute and deliver this Agreement; (b) perform its covenants and obligations under this Agreement; and (c) subject to adoption of this Agreement by Parent in its capacity as sole stockholder of Purchaser, consummate the Contemplated Transactions. The execution and delivery of this Agreement by each of Parent and Purchaser, the performance by each of Parent and Purchaser of their respective covenants and obligations under this Agreement, and, subject to adoption of this Agreement by Parent in its capacity as sole stockholder of Purchaser, the consummation of the Contemplated Transactions, have each been duly authorized by all necessary corporate or other action on the part of each of Parent and Purchaser and no additional corporate proceedings on the part of Parent or Purchaser are necessary to authorize this Agreement or to consummate the Contemplated Transactions (including the Offer and the Merger). This Agreement has been duly executed and delivered by each of Parent and Purchaser and, assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of each of Parent and Purchaser, enforceable against each of Parent and Purchaser in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.

5.3 No Conflicts; Consents.

(a) Except as set forth on Section 5.3(a) of the Parent Disclosure Letter and assuming compliance with the applicable provisions of the DGCL, the execution and delivery of this Agreement by Parent and Purchaser does not, and the performance by Parent and Purchaser of their respective obligations hereunder and the consummation of the Contemplated Transactions will not, (i) conflict with, or result in any violation of any provision of the certificate of incorporation, bylaws and other similar organizational documents of Parent and Purchaser, (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation, or give rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital stock or any loss of a material benefit under, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Parent or Purchaser, (iii) conflict with, or result in any violation of any provision of, subject to the filings and other matters referred to in Section 5.3(b), any Judgment or Law, in each case, applicable to Parent or Purchaser or their respective properties or assets (assuming that Parent, in its capacity as sole stockholder of Purchaser, adopts this Agreement), other than, in the case of clauses (ii) or (iii) above, any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.

(b) Assuming the accuracy of the Company’s representations and warranties in Section 4.5(b), no Consent of or from, or registration, declaration, notice or filing made to or with any Governmental Entity is required to be obtained or made by or with respect to Parent, Purchaser or any of their Affiliates in connection with the execution and delivery of this Agreement or each of their performance of their respective obligations hereunder or the consummation of the Contemplated Transactions, other than (i) (A) the filing with the SEC of the Offer Documents, the Schedule 14D-9 and the Schedule 13E-3 in definitive form, (B) the filing with the SEC of such reports and other filings under, and such other compliance with, the Exchange Act and the Securities Act, and the rules and regulations thereunder, as may be required in connection with this Agreement, and the Contemplated Transactions, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and the filing of appropriate documents with the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business, (iii) such filings with and approvals of Nasdaq as are required to permit the consummation of the Offer and the Merger and (iv) such other matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.

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5.4 Litigation and Liabilities. As of the date of this Agreement, there is no suit, action or other proceeding pending or, to the Knowledge of Parent, threatened against Parent or Purchaser that would have a Parent Material Adverse Effect. As of the date of this Agreement, there is no Judgment outstanding against Parent or Purchaser that would have a Parent Material Adverse Effect.

5.5 Information Supplied. None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Offer Documents, the Schedule 14D-9 or the Schedule 13E-3 will, at the date it is first mailed to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Offer Documents and the Parent 13E-3 will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, except that no representation is made by Parent or Purchaser with respect to statements made or incorporated by reference therein based on information supplied by the Company for inclusion or incorporation by reference therein.

5.6 Brokers and Finders. No broker, investment banker, financial advisor or other Person, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on behalf of Parent.

5.7 Ownership and Operations of Purchaser. Parent, directly or indirectly, owns beneficially all of the outstanding shares of common stock of Purchaser. Purchaser was formed solely for the purpose of engaging in the Offer and the Merger, has engaged in no other business activities, and has incurred no liabilities or obligations other than as contemplated hereby or as otherwise required or incidental to negotiate, execute, deliver and effect the Contemplated Transactions. The authorized shares of common stock of Purchaser consist of 1000 shares, all of which are validly issued and outstanding. All of the issued and outstanding shares of Purchaser are directly owned by Parent, free and clear of any Liens other than Liens imposed under any federal or state securities Laws.

5.8 Sufficient Funds. Parent has available to it, and will have on the Closing Date, the funds (including the Company’s cash on hand), necessary to (i) consummate the Offer, the Merger and the other Contemplated Transactions and to make all of the payments contemplated by Article I in connection with the Offer and Article III in connection with the Merger, (ii) pay any and all fees and expenses required to be paid at Closing by Parent and Purchaser in connection with the Merger, and (iii) satisfy all of the other payment obligations of Parent and Purchaser contemplated hereunder. Parent acknowledges and agrees that notwithstanding anything to the contrary contained herein, its obligation to consummate the Offer or the Merger is not subject to Parent, Purchaser or any of their Affiliates obtaining or retaining any financing.

5.9 No Vote of Parent Stockholders. No vote of the stockholders of Parent is required by Law or the certificate of incorporation or bylaws of Parent in order for Parent to consummate the Offer or the Merger.

5.10 Ownership of Shares.

(a) As of the date of this Agreement, Parent, Purchaser and their respective Affiliates collectively beneficially own, and will continue to beneficially own at all times prior to the consummation of the Contemplated Transactions, 2,794,113 Shares (the “Parent Owned Shares”) All of the Parent Owned Shares are directly owned by Parent, Purchaser or their respective Affiliates, free and clear of all material Liens other than Permitted Liens or Liens arising under applicable securities Laws.

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(b) As of the date of this Agreement, Parent, Purchaser and their respective Affiliates do not, and since September 11, 2019, have not, “owned” (as such term is defined in Section 203(c) of the DGCL), directly or indirectly, any Shares or other securities convertible into, exchangeable into or exercisable for Shares, other than the Parent Owned Shares or pursuant to any employee benefit plan of Parent.

ARTICLE VI

COVENANTS

6.1 Interim Operations.

(a) Conduct of Business by the Company. Except for (i) matters set forth in Section 6.1(a) of the Company Disclosure Letter, (ii) as otherwise expressly permitted or contemplated by this Agreement (including to effect any of the Contemplated Transactions), (iii) as required by applicable Law, (iv) in connection with the COVID-19 pandemic, to the extent reasonably necessary, (A) to protect the health and safety of the Company’s or any of its Subsidiaries’ employees, (B) to respond to third party supply or service disruptions caused by the COVID-19 pandemic or (C) as required by any applicable Law, directive or guideline from any Governmental Entity arising out of, or otherwise related to, the COVID-19 pandemic (including any response to COVID-19), (v) as may be consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms (such time, the “Pre-Closing Period”), the Company shall, and shall cause each Company Subsidiary to, (i) use commercially reasonable efforts to conduct its business in the ordinary course in all material respects and (ii) use commercially reasonable efforts to preserve intact its business organization and material business relationships and keep available the services of its current officers and employees, including in each case necessary for or related to the research, development (clinical or otherwise), manufacture or commercialization of Company product candidate STS101. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Company Disclosure Letter, or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following (provided that no such consent of Parent may be required to the extent the Company reasonably believes, based on its outside counsel’s advice, that obtaining such consent may violate any Laws):

(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or any combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to its parent, (B) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than (1) the withholding of Shares to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to the Company Stock Plans, (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards, and (3) the acquisition, repurchase or redemption by the Company of Shares outstanding as of the date hereof pursuant to the Company’s right (under written commitments in effect as of the date hereof) to acquire Shares held by any officer or other employee, or individual who is an independent contractor, consultant or director, of or to any of the Company or any Company Subsidiary upon termination of such Person’s employment or engagement by the Company or any Company Subsidiary;

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(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien, other than Permitted Liens, (except for transactions among the Company and wholly owned Company Subsidiaries) (A) any shares of capital stock of the Company or any Company Subsidiary, (B) any other equity interests or voting securities of the Company or any Company Subsidiary, (C) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, or (D) any warrants, calls, options or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, except, in each case of (A)-(C), for issuing Shares upon the exercise of Company Options or other equity awards outstanding under the Company Stock Plans in accordance with their respective terms as of the date hereof;

(iii) (A) amend the Company Charter or the Company Bylaws (including by merger, consolidation or otherwise) or (B) amend in any material respect the charter or organizational documents of any Company Subsidiary (including by merger, consolidation or otherwise) except, in the case of each of the foregoing clauses (A) and (B) as may be required by applicable Law;

(iv) except as required by applicable Law, existing written commitment or as required by the terms of any Company Plan set forth in Section 4.10 of the Company Disclosure Letter as in effect on the date hereof and other than due to de minimis administrative amendments that do not have the effect of materially enhancing any benefits thereunder or otherwise result in a material increase of costs to the Company: (A) increase the salaries, bonus opportunities, incentive compensation or other compensation or benefits payable to any employee, consultant, or independent contractor of the Company or a Company Subsidiary; (B) grant, announce or pay any new, retention, change in control or other similar bonus to any employee, consultant, or independent contractor of the Company or a Company Subsidiary, (C) grant any new Company Options or other equity-based awards or amend or modify the terms of any outstanding Company Options or other equity-based awards, (D) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation, (E) pay or agree to pay to any person any pension, retirement allowance or other post-termination benefit not required by the terms of any Company Plan existing as of the date hereof, (F) enter into any new, or amend any existing, employment or severance or termination agreement with any Company employee, other than with non-officer employees in the ordinary course, (G) establish, amend, terminate, or increase the benefits or costs provided under, any Company Plan, other than de minimis administrative amendments that do not have the effect of enhancing any benefits thereunder or otherwise result in increased costs to the Company, (H) accelerate the vesting or payment of, or take any action to fund, any benefit or payment provided to employees or service providers of the Company or the Company Subsidiaries, or (I) hire, promote or terminate (without cause) any employee, consultant, or independent contractor of the Company or the Company Subsidiaries;

(v) make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or SEC rules and regulations (after the date of this Agreement);

(vi) directly or indirectly acquire or agree to acquire in any transaction any equity interest in or business of any Person (other than any transaction solely between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries);

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(vii) sell, lease (as lessor), license, covenant not to assert, mortgage, abandon, allow to lapse, and leaseback or otherwise encumber or subject to any Lien (other than any Permitted Lien), or otherwise dispose of any properties, rights or assets (including any Company IP) that are material to the Company and its Subsidiaries taken as a whole (including any that are necessary for or related to the research, development (clinical or otherwise), manufacture or commercialization of Company product candidate STS101), except (A) pursuant to Contracts or commitments in effect on the date of this Agreement (or entered into after the date of this Agreement without violating the terms of this Agreement), (B) any of the foregoing with respect to obsolete or worthless equipment in the ordinary course of business consistent with past practice, (C) in relation to mortgages, liens and pledges to secure Indebtedness for borrowed money permitted to be incurred under Section 6.1(a)(viii) and guarantees thereof or (D) for any transactions among the Company and the wholly owned Company Subsidiaries in the ordinary course of business consistent with past practice;

(viii) incur any Indebtedness, except for intercompany Indebtedness among the Company and the wholly owned Company Subsidiaries in the ordinary course of business;

(ix) incur, authorize or commit to incur any material capital expenditures other than (A) consistent in all respects with the capital expenditure budget set forth in the operating plan delivered to Parent on April 14, 2023 in the Microsoft excel file entitled “STSA Monthly Cash Projections FINAL (04.14.2023)” (the “Operating Plan”); (B) pursuant to obligations imposed by Company Material Contracts or Company Leases; (C) pursuant to agreements in effect prior to the date of this Agreement or (D) Transaction Expenses;

(x) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that do not create material obligations of the Company or any of the Company Subsidiaries other than the payment of monetary damages (A) equal to or less than the amounts reserved with respect thereto on the Company SEC Documents or (B) other than as contemplated by Section 6.13 not in excess of $25,000 in the aggregate;

(xi) enter into, modify, amend, extend, renew, replace or terminate any collective bargaining or other labor union Contract applicable to the employees of the Company or any of the Company Subsidiaries;

(xii) abandon, allow to lapse, subject to a Lien (other than Permitted Liens), assign, transfer, convey title (in whole or in part), license, covenant not to assert, grant any right or other licenses to, or otherwise dispose of, any Company IP, or enter into licenses or agreements that impose material restrictions upon the Company or any Company Subsidiaries with respect to any Company IP owned by any third party, in each case including any Company IP that are necessary for the research, development, manufacture or commercialization of Company product candidate STS101;

(xiii) other than in the ordinary course of business, materially amend or modify any Company Material Contract or enter into, materially amend or modify any Contract that would be a Company Material Contract if it had been entered into prior to the date of this Agreement;

(xiv) except as required by applicable Law, make, change or revoke any material Tax election, change any method of Tax accounting or annual Tax accounting period, amend any income or other material Tax Return, settle any claim, action or proceeding relating to material Taxes, waive any statute of limitations for any material Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), obtain or request any Tax ruling or closing agreement, or surrender any right to obtain a material Tax refund;

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(xv) enter into any new line of business outside of its and the Company Subsidiaries’ existing business;

(xvi) commence any clinical trial of any product candidate of the Company;

(xvii) dissolve or liquidate the Company or any Company Subsidiary;

(xviii) conduct any activity, incur any material obligations or costs or enter into any agreement with respect thereto, except as consistent in all material respects with the Operating Plan; or

(xix) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.

(b) Notice of Material Events. During the Pre-Closing Period, each Party shall promptly notify the other Party in writing of any event, condition, fact or circumstance that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VII or Schedule I impossible or unlikely or (in the case of the Company) that has had or could reasonably be expected to have or result in a Company Material Adverse Effect. Without limiting the generality of the foregoing, a Party shall promptly advise the other Party in writing of (i) any claim asserted or Legal Proceeding commenced, or, to the Party’s Knowledge, either: (A) with respect to a Governmental Entity, overtly threatened; or (B) with respect to any other Person, threatened in writing, in each case against, relating to, involving or otherwise affecting any of the Contemplated Transactions; (ii) any knowledge of any notice from any Person alleging that the consent of such Person is or may be required in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) any other material Legal Proceeding or material claim threatened, commenced or asserted against or with respect to any Party or its respective Subsidiaries. No notification given pursuant to this Section 6.1(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of such Party contained in this Agreement.

(c) Net Cash Reports. During the Pre-Closing Period, the Company shall provide an unaudited monthly report setting forth the Company Net Cash expected at Closing as of the end of each calendar month, which shall be delivered within twenty (20) days after the end of such month, or such longer periods as the parties may agree to in writing.

(d) All notices, requests, instructions, communications or other documents to be given in connection with any consultation or approval required pursuant to this Section 6.1 shall be in writing and shall be deemed given as provided for in Section 9.6, and, in each case, shall be addressed to such individuals as the Parties shall designate in writing from time to time.

6.2 Company Acquisition Proposals; Company Change in Recommendation.

(a) No Solicitation or Negotiation. During the Pre-Closing Period, except as expressly permitted by this Section 6.2, the Company shall not, and the Company shall cause its and its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective investment bankers, attorneys, accountants and other advisors, agents or representatives (collectively, along with such directors, officers and employees, “Representatives”) to not, directly or indirectly:

(i) solicit, initiate, induce, encourage or facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal;

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(ii) participate in any discussions or negotiations or cooperate in any way with any Person regarding any proposal or offer the consummation of which would constitute a Company Acquisition Proposal;

(iii) provide any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any proposal the consummation of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company Acquisition Proposal;

(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Company Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal;

(v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or

(vi) resolve, publicly propose or agree to do any of the foregoing.

The Company shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that could reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. As soon as reasonably practicable after the date of this Agreement, the Company shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making a Company Acquisition Proposal within the last 90 days, to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Company Acquisition Proposal, effective on the date hereof and requesting the prompt return or destruction of all confidential information previously furnished to such Person.

(b) Fiduciary Exception to No Solicitation Provision. Notwithstanding anything to the contrary in Section 6.2(a), prior to, but not after, the Acceptance Time, the Company may, in response to an unsolicited, bona fide written Company Acquisition Proposal (which Company Acquisition Proposal was made after the date of this Agreement and has not been withdrawn) which did not result from a breach, in any material respect, of this Section 6.2 and so long as it has provided prior written notice to Parent of the identity of such Person and its intention to engage or participate in any discussions or negotiations with any such Person, (i) provide access to non-public information regarding the Company or any of its Subsidiaries to the Person who made such Company Acquisition Proposal; provided that such information has previously been made available to Parent or is provided to Parent substantially concurrently with the making of such information available to such Person and that, prior to furnishing any such non-public

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information, the Company receives from the Person making such Company Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such Person as the Licensing Agreement’s confidentiality and non-use terms are on Parent (it being understood that such confidentiality agreement need not prohibit the making or amending of a Company Acquisition Proposal), and (ii) engage or participate in any discussions or negotiations with any such Person regarding such Company Acquisition Proposal if, and only if, prior to taking any action described in clause (i) or (ii) above, the Company Board determines in good faith after consultation with outside legal counsel and an independent financial advisor of nationally recognized reputation that (A) such Company Acquisition Proposal either constitutes a Company Superior Proposal or would reasonably be expected to result in a Company Superior Proposal and (B) the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.

(c) Notice. The Company shall promptly (and, in any event, within 24 hours) notify Parent (orally and in writing) if (i) any written or other inquiries, proposals or offers with respect to a Company Acquisition Proposal or any inquiries, proposals, offers or requests for information relating to or that could reasonably be expected to lead to a Company Acquisition Proposal are received by the Company, (ii) any non-public information is requested in connection with any Company Acquisition Proposal from the Company or (iii) any discussions or negotiation with respect to or that could reasonably be expected to lead to a Company Acquisition Proposal are sought to be initiated or continued with the Company, indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements and other material written communications or, if oral, a summary of the material terms and conditions of such proposal or offer), and thereafter shall keep Parent informed, on a current basis (and in any event within 48 hours), of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including by promptly providing copies of any additional requests, proposals or offers, including any drafts of proposed agreements and any amendments thereto and other information set forth above. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 6.2 or otherwise prohibits the Company from complying with its obligations under this Section 6.2. The Company further agrees that it will not provide information to any Person pursuant to any confidentiality agreement entered into prior to the date of this Agreement unless such Person agrees prior to receipt of such information to waive any provision that would prohibit the Company from providing any information to Parent in accordance with this Section 6.2 or otherwise prohibit the Company from complying with its obligations under this Section 6.2.

(d) Definitions. For purposes of this Agreement:

“Company Acquisition Proposal” means any proposal (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) any merger, reverse merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction in which a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires, or if consummated in accordance with its terms would acquire, beneficial or record ownership of securities representing more than 20% of the outstanding shares of any class of voting securities of the Company; (ii) issuance or acquisition of securities representing more than 20% of the outstanding shares of any class of voting securities of the Company; (iii) any direct or indirect sale, lease, exchange, transfer, acquisition or disposition of any assets of the Company and of the Company Subsidiaries that constitute or account for (x) more than 20% of the consolidated net revenues of the Company, consolidated net income of the Company or consolidated book value of the Company; or (y) more than 20% of the fair market value of the consolidated assets of the Company; or (iv) any liquidation or dissolution of the Company.

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“Company Intervening Event” means any event or development that has a material effect on the Company and its Subsidiaries taken as a whole, occurring or arising after the date of this Agreement that (i) was not known to, or reasonably foreseeable by, the Company Board prior to the execution of this Agreement, which event, occurrence, fact, condition, change, development or effect becomes known to, or reasonably foreseeable by, the Company Board prior to the Acceptance Time and (ii) does not relate to (A) a Company Acquisition Proposal or (B) (1) any changes in the market price or trading volume of the Company, (2) the Company meeting, failing to meet or exceeding published or unpublished revenue or earnings projections, in each case in and of itself, (3) any event or development generally affecting the industries in which Company operates or in the economy generally or other general business, financial or market conditions, (4) any change in any applicable Law and (5) any event or development to the extent directly resulting from the announcement or pendency of, or any actions required to be taken by the Company or Parent (or refrained to be taken by the Company or Parent) pursuant to the Agreement or the consummation of the Contemplated Transactions.

“Company Superior Proposal” means any bona fide, binding, written Company Acquisition Proposal on terms which the Company Board determines in its good faith judgment, after consultation with outside counsel and an independent financial advisor of nationally recognized reputation, would reasonably be expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person or group of Persons making the proposal, and, if consummated, would result in a transaction more favorable to the Company’s stockholders in their capacities as such from a financial point of view than the Offer and the Merger (after taking into account any revisions to the terms of the Contemplated Transactions pursuant to Section 6.2(f) of this Agreement and the time likely to be required to consummate such Company Acquisition Proposal); provided that for purposes of the definition of “Company Superior Proposal”, the references to “20%” in the definition of Company Acquisition Proposal shall be deemed to be references to “50%.”

(e) No Company Change in Recommendation or Company Alternative Acquisition Agreement. Except as provided in Section 6.2(f) and Section 6.2(g), the Company Board and each committee of the Company Board shall not (i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Purchaser, the Company Board Recommendation or approve, recommend or otherwise declare advisable (or publicly propose or resolve to approve, recommend or otherwise declare advisable) any Company Acquisition Proposal or make or authorize the making of any public statement (oral or written) that has the substantive effect of such a withdrawal, qualification or modification, or remove the Company Board Recommendation from or fail to include the Company Board Recommendation in the Schedule 14D-9 (each, a “Company Change in Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement (other than a confidentiality agreement referred to in Section 6.2(b) entered into in compliance with Section 6.2(a)) relating to or that could reasonably be expected to lead to any Company Acquisition Proposal or requiring the Company (or that would require or could reasonably be expected to require the Company) to abandon, terminate, or fail to consummate the Merger or any other transaction contemplated by this Agreement or that would otherwise materially impede, interfere with or be inconsistent with, the Contemplated Transactions (a “Company Alternative Acquisition Agreement”).

(f) Fiduciary Exception to No Company Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in Section 6.2(e), following receipt of an unsolicited, bona fide written Company Acquisition Proposal by the Company after the date of this Agreement that did not result from a material breach of this Section 6.2 and with respect to which the Company has received a written, definitive form of Company Alternative Acquisition Agreement that has not been withdrawn, and the Company Board determining in good faith, after consultation with independent financial advisors of

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nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal, the Company Board may, at any time prior to the Acceptance Time, make a Company Change in Recommendation with respect to such Company Superior Proposal, if all of the following conditions are met:

(i) the Company shall have complied in all material respects with the provisions of this Section 6.2 and shall have (A) provided to Parent four Business Days’ prior written notice, which shall state expressly (1) that it has received a written Company Acquisition Proposal that constitutes a Company Superior Proposal, (2) the material terms and conditions of the Company Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Company Acquisition Proposal), and shall have contemporaneously provided an unredacted copy of the Company Alternative Acquisition Agreement and all other written documents and a summary of the material terms of oral communications related to the Company Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Company Superior Proposal shall require a new notice and an additional two Business Day period) and (3) that, subject to clause (ii) below, the Company Board has determined to effect a Company Change in Recommendation, and (B) prior to making such a Company Change in Recommendation, (x) engaged in good faith negotiations with Parent (to the extent Parent wishes to engage) during such notice period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by Parent such that the Company Alternative Acquisition Agreement ceases to constitute a Company Superior Proposal, and (y) in determining whether to make a Company Change in Recommendation, the Company Board shall take into account any changes to the terms of this Agreement proposed in writing by Parent; and

(ii) the Company Board shall have determined, in good faith, after consultation with independent financial advisors of nationally recognized reputation and outside legal counsel, that, in light of such Company Superior Proposal and taking into account any revised terms proposed in writing by Parent, such Company Superior Proposal continues to constitute a Company Superior Proposal and, after consultation with outside legal counsel, that the failure to make such Company Change in Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law.

(g) Company Change in Recommendation Due to Company Intervening Event. Notwithstanding anything to the contrary set forth in Section 6.2(e), upon the occurrence of any Company Intervening Event, the Company Board may, at any time prior to the Acceptance Time, make a Company Change in Recommendation, if all of the following conditions are met:

(i) the Company shall have (A) provided to Parent four Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Company Intervening Event and the rationale for the Company Change in Recommendation (it being understood and agreed that any amendment to the facts and circumstances relating to the Company Intervening Event shall require a new notice and an additional two Business Day period), and (2) state expressly that, subject to clause (ii) below, the Company Board has determined to effect a Company Change in Recommendation and (B) prior to making such a Company Change in Recommendation, engaged in good faith negotiations with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by Parent in such a manner that the failure of the Company Board to make a Company Change in Recommendation in response to the Company Intervening Event in accordance with clause (ii) below would no longer be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law; and

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(ii) the Company Board shall have determined in good faith, after consultation with independent financial advisors of nationally recognized reputation and outside legal counsel, that in light of such Company Intervening Event and taking into account any revised terms proposed in writing by Parent, the failure to make a Company Change in Recommendation, would be inconsistent with the directors’ fiduciary duties under applicable Law.

(h) Certain Permitted Disclosure. Nothing contained in this Section 6.2 shall be deemed to prohibit the Company from complying with its disclosure obligations under applicable U.S. federal or state Law with regard to a Company Acquisition Proposal; provided that any “stop look and listen” communication to its stockholders of the nature contemplated by Rule 14d-9 under the Exchange Act shall include an affirmative statement to the effect that the recommendation of the Company Board is affirmed or remains unchanged; provided, further, that this Section 6.2(h) shall not be deemed to permit the Company or the Company Board to effect a Company Change in Recommendation except in accordance with Sections 6.2(f) or 6.2(g). The Company shall not submit to the vote of its stockholders any Company Acquisition Proposal or Company Superior Proposal prior to the termination of this Agreement.

6.3 Regulatory Approvals and Related Matters.

(a) Each Party shall cooperate with each other Party and shall use reasonable best efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party in connection with any Governmental Entity, with respect to the Merger and the transactions contemplated hereby, and to submit promptly any information reasonably requested by any Governmental Entity. Each of the Company and Parent shall give the other Party prompt notice of the commencement or known threat of commencement of any Legal Proceeding by or before any Governmental Entity with respect to the Contemplated Transactions, keep the other party reasonably informed as to the status of any such Legal Proceeding or threat, and in connection with any such Legal Proceeding, each of the Company or Parent will permit authorized representatives of the other party to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such Legal Proceeding.

(b) Subject to the immediately following sentence, Parent and the Company shall use reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the Contemplated Transactions. Without limiting the generality of the foregoing, but subject to Section 6.3(c), each Party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Contemplated Transactions; (ii) shall use reasonable best efforts to obtain each of the Consents set forth on Section 6.3(b) of the Company Disclosure Letter (the “Required Consents”); and (iii) shall use reasonable best efforts to lift any restraint, injunction or other legal bar to the Offer or the Merger.

(c) Notwithstanding anything to the contrary contained in this Section 6.3, neither Parent, Purchaser or the Company shall have any obligation under this Agreement to divest or agree to divest (or cause any of its Subsidiaries to divest or agree to divest) any of its respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its Subsidiaries to take or agree to take) any other material action or agree (or cause any of its Subsidiaries to agree) to any material limitation or material restriction on any of its respective material businesses, material product lines or material assets and neither Parent, Purchaser or the Company shall do any of the foregoing without the prior consent of the other parties.

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(d) The Company and Parent each shall promptly furnish the other with copies of notice or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries from any third party and/or any Governmental Entity with respect to the Contemplated Transactions, other than immaterial communications.

6.4 Access; Consultation.

(a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent and its Representatives reasonable access (at the requesting Party’s cost) under the supervision of appropriate personnel of the Company and its Subsidiaries, during normal business hours during the period prior to the Effective Time, to the Company’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to the other all information concerning its or any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by the other; provided that no investigation pursuant to this Section 6.4 shall affect or be deemed to modify any representation or warranty made by the Company; and provided, further that the foregoing shall not require the Company to permit any invasive sampling or testing or to disclose any information pursuant to this Section 6.4 to the extent that (i) in the reasonable good faith judgment of such Party, any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of the Company, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further that with respect to clauses (i) through (iii) of this Section 6.4(a), the Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 6.4 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. All requests for information made pursuant to this Section 6.4 shall be directed in writing to an executive officer of the Company, or such Person as may be designated by any such executive officer.

6.5 Stock Exchange De-listing and De-registration. The Company and Parent shall take all actions necessary to permit the Shares and any other security issued by the Company or one of its Subsidiaries and listed on the Nasdaq Global Market to be de-listed from the Nasdaq and de-registered under the Exchange Act as soon as possible following the Effective Time.

6.6 Publicity. The initial press release with respect to the Offer, the Merger and the other Contemplated Transactions shall be a joint press release and thereafter the Company and Parent shall consult with each other prior to issuing or making, and provide each other the reasonable opportunity to review and comment on, any press releases or other public announcements with respect to the Offer, the Merger and the other Contemplated Transactions and any filings with any Governmental Entity (including any national securities exchange) with respect thereto, except (a) as may be required by applicable Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange, (b) any consultation that would not be reasonably practicable as a result of requirements of applicable Law, (c) any press release or public statement that in the good faith judgment of the applicable Party is consistent with prior press releases issued or public statements made in compliance with this Section 6.6, or (d) any internal announcements to employees regarding the Merger so long as such statements are consistent with previous press releases, public disclosures or public statements made jointly by the Parties (or individually, if approved by the other Party) or (e) with respect to any Company Change in Recommendation made in accordance with this Agreement or the other Party’s response thereto.

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6.7 Expenses. Except as otherwise provided in Section 8.5, whether or not the Offer or the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the Offer, the Merger and the other Contemplated Transactions shall be paid by the Party incurring such expense.

6.8 Indemnification; Directors’ and Officers’ Insurance.

(a) All rights to indemnification by the Company existing in favor of those Persons who are directors and officers of the Company as of or prior to the date of this Agreement (the “Indemnified Persons”) for their acts and omissions as directors and officers of the Company occurring prior to the Acceptance Time, as provided in the Company Charter and Company Bylaws and as provided in any indemnification agreements between the Company and said Indemnified Persons (as in effect as of the date of this Agreement), shall survive the Merger and Parent shall cause such rights to be observed and complied with by the Surviving Company to the fullest extent permitted by Delaware Law for a period of six years from the date on which the Merger becomes effective.

(b) Without limiting the generality of the provisions in Section 6.8(a), from and after the Acceptance Time, the Surviving Company shall (and Parent shall cause the Surviving Company to), indemnify and hold harmless each Indemnified Person against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Legal Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Acceptance Time, whether asserted or claimed prior to, at or after the Acceptance Time, to the fullest extent permitted under or required by applicable Law or the indemnification agreements in effect on the date of this Agreement. Parent also agrees to promptly advance expenses as incurred by each Indemnified Person to the fullest extent permitted under or required by applicable Law or the indemnification agreements in effect on the date of this Agreement.

(c) Prior to the Acceptance Time, the Company shall purchase, at its expense (and as reflected in the Company Net Cash), a six year “tail policy” for the existing Side A policy of directors’ and officers’ liability insurance maintained by the Company as of the date of this Agreement in the form delivered or made available by the Company to Parent prior to the date of this Agreement at a premium not to exceed 200% of the annual premiums currently paid by the Company for such insurance.

(d) In the event Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall ensure that the successors and assigns of Parent or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.8.

6.9 Takeover Statute. The Company and the Company Board and Parent and the Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Contemplated Transactions and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or the Contemplated Transactions, take all action reasonably appropriate to ensure that the Contemplated Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.

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6.10 Control of the Company’s or Parent’s Operations. Nothing contained in this Agreement shall give Parent or the Company, directly or indirectly, rights to control or direct the operations of the other prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations. The Company and the Company Board and Parent and the Parent Board shall use their respective reasonable best efforts to (x) take all actions reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Contemplated Transactions and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or the Contemplated Transactions, take all action reasonably appropriate to ensure that the Contemplated Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.

6.11 Section 16(b). The board of directors of the Company (or, in each case, a duly authorized committee thereof) shall, prior to the Effective Time, take all such actions within its control as may be necessary or appropriate to cause the Contemplated Transactions and any other dispositions of equity securities of the Company in connection with the Contemplated Transactions by each individual who is a director or executive officer of the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

6.12 Approval by Sole Stockholder of Purchaser. Immediately following the execution and delivery of this Agreement by the Parties, Parent, as sole stockholder of Purchaser, shall adopt this Agreement and approve the Merger, in accordance with Delaware Law, by written consent.

6.13 Stockholder Litigation. The Company shall notify Parent, in writing and promptly after acquiring knowledge thereof, of any litigation related to this Agreement, the Offer, the Merger or the other Contemplated Transactions that is brought against or, to the Knowledge of the Company, threatened against, the Company, its Subsidiaries and/or any of their respective directors or officers (such litigation, “Transaction Litigation”) and shall keep the Parent informed on a reasonably current basis with respect to the status thereof. The Company shall provide the Parent (a) the opportunity to participate in the defense of any such Transaction Litigation and (b) the right to review and comment on all material filings or responses to be made by the Company in connection with any such Transaction Litigation (and the Company shall in good faith take such comments and other advice into consideration). The Parties agree to cooperate in the defense and settlement of any such Transaction Litigation, and the Company shall not settle any such Transaction Litigation without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed) (any such Transaction Litigation settled in accordance with this Section 6.13, “Settled Transaction Litigation”). Without limiting in any way the Parties’ obligations under Section 6.4, each of the Company and Parent shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any Transaction Litigation contemplated by this Section 6.13.

6.14 Termination of Company Plans. The Company shall take any and all actions required (including, without limitation, the adoption of resolutions by the Company Board of Directors, which shall be subject to approval by Parent) to terminate the Company Stock Plans, and to amend, suspend or terminate any other Company Plan Parent so requests (which request shall be made not less than ten (10) Business Days prior to the Effective Time), in each case effective immediately prior to the Effective Time to the extent such actions are permitted by Law (including any required prior notice obligations).

6.15 Termination of Certain Agreements. The Company shall cause the Contracts set forth in Section 6.15 of the Company Disclosure Letter to be terminated immediately prior to the Effective Time, without any liability being imposed on the part of the Parent or the Surviving Company.

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6.16 FIRPTA Certificate. The Company shall deliver to Parent, on or prior to Closing, a certificate meeting the requirements of Treasury Regulation Section 1.1445-2(c)(4), together with an accompanying notice meeting the requirements of Treasury Regulation Section 1.897-2(h), to the effect that the Shares are not a “U.S. real property interest” within the meaning of Section 897 of the Code.

6.17 CVR. Parent shall deliver to the Company, on or prior to the Acceptance Time, the CVR Agreement, duly executed by Parent, Purchaser and the Rights Agent and the CVR Agreement shall be in full force and effect at the Acceptance Time.

ARTICLE VII

CONDITIONS

7.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each Party to effect the Merger is subject to the satisfaction or waiver at or prior to the Closing of each of the following conditions:

(a) Purchase of Shares. Purchaser shall have accepted for payment all of the Shares validly tendered and not validly withdrawn pursuant to the Offer and such Shares accepted shall be equal to or in excess of the Minimum Condition.

(b) Law; Judgment. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Judgment (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger.

7.2 Frustration of Conditions. None of the Company, Parent or Purchaser may rely, either as a basis for not consummating the Merger or the other transactions or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in Section 7.1, or Schedule I, as the case may be, to be satisfied if such failure was caused by such Party’s material breach of any provision of this Agreement.

ARTICLE VIII

TERMINATION

8.1 Termination by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Acceptance Time by mutual written consent of the Company and Parent.

8.2 Termination by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Acceptance Time by either Parent or the Company if:

(a) the Acceptance Time shall not have been occurred by 11:59 p.m. (Pacific Standard time) on July 15, 2023 (the “Termination Date”), provided, however, that the right to terminate this Agreement under this Section 8.2(a) shall not be available to any party whose material breach of any provision of this Agreement has been the cause of, or resulted in, the failure of the Acceptance Time to occur by the Termination Date;

(b) the Offer shall have terminated or expired in accordance with its terms as a result of the non-satisfaction of the Minimum Condition (subject to the rights and obligations of Parent or Purchaser to extend the Offer pursuant to Section 1.1(d)(ii)); provided, however, that the right to terminate this Agreement under this Section 8.2(b) shall not be available to (x) Parent or Purchaser if Parent or Purchaser shall have failed to comply in any material respect with their respective obligations under Section 1.1(d)(ii) or Section 1.1(e) or (y) the Company if the Company shall have failed to comply in any material respects with its obligations under Section 1.2 or Section 6.2(a); or

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(c) any Law or Judgment permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable; provided that the right to terminate this Agreement under this Section 8.2(c) shall not be available to any Party if its material breach of any provision of this Agreement has been the cause of, or resulted in the failure of the Acceptance Time to occur by the Termination Date.

8.3 Termination by the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Acceptance Time by the Company if:

(a) there has been a breach of any representation, warranty, covenant or agreement made by Parent or Purchaser in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that:

(i) (w) any of the representations and warranties of Parent or Purchaser contained in this Agreement (except for the representations and warranties contained in Sections 5.1 (Organization and Good Standing), 5.2 (Corporate Authority and Approval), and 5.6 (Brokers and Finders)) shall not be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) at and as of the date of this Agreement or at and as of the Acceptance Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case not as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect; (x) any of the representations and warranties of Parent or Purchaser contained in Sections 5.1 (Organization and Good Standing), Section 5.2 (Corporate Authority and Approval), and 5.6 (Brokers and Finders) shall not be true and correct in all material respects at and as of the date of this Agreement or at and as of the Acceptance Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case not as of such earlier date); (y) any of the representations and warranties of Parent or Purchaser set forth in Section 5.8 (Sufficient Funds) shall not be true and correct in all respects at and as of the date of this Agreement or at and as of the Acceptance Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case not as of such earlier date); or (z) either Parent or Purchaser shall not have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Acceptance Time; and

(ii) such breach or failure to be true is not curable by the Termination Date or, if curable, is not cured prior to the earlier of (i) 20 days following notice to Parent from the Company of such breach or failure and (ii) the date that is three Business Days prior to the Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.3(a) if the Company is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement;

(b) (i) the Company Board authorizes the Company, to the extent permitted by and subject to complying with the terms of Section 6.2, to enter into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Company Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, the Company, subject to complying with the terms of Section 6.2, enters into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Company Superior Proposal that did not result from a material breach of this Agreement, and (iii) prior to or concurrently with such termination, the Company pays to Parent in immediately available funds any fees required to be paid pursuant to Section 8.5(a); or

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(c) the CVR Agreement shall not have been executed by Parent, Purchaser or the Rights Agent or shall not be in full force and effect at the Acceptance Time.

8.4 Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Acceptance Time by Parent if:

(a) (i) the Company Board shall have made a Company Change in Recommendation, (ii) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or Company 13E-3, (iii) a tender offer or exchange offer for outstanding Shares shall have been commenced (other than by the Parent or an Affiliate of the Parent) and the Company Board shall have recommended that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 Business Days after the commencement of such tender or exchange offer, the Company Board shall have failed to recommend against acceptance of such offer; or (iv) the Company shall have materially breached or shall have failed to perform in any material respect its obligations set forth in Section 6.2; or

(b) at any time prior to the Effective Time, by action of the Parent Board, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Section (c)(i) and Section (c)(ii) of Schedule I would not be satisfied by the Termination Date and such breach or failure to be true is not curable by the Termination Date or, if curable, is not cured prior to the earlier of (i) 20 days following notice to the Company from Parent of such breach or failure and (ii) the date that is three Business Days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.4(b) if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement.

8.5 Company Termination Fee.

(a) If this Agreement is terminated (x) by Parent pursuant to Section 8.4(a) (Company Change in Recommendation) or (y) by the Company pursuant to Section 8.3(b) (Company Superior Proposal), then the Company shall, within two Business Days after such termination in the case of clause (x) or concurrently with such termination in the case of clause (y), pay Parent the Termination Fee.

(b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(a) (Termination Date) or Section 8.2(b) (Minimum Condition), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Company Acquisition Proposal shall have been publicly made to the Company or its stockholders and not publicly withdrawn, and (iii) within 12 months after the date of a termination in either of the cases referred to in clause (i) of this Section 8.5(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal which is subsequently consummated, then the Company shall pay the Termination Fee concurrently with such consummation; provided that solely for purposes of Section 8.5(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “twenty (20%) or more” shall be deemed to be references to “fifty percent (50%) or more”. In no event shall the Company be required to pay the Termination Fee on more than one occasion.

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8.6 Effect of Termination and Abandonment. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.6 and in Section 9.1) shall become void and of no effect with no liability on the part of any Party (or of any of its respective Representatives); provided that no such termination shall relieve (1) any Party from any liability for Fraud or Willful Breach of this Agreement prior to such termination and (2) the Company from any obligation to pay, if applicable, the Termination Fee pursuant to Section 8.5. For purposes of this Agreement, the term “Willful Breach” means a deliberate act or a deliberate failure to act, taken or not taken with the actual knowledge that such act or failure to act would, or would reasonably be expected to, result in or constitute a material breach of this Agreement, regardless of whether breaching was the object of the act or failure to act. “Fraud” means, with respect to any Party, an act by such Party in the making of a representation or warranty in Article IV or Article V, as applicable, or in any certificate delivered pursuant hereto, and that (a) constitutes a false, materially incomplete or materially inaccurate representation of a material fact set forth in the representations and warranties in Article IV or Article V, as applicable, or in any certificate delivered pursuant hereto; (b) is made with knowledge by the Party making such representation or warranty that such representation or warranty is false, materially incomplete or materially inaccurate; (c) is made with a specific intention by the Party making such representation or warranty to induce the Party to whom such representation or warranty was made to act or refrain from acting in reliance upon it; (d) causes that Party to whom such representation or warranty was made to take or refrain from taking action; and (e) causes such Party to whom such representation or warranty was made to suffer damage by reason of such reliance.

8.7 Remedies.

(a) Each Party acknowledges that the agreements contained in Section 8.5 are an integral part of the Contemplated Transactions, and that, without these agreements, no Party would have entered into this Agreement; accordingly, if the Company fails to pay promptly the Termination Fee pursuant to Section 8.5 and, in order to obtain such Termination Fee, Parent commences a suit which results in a judgment against the Company, the Company shall pay to the Parent its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the Termination Fee at the prime rate in effect on the date the Termination Fee was required to be paid through the date of full payment thereof.

(b) Parent acknowledges and agrees that the monetary remedies set forth in Section 8.5 and the specific performance remedies set forth in Section 9.15 shall be the sole and exclusive remedies of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Contemplated Transactions to be consummated except in the case of Fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such Fraud or Willful Breach), and upon payment of such amount, none of the Company and the Company Subsidiaries or any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions, except for the liability of the Company in the case of Fraud or a Willful Breach of any covenant, agreement or obligation.

(c) Company acknowledges and agrees that the specific performance remedies set forth in Section 9.15 shall be the sole and exclusive remedies of the Company and the Company Subsidiaries against Parent, Purchaser and any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss as a result of the failure of the Contemplated Transactions to be consummated except in the case of Fraud or a Willful Breach of any covenant, agreement or obligation (in which case only Parent shall be liable for damages for such Fraud or Willful Breach).

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ARTICLE IX

MISCELLANEOUS AND GENERAL

9.1 Survival. This Article IX and the agreements of the Company, Parent and Purchaser in Section 6.7 (Expenses), and Section 6.8 (Indemnification; Directors’ and Officers’ Insurance) shall survive the consummation of the Merger. This Article IX (other than Section 9.2 (Modification or Amendment), Section 9.3 (Waiver) and Section 9.14 (Assignment)) and the agreements of the Company, Parent and Purchaser contained in Section 6.4 (Access, Consultation), Section 6.7 (Expenses), Section 8.5 (Company Termination Fee), Section 8.6 (Effect of Termination and Abandonment), Section 8.7 (Remedies) and the Licensing Agreement shall survive the termination of this Agreement. All other representations, warranties, covenants and agreements in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the consummation of the Merger or the termination of this Agreement. This Section 9.1 shall not limit any covenant or agreement of the Parties which by its terms contemplates performance after the Effective Time.

9.2 Modification or Amendment. Subject to the provisions of applicable Law, at any time prior to the Effective Time, this Agreement (including any Schedule hereto) may only be amended, modified or supplemented by an instrument in writing signed on behalf of each Party.

9.3 Waiver.

(a) Any provision of this Agreement may be waived prior to the Effective Time if, and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective.

(b) No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

9.4 Counterparts; Effectiveness; .pdf Signature. This Agreement may be executed in any number of counterparts (including by facsimile or by attachment to electronic mail in portable document format (PDF)), each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall constitute an original for all purposes.

9.5 Governing Law and Venue; Waiver of Jury Trial.

(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Each of the Parties hereby irrevocably submits exclusively to the jurisdiction of the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) and hereby waives, and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or

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by such courts, and each of the Parties hereto irrevocably agrees that all claims relating to such action, suit or proceeding shall be heard and determined in such a state or federal court. The Parties hereby consent to and grant any such court jurisdiction over the Person of such Parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 9.6 or in such other manner as may be permitted by Law, shall be valid and sufficient service thereof.

(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5.

9.6 Notices. Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) on the date sent by e-mail (if no automated notice of delivery failure is received by the sender) if sent prior to 8:00 p.m. Pacific Time on a Business Day, and on the next Business Day if sent after 8:00 p.m. on a Business Day or on a day other than a Business Day, (b) when delivered, if delivered personally to the intended recipient, or (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a Party at the following address for such Party:

if to Parent or Purchaser

Shin Nippon Biomedical Laboratories, Ltd.

2438 Miyanoura-cho, Kagoshima-shi, Kagoshima

891-1394, Japan

Attention: Shinji Nitanda

Email: [***]

with copies to (which shall not constitute notice):

Wilson Sonsini Goodrich & Rosati P.C.

One Market, Spear Tower, Suite 3300

San Francisco, California 94105

Attention: Robert T. Ishii

Email: [***]

Wilson Sonsini Goodrich & Rosati P.C.

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

Attention: Ian B. Edvalson

Email: [***]

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if to the Company

Satsuma Pharmaceuticals, Inc.

4819 Emperor Boulevard,

Durham, North Carolina 27703

Attention: John Kollins

Email: [***]

with copies to (which shall not constitute notice):

Latham & Watkins LLP

140 Scott Drive

Menlo Park, CA 94025

Attention: Joshua M. Dubofsky

Email: [***]

or to such other persons or addresses as may be designated in writing by the Party to receive such notice as provided above.

9.7 Entire Agreement. This Agreement (including any exhibits hereto, the Company Disclosure Letter and the Parent Disclosure Letter), Licensing Agreement, the Support Agreements, the CVR Agreement and the other documents and instruments executed pursuant hereto constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the Parties, with respect to the subject matter hereof.

9.8 No Third Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the Parties any rights or remedies hereunder, other than (a) as provided in Section 6.8 (Indemnification; Directors’ and Officers’ Insurance), (b) the right of the Company’s stockholders who tender their Shares in the Offer to receive the Offer Consideration after the Acceptance Time and the right of the Company’s stockholders who do not tender their Shares to receive the Merger Consideration after the Closing (other than holders of Dissenting Shares), (c) the right of the holders of awards under the Company Stock Plans to receive such consideration as provided for in Section 3.4 after the Closing, and (d) the eligibility of the holders of Vested Company Options to receive CVRs after the Closing.

9.9 Obligations of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action, such requirement shall be deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action. Whenever this Agreement requires a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Effective Time, on the part of the Surviving Company to cause such Subsidiary to take such action.

9.10 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the Parties shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not, subject to clause (a) above, be affected by such invalidity or unenforceability, except as a result of such substitution, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

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9.11 No Other Representations and Warranties.

(a) Except for the representations and warranties of the Company contained in Article IV, Parent and Purchaser acknowledge that neither the Company nor any Company Subsidiary is making and has not made, and no other Person is making or has made on behalf of the Company or Company Subsidiaries, any express or implied representation or warranty in connection with this Agreement or the Contemplated Transactions. Neither Parent nor Purchaser is relying and neither Parent nor Purchaser has relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties in Article IV, including the Company Disclosure Letter. Such representations and warranties by the Company constitute the sole and exclusive representations and warranties of the Company and the Company Subsidiaries in connection with the Contemplated Transactions and each of Parent and Purchaser understands, acknowledges and agrees that all other representations and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed by the Company and the Company Subsidiaries.

(b) Except for the representations and warranties Parent and Purchaser contained in Article V, the Company acknowledges that neither Parent nor Purchaser is making or has made, and no other Person is making or has made on behalf of the Parent or Purchaser, any express or implied representation or warranty in connection with this Agreement or the Contemplated Transactions. The Company is not relying and it has not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties in Article V, including the Parent Disclosure Letter. Such representations and warranties by Parent and Purchaser constitute the sole and exclusive representations and warranties of Parent and Purchaser in connection with the Contemplated Transactions and the Company understands, acknowledges and agrees that all other representations and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed by Parent.

9.12 Interpretation. The table of contents and the Article, Section and paragraph headings or captions herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” when used in this Agreement is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. When calculating the period of time before which, within which or following which any act is to be done or step taken, the date that is the reference date in beginning the calculation of such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to all genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. The Parties have participated jointly in negotiating and

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drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. References to “cash,” “dollars” or “$” are to U.S. dollars.

9.13 Certain Definitions: For the purposes of this Agreement:

(a) “Affiliate” means, with respect to any Person, another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.

(b) “Anti-Corruption and Anti-Bribery Laws” means the FCPA, applicable laws passed pursuant to the Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and any laws of any other jurisdiction (national, state or local) where the Company operates concerning or relating to public sector or private sector bribery or corruption.

(c) “Antitrust Laws” means the Sherman Antitrust Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act and all other federal, state and foreign statutes, rules, regulations, orders, decrees and other Laws and Judgments that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or competition.

(d) “Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking and savings and loan institutions are authorized or required by Law to be closed in San Francisco, California.

(e) “Cash and Cash Equivalents” means all cash, cash equivalents and marketable securities determined in a manner consistent with the manner in which such items were historically determined and in accordance with the financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents.

(f) “Company Affiliate” means any Person under common control with any of the Company or any Company Subsidiary within the meaning of Section 414(b), Section 414(c), Section 414(m) or Section 414(o) of the Code, and the regulations issued thereunder.

(g) “Company Associate” means any current or former officer, employee, independent contractor, consultant or director, of or to the Company or any Company Subsidiary or any controlled Company Affiliate.

(h) “Company Data” means all data and information Processed by or for the Company or any Company Subsidiary.

(i) “Company IP” means Company Owned IP and Company Licensed IP.

(j) “Company Licensed IP” means all Intellectual Property Rights that are exclusively licensed or purported to be exclusively licensed to the Company or any Company Subsidiary.

(k) “Company Material Adverse Effect” means a Material Adverse Effect with respect to the Company.

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(l) “Company Net Cash” means, without duplication and consistent with Schedule III, (a) the sum of the Company’s and the Company’s Subsidiaries’ Cash and Cash Equivalents (other than restricted cash), prepaid expenses, other current assets (including research & development tax credits) and right of use assets under lease agreements, in each case as of the Closing Date, minus (b) the sum of the Company’s short and long term liabilities (excluding impairment accruals and other non-cash liabilities), including accounts payable and accrued expenses (without duplication of any expenses accounted for below), in each case as of such date and determined in a manner consistent with the manner in which such items were historically determined and in accordance with the Company’s audited financial statements and the Company Balance Sheet to the extent consistent with GAAP, minus (c) Transaction Expenses (other than pursuant to clauses (b) or (c) of the definition of Transaction Expenses) of the Company and the Company Subsidiaries, to the extent unpaid as of the Closing, minus (d) the cash cost of any paid time off, accrued and unpaid retention payments or other bonuses due to any current or former employee, director or independent contractor of the Company and the Company Subsidiaries as of the Closing Date, minus (e) all payroll, employment or other withholding Taxes incurred by the Company and the Company Subsidiaries and any Company Associate (to the extent paid or to be paid by the Company on the behalf of such Company Associate) in connection with any payment amounts set forth in clauses (c) or (d) and the exercise of any Company Option on or prior to the Effective Time, minus (f) the cash cost of any unpaid retention payment amounts due under any insurance policy with respect to any Legal Proceeding against the Company or any Company Subsidiary other than with respect to any Transaction Litigation, minus (g) the expected costs and expenses of the Company or any Company Subsidiary arising from Transaction Litigation (excluding any fees and expenses of legal counsel), to the extent unpaid as of the Closing and which shall in no event be deemed to be an amount in excess of (x) $100,000 in the aggregate less (y) any amounts previously paid under clause (m) to the extent not added to the calculation of Company Net Cash, minus (h) notice payments, fines or other payments to be made by the Company or any Company Subsidiary in order to terminate any existing agreement to which the Company is a party, minus (i) payments up to the unpaid deductible amount under the Company’s D&O insurance due in connection with Legal Proceedings in effect as of the date of this Agreement or initiated following the date of this Agreement and before the Closing assumed by the insurer or expected to be assumed by the insurer other than in connection with Transaction Litigation, minus (j) any premium related to the director and officer insurance tail policy (less any prepaid amounts), minus (k) the amount of any Indebtedness, minus (l) any unpaid pre-Closing Taxes, plus (m) any previously paid costs or expenses of the Company or any Company Subsidiary arising from Transaction Litigation (excluding any fees and expenses of legal counsel) as of the Closing, in excess of $100,000 in the aggregate. For illustrative purposes only, a sample statement of Company Net Cash as of the date described therein is set forth on Schedule III; provided, that all costs and expenses incurred by the Company after May 31, 2023 for or allocable to the Development, Manufacture and Commercialization of STS101, shall, to the extent they have reduced the Company Net Cash, be added back for purposes of the calculation thereof.

(m) “Company Option” means any issued and outstanding and unexercised option to purchase Shares (whether granted under any Company Stock Plan, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted).

(n) “Company Owned IP” means all Intellectual Property Rights that are owned or purported to be owned by the Company or any Company Subsidiary.

(o) “Company Plan” means each employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA; and each stock option, stock purchase, stock appreciation, or other equity-related compensation, retention, bonus or incentive, severance, deferred compensation, employment, consulting, retention, executive compensation, change in control, supplemental income, retirement, profit sharing, vacation, paid leave or other paid time off, holiday, severance, employee loan, cafeteria, medical, disability, death benefit, worker’s compensation, fringe

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benefit, and each other employee benefit plan, policy, program, agreement and arrangement (whether written or oral, qualified or nonqualified, funded of unfunded, U.S. or non-U.S., currently effective or terminated), in each case, that is now, or was within the past six (6) years, maintained, sponsored or contributed to, or required to be maintained, sponsored or contributed to, by the Company or any Company Subsidiary under which compensation or benefits are or have been provided to current or former directors, employees, consultants, independent contractors of the Company or any Company Subsidiary (or their spouses, dependents or beneficiaries) or with respect to which the Company or any Company Subsidiary has or may have any liability (including on account of any ERISA Affiliate). In the case of a Company Plan funded through a trust described in Section 401(a) of the Code or an organization described in Section 501(c)(9) of the Code, or any other funding vehicle, each reference to such Company Plan shall include a reference to such trust, organization or other vehicle.

(p) “Company Stock Plans” means the Company’s 2019 Incentive Award Plan and the Company’s 2016 Equity Incentive Plan (in each case, as amended from time to time).

(q) “Consent” means consent, approval, ratification, permission, authorization, clearance, waiver, Permit or order.

(r) “Contract” means any written, oral or other agreement, contract, subcontract, lease, understanding, arrangement, instrument, note, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan or legally binding commitment or undertaking of any nature.

(s) “CVR Agreement” means a Contingent Value Rights Agreement in substantially the form attached as Exhibit C.

(t) “Data Processing Policy” means any policy, statement, representation, or notice of the Company or any Company Subsidiary relating to the Processing of Company Data, privacy, data protection, or security.

(u) “Development, Manufacture and Commercialization” means any and all activities and processes for or associated with (A) obtaining, maintaining and expanding approvals for STS101, including preclinical testing, test method development and stability testing, toxicology, formulation, process development, quality assurance/control development, statistical analysis, clinical studies, quality of life assessments, pharmacoeconomics, post-marketing studies, label expansion studies, regulatory affairs, and further activities relating to development or preparation of STS101 for commercialization, (B) the manufacture, production or processing of STS101 including the active pharmaceutical ingredient, delivery device and other components therein, including activities performed in support of CMC (chemistry, manufacturing and controls), formulating active pharmaceutical ingredients into the final dosage form for incorporation into STS101 packaging, sterilization, physical and regulatory labeling and other finishing activities, quality control and assurance testing, in each case with respect to STS101, (C) the promotion, sales, marketing, and distribution for sale of STS101 (including importing, exporting, transporting, customs clearance, warehousing, invoicing, handling, and delivering STS101 to customers), sales force efforts, detailing, advertising, market research, market access (including price and reimbursement activities), marketing, and sales (including receiving, accepting, and filling orders) and distribution for sale, and all activities directed to obtaining pricing and reimbursement approvals for STS101 any and all medical education activities, including medical support planning, health economics and outcomes, publications and pharmacovigilance for STS101; and, in each case (A), (B) and (C), together with all interactions with regulatory and other governmental authorities and other regulatory affairs in support of or related to any of the foregoing. Without limiting the generality of the foregoing, the following amounts shall be deemed to be costs or expenses allocable to Development, Manufacture and Commercialization: (i) salaries, bonuses, incentive compensation or other compensation or benefits payable

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or paid to an employee, consultant, or independent contractor of the Company or a Company Subsidiary, including the employees and consultants set forth on Section 9.13(u) of the Company Disclosure Letter, (ii) travel expenses, other related expenses and ordinary course miscellaneous expenses of employees, consultants or independent contracts of the Company, (iii) expenses of the Company related to information technology and software support, (iv) rents, administrative fees or other amounts payable or paid with respect to the Leased Company Property or (v) administrative expenses.

(v) “Dissenting Shares” means Shares issued and outstanding immediately prior to the Effective Time that are held by a holder who has not tendered its Shares pursuant to the Offer, is entitled to demand and properly demands appraisal rights of such Shares pursuant to, and who is complying in all respects with, the provisions of Section 262 of the DGCL (until such time as such holder effectively withdraws, fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such Shares, at which time such Shares shall cease to be Dissenting Shares).

(w) “Environmental Laws” means any Law concerning or relating to pollution or protection of the environment or natural resources, protection of human health and safety as related to exposure to any Hazardous Materials, or the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials.

(x) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

(y) “ESPP” means the Company’s 2019 Employee Stock Purchase Plan (as amended from time to time).

(z) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(aa) “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.

(bb) “FDA” means the U.S. Food and Drug Administration or any successor Governmental Entity thereto.

(cc) “Federal Health Care Program” means any “federal health care program” as defined in 42 U.S.C. § 1320a-7b(f) (including Medicare, state Medicaid programs, TRICARE and similar or successor programs) and any other health care or payment program administered or financed in whole or in part by any domestic federal, state or local government and any successor program to any of the foregoing.

(dd) “GAAP” means United States generally accepted accounting principles.

(ee) “Governmental Entity” means any (i) federal, national, state, provincial or local, whether domestic or foreign, government or any court of competent jurisdiction, administrative agency, legislative body or commission or other governmental authority or instrumentality, (ii) government-owned or controlled entity (including state-owned or state-controlled businesses or quasi-government entities); (iii) political party; (iv) royal family; (v) notified body; or (vi) public international organization (e.g., the World Bank or Red Cross).

(ff) “Governmental Official” is any (a) officer, agent, or employee of a Governmental Entity, (b) person acting in an official capacity for or on behalf of a Governmental Entity, (c) candidate for government or political office, or (d) member of a royal family.

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(gg) “Hazardous Materials” means any substance, material or waste that is listed, defined or otherwise characterized as “hazardous”, “toxic”, “radioactive” or a “pollutant”, or “contaminant” or terms of similar meaning or effect, or for which liability or standards of conduct may be imposed under any Environmental Law, including petroleum or its by-products, asbestos and polychlorinated biphenyls.

(hh) “Health Care Laws” means all healthcare Laws applicable to the business of the Company and its Subsidiaries including without limitation: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §301 et seq.), as amended (the “FDCA”), the Public Health Service Act (42 U.S.C. § 201 et seq.) (“Public Health Service Act”), and the regulations promulgated thereunder, including good laboratory practices, good clinical practices, good manufacturing practices, or any other comparable Laws governing the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product tested, developed, promoted, marketed, manufactured or distributed by or on behalf of the Company or any of its Subsidiaries; (ii) all Laws relating to Human Subjects Research, including those applicable or relating to objectivity in research, conflicts of interest, research integrity, state and federal gifts bans and transparency laws, human subjects research consents and authorizations, adverse event reporting, proper documentation, and valid data collection and reporting procedures (collectively, clauses (i) and (ii) are referred to as the “FDA and Research Laws”) (iii) the Clinical Laboratory Improvement Act (42 U.S.C. § 263a, et seq.) (iv) HIPAA and similar applicable state Laws; (v) all applicable Laws governing physician dispensing and storage of pharmaceuticals, telemedicine, and quality, safety, and mandated reporting of incidents, occurrences, diseases and events; and (vi) any amendments to the foregoing or similar or successor Laws to the foregoing.

(ii) “HSR Act” means Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

(jj) “Human Subjects Research” shall mean any “research” involving a “human subject” as set forth in applicable Law, and, if not so defined, means any of the following: (i) “research” involving a “human subject” as those terms are defined in 45 C.F.R. § 46.102; or (ii) a “clinical investigation” as defined in 21 C.F.R. § 50.3(c) and similar FDA regulations.

(kk) “Indebtedness” means, with respect to any Person, without duplication, (i) all obligations of such Person for borrowed money, or with respect to deposits or advances of any kind to such Person, including related prepayment fees, final fees or other similar fees, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all capitalized lease obligations of such Person or obligations of such Person to pay the deferred and unpaid purchase price of property and equipment, (iv) all obligations of such Person pursuant to securitization or factoring programs or arrangements, (v) all guarantees and arrangements having the economic effect of a guarantee of such Person of any Indebtedness of any other Person (other than any guarantee by Parent or any wholly owned Parent Subsidiary with respect to Indebtedness of Parent or any wholly owned Parent Subsidiary, or any guarantee by the Company or any wholly owned Company Subsidiary with respect to Indebtedness of the Company or any wholly owned Company Subsidiary), (vi) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or covenants of others or to purchase the obligations or property of others, (vii) net cash payment obligations of such Person under swaps, options, derivatives and other hedging agreements or arrangements that will be payable upon termination thereof (assuming they were terminated on the date of determination), (viii) for deferred purchase price, including earn-outs, or (ix) letters of credit, bank guarantees, and other similar contractual obligations entered into by or on behalf of such Person.

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(ll) “Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including copyrights, moral rights, software, databases, and mask works; (b) trademarks, service marks, trade dress, logos, trade names and other source identifiers and similar rights and any goodwill associated therewith; (c) trade secrets and know how rights in inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other forms of technology; (d) patents and industrial property rights; (e) other proprietary rights in intellectual property; and (f) all registrations, renewals, extensions, statutory invention registrations, provisionals, non-provisionals, continuations, continuations-in-part, divisionals, or reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(e)” above (whether or not in tangible form and including all tangible embodiments of any of the foregoing, such as samples, studies and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights to sue or seek other remedies arising from or relating to the foregoing.

(mm) “Judgment” means any judgment, order, injunction, ruling, writ award or decree of any Governmental Entity.

(nn) “Key Supplier” means Recipharm HC Limited.

(oo) The “Knowledge” of any Person means, in the case of Parent, the actual knowledge after reasonable inquiry of any of the Persons set forth on Section 9.13(oo) of the Parent Disclosure Letter and, in the case of the Company, the actual knowledge after reasonable inquiry of any of the Persons set forth on Section 9.13(oo) of the Company Disclosure Letter.

(pp) “Law” means any federal, state, local, municipal, foreign or transnational law, constitution, resolution, code, edict, order, injunction, judgment, statute, ordinance, common law, ruling, writ, award or decree issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

(qq) “Leased Company Property” means the real property leased, subleased, or licensed by or from the Company or any of its Subsidiaries, or otherwise used or occupied by the Company or any of its Subsidiaries, together with, to the extent leased, licensed or subleased by the Company or any of its Subsidiaries, all buildings and other structures, facilities, fixtures or improvements located thereon and all easements, licenses, rights and appurtenances of the Company or any of its Subsidiaries relating to the foregoing.

(rr) “Legal Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

(ss) “Licensing Agreement” means the Licensing and Assignment agreement entered into between Company and Parent on June 30, 2016 (as amended as of the date of this Agreement).

(tt) “Liens” means pledges, liens, claims, charges, mortgages, deeds of trust, rights of first offer or first refusal, options, encumbrances and security interests of any kind or nature whatsoever (collectively, with covenants, conditions, restrictions, easements, encroachments, any conditional sale or title retention agreements or other third party rights or title defect of any kind or nature whatsoever).

(uu) “Material Adverse Effect” with respect to any Person means any fact, circumstance, effect, change, event or development (an “Effect”) that, individually or in the aggregate with all other Effects, (1) materially adversely affects or would reasonably be expected to materially adversely

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affect the business, financial condition or results of operations of such Person and its Subsidiaries, taken as a whole or (2) would reasonably be expected to prevent or materially impair or delay the consummation of the Contemplated Transactions by such Person, excluding any Effect to the extent that, either alone or in combination, it results from or arises out of (i) changes or conditions generally affecting the industries in which such Person and any of its Subsidiaries operate, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in such industries in respect of the business conducted in such industries, (ii) general economic or political conditions or securities, credit, banking, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (iii) any failure, in and of itself, by such Person to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been, or is reasonably expected to be, a Material Adverse Effect, to the extent permitted by this definition), (iv) the public announcement or pendency of the Contemplated Transactions, including the impact thereof on the relationships, contractual or otherwise, of such Person or any of its Subsidiaries with employees, labor unions, customers, suppliers or partners, (v) any change, in and of itself, in the market price or trading volume of such Person’s securities or in its credit ratings (it being understood that the facts or occurrences giving rise to or contributing to such change may be deemed to constitute, or be taken into account in determining whether there has been, or is reasonably expected to be, a Material Adverse Effect, to the extent permitted by this definition), (vi) any change in applicable Law, regulation or GAAP (or authoritative interpretation thereof), except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (vii) geopolitical conditions, the outbreak or escalation of hostilities, any acts of war (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of this Agreement, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (viii) any hurricane, tornado, flood, earthquake or other natural disaster, except to the extent such fact, circumstance, effect, change, event or development has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (ix) any health emergency, epidemic, pandemic or disease outbreak (including Covid-19) and any action by a Governmental Entity in response thereto, except to the extent such fact, circumstance, effect, change, event or development has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (x) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the Contemplated Transactions, (xi) any taking of any action not required by this Agreement at the written request of the other Parties hereto and (xii) the Strategic Alternatives Disclosure or actions taken pursuant to the Strategic Alternatives Disclosure.

(vv) “Nasdaq” means the National Association of Securities Dealers Automatic Quotation System.

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(ww) “Parent Material Adverse Effect” means any Effect that, individually or taken together with all other Effects that exist or have occurred prior to the date of determination of the occurrence of the Parent Material Adverse Effect, has prevented or materially impaired or materially delayed the consummation of the Contemplated Transactions or would reasonably be expected to prevent or materially impair or materially delay the consummation of Contemplated Transactions.

(xx) “Permitted Liens” means any (1) Lien (i) for Taxes or governmental assessments, charges or claims of payment (A) not yet due and payable or (B) being contested in good faith in appropriate proceedings for which adequate reserves are reflected on the Company Balance Sheet, (ii) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, or other similar lien arising in the ordinary course of business for amounts that are not delinquent, (iii) with respect to zoning, planning, and other limitations and restrictions, including all rights of any Governmental Entity (but not violations thereof), (iv) in the case of any Contract, Liens that are restrictions against the transfer or assignment thereof that are included in the terms of such Contract or any license of Intellectual Property Rights, (v) with respect to this Agreement and Liens created by the execution and delivery of this Agreement, (vi) which is disclosed on the most recent consolidated balance sheet of the Company or Parent, as applicable, or notes thereto which has been previously provided to Parent or the Company, as applicable, or (vii) for which adequate reserves have been established, and (2) non-exclusive licenses of Intellectual Property Rights in the ordinary course of business consistent with past practice.

(yy) “Per Share Price” means $$0.91.

(zz) “Person” means any natural person, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental Entity or other entity.

(aaa) “Privacy and Data Processing Requirement” means any applicable (i) Law relating to privacy, data protection, or security, (ii) Data Processing Policy, or (iii) contractual requirement or requirement of any self-regulatory organization, industry best practice, or industry standard (including, as applicable, the Payment Card Industry Data Security Standard) that is binding on the Company relating to the Processing of Company Data, privacy, data protection, or security.

(bbb) “Process” means, with respect to any data or information, or set of data or information, any operation or set of operations performed thereon, whether or not by automated means, including access, adaptation, alignment, alteration, collection, combination, compilation, consultation, creation, derivation, destruction, disclosure, disposal, dissemination, erasure, interception, maintenance, making available, organization, recording, restriction, retention, retrieval, storage, structuring, transmission, and use, and security measures with respect thereto.

(ccc) “Registered IP” means all Intellectual Property Rights that are registered, filed or issued with, by or under the authority of any Governmental Entity, including all patents, registered marks (including trademarks), registered copyrights, registered mask works and registered trademarks and all applications for any of the foregoing.

(ddd) “Restricted Person” means any Person listed on or covered by, including being owned or controlled by any Person on, any applicable list of sanctioned or restricted persons for export, import, sanctions, government contracting or related reasons administered by any government in which the Company conducts business, including the United States. The lists include but are not limited to the List of Denied Persons and Entity List administered by the U.S. Department of Commerce, and the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Department of Treasury.

(eee) “Rights Agent” means AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC.

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(fff) “SEC” means the Securities and Exchange Commission.

(ggg) “Securities Act” means the Securities Act of 1933, as amended.

(hhh) “SOX” means the Sarbanes-Oxley Act of 2002.

(iii) “Subsidiary” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing Person or body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

(jjj) “Support Stockholders” means RA Capital Healthcare Fund LP, John Kollins, Tom O’Neil, Elisabeth Sandoval Little, Heath Lukatch, Michael Riebe, Mutya Harsch, Rajeev Shah, Thomas B. King, Tom Soloway.

(kkk) “Tax Return” means all Tax returns, declarations, statements, reports, estimates, claims for refund, schedules, forms and information returns, any amended Tax return and any other document filed or required to be filed with a taxing authority relating to Taxes.

(lll) “Taxes” means all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments in the nature of a tax, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions.

(mmm) “Termination Fee” means $905,136.

(nnn) “Transaction Expenses” means with respect to each Party, all fees and expenses incurred by such Party at or prior to the Effective Time in connection with this Agreement and the Contemplated Transactions, including (a) any fees and expenses of legal counsel and accountants, the fees and expenses payable to financial advisors, investment bankers, brokers, consultants, and other advisors of such party; (b) fees paid to the SEC in connection with filing the Offer Documents, the Schedule 14D-9 and the Schedule 13E-3, and any amendments and supplements thereto, with the SEC; (c) any fees and expenses in connection with the printing, mailing and distribution of the Offer Documents, the Schedule 14D-9 and the Schedule 13E-3 and any amendments and supplements thereto; (d) only with respect to the Company, any bonus, severance, change-in-control payments or similar payment obligations (including payments with “single-trigger” provisions triggered at and as of the consummation of the Contemplated Transactions) that become due or payable to any current or former director, officer, employee or consultant of the Company, or any other third party, in connection with the consummation of the Contemplated Transactions; and (e) fees and expenses payable to the Key Supplier or otherwise incurred by the Company or any Company Subsidiary in connection with preserving the ability of the Key Supplier to manufacture and develop Company product candidate STS101, which shall be deemed to be an amount equal to $543,600.

9.14 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise by any of the Parties without the prior written consent of the other parties, and any such assignment without such prior written consent shall be null and void; provided, however, the Parent may assign this Agreement as a whole without such consent in connection with any merger, consolidation, sale or other business combination involving the Parent, as long as the Parent provides written notice to the Company of such assignment and the assignee thereof agrees in writing to assume and be bound as the Parent hereunder.

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9.15 Specific Performance. The Parties acknowledge and agree that irreparable damage would occur and that the Parties would not have any adequate remedy at law if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions hereof in accordance with Section 9.5, without proof of actual damages (and each Party hereby waives any requirement for the security or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at Law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to applicable Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy for any such breach or that the Company or Parent otherwise have an adequate remedy at law.

[The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the Parties hereto as of the date first written above.

SATSUMA PHARMACEUTICALS, INC.
By:	/s/ John Kollins
Name:	John Kollins
Title:	President and Chief Executive Officer
SHIN NIPPON BIOMEDICAL LABORATORIES, LTD., a Japanese Corporation
By:	/s/ Ryoichi Nagata
Name:	Ryoichi Nagata
Title:	Chairman & CEO
SNBL23 MERGER SUB, INC., a Delaware corporation
By:	/s/ Shinji Nitanda
Name:	Shinji Nitanda
Title:	Secretary

[Signature Page to Agreement and Plan of Merger]

SCHEDULE I

Conditions to the Offer

Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Parent’s and Purchaser’s rights to extend, amend or terminate the Offer in accordance with the provisions of that certain Agreement and Plan of Merger, dated as of April 16, 2023 (the “Agreement”), by and among Satsuma Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Shin Nippon Biomedical Laboratories, Ltd., a Japanese corporation (“Parent”) and SNBL23 Merger Sub, Inc. a Delaware corporation (“Purchaser”) (capitalized terms that are used but not otherwise defined in this Schedule I shall have the respective meanings ascribed thereto in the Agreement) and applicable Law, and in addition to (and not in limitation of) the obligations of Purchaser to extend the Offer pursuant to the terms and conditions of the Agreement and applicable Law, neither Parent nor Purchaser shall be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act (relating to the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), pay for any Shares that are validly tendered in the Offer and not validly withdrawn prior to the expiration of the Offer in the event that, at the Expiration Time:

a) the Minimum Condition shall not have been satisfied;

b) any Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Judgment (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Offer or the Merger;

c) any of the following shall have occurred and continue to exist as of immediately prior to the Expiration Time:

i. (x) the representations and warranties of the Company contained in the Agreement (except for the representations and warranties contained in Sections 4.1 (Organization, Good Standing and Qualification), 4.3(a) (Capital Structure), 4.4 (Corporate Authority and Approval), and 4.21 (Brokers and Finders)) shall not be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the date of the Agreement and at and as of the Expiration Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (y) the representations and warranties of the Company contained in Sections 4.1 (Organization, Good Standing and Qualification), 4.4 (Corporate Authority and Approval), and 4.21 (Brokers and Finders) of the Agreement shall not be true and correct in all material respects at and as of the date of the Agreement and at and as of the Expiration Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (z) the representations and warranties of the Company contained in Section 4.3(a) (Capital Structure) of the Agreement shall be true and correct in all respects, except for de minimis inaccuracies at and as of the date of the Agreement and at and as of the Expiration Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

ii. the Company shall not have performed in all material respects all obligations required to be performed by it under the Agreement at or prior to the Expiration Time.

iii. after the date of the Agreement, there shall have occurred any Effect that, individually or in the aggregate, has resulted in a Company Material Adverse Effect that is continuing at the Expiration Time;

iv. Parent shall not have received a certificate signed on behalf of the Company by a senior executive officer of the Company to the effect that the conditions set forth in clauses (i), (ii) and (iii) immediately above have been satisfied;

v. the Agreement shall have been validly terminated in accordance with its terms; or

d) Company Net Cash shall be less than $26,289,999.

The foregoing conditions are for the sole benefit of Parent and Purchaser, may be asserted by Parent or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Parent or Purchaser, in whole or in part, at any time and from time to time, in their sole and absolute discretion (except for the Minimum Condition), in each case, subject to the terms of the Agreement and the applicable rules and regulations of the SEC. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right, which may be asserted at any time and from time to time.

SCHEDULE II

Strategic Alternatives Disclosure

Capitalized terms used but not defined in this Agreement or in Schedule II have the meaning set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 (the “2022 10-K”).

The Company made the following disclosure in the 2022 10-K (the “Strategic Alternatives Disclosure”):

“In November 2022 we announced that we do not plan to invest in commercializing STS101 and that we would actively explore alternatives to maximize value for shareholders, while minimizing cash expenditures. Based on the following factors, we revised our business plan and strategy in order to maximize value for our stockholders:

• results of the Phase 3 SUMMIT trial, in which STS101 did not achieve statistical superiority to placebo on the co-primary outcome measures;

• our belief, based on review of the SUMMIT trial results in their entirety and our primary market research conducted subsequent to announcement of the SUMMIT trial results, that STS101, if approved and successfully commercialized, has the potential to be an important and differentiated option for the acute treatment of migraine that can address the unmet needs of many people living with migraines;

• the significant decrease in our stock price that occurred following our announcement of the SUMMIT trial results;

• current and anticipated future capital market conditions; and

• our projected need for substantial additional capital were we to continue to develop STS101 through potential regulatory approval and pursue independent commercialization of STS101.

Accordingly, key elements of our revised business plan and strategy are as follows:

• seek to conclude a strategic transaction with an industrial partner or financial sponsor on favorable terms under which a counterparty will financially support and assume responsibility for completing development of and commercializing STS101 (Potential Strategic Transaction);

• minimize cash expenditures and continue to invest in and advance the STS101 development program only to the extent necessary to maintain its viability until such time as we may be able to conclude a Potential Strategic Transaction. To this end, in March 2023, we filed an NDA with the FDA for STS101, and if the FDA accepts the NDA for substantive review, we anticipate the FDA action date for the STS101 NDA will be in January 2024; and

• seek no further funding, as such funding, if available at all, would likely not be available on terms that would be acceptable or favorable to us.

There can be no assurance that we will be able to successfully execute our revised business plan and strategy, and in the event we are unable to timely conclude a Potential Strategic Transaction on acceptable terms, we may be forced to discontinue development of STS101, withdraw the STS101 NDA and pursue other strategic alternatives, such as dissolution and wind-down.”

SCHEDULE III

Company Net Cash Calculation

Exhibit A

Form of Tender and Support Agreement

Exhibit B

Certificate of Merger

CERTIFICATE OF MERGER

of

SNBL23 MERGER SUB, INC.

a Delaware corporation

with and into

SATSUMA PHARMACEUTICALS, INC.

a Delaware corporation

Dated:             , 2023

This Certificate of Merger (this “Certificate”) is being executed and filed pursuant to Section 251(c) of the General Corporation Law of the State of Delaware (the “DGCL”) by SATSUMA PHARMACEUTICALS, INC. The undersigned hereby certifies that:

FIRST: The name and jurisdiction of organization of each of the constituent entities (the “Constituent Entities”) which are to merge are as follows:

Name of Constituent Entity	Organizational Form		Jurisdiction of Organization
SNBL23 MERGER SUB, INC.		Corporation		Delaware
SATSUMA PHARMACEUTICALS, INC.		Corporation		Delaware

SECOND: The Agreement and Plan of Merger, dated as of April 16, 2023 (the “Merger Agreement”), by and among SHIN NIPPON BIOMEDICAL LABORATORIES, LTD., a Japanese corporation, SNBL23 MERGER SUB, INC., a Delaware corporation (“Purchaser”), and SATSUMA PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), has been approved, adopted, executed and acknowledged by the Company in accordance with Section 251(h) of the DGCL and by the Purchaser in accordance with Section 251(c) and Section 228 of the DGCL by the written consent of the sole stockholder of Purchaser.

THIRD: The Company will continue as the corporation surviving the merger of Purchaser with and into the Company (the “Merger”) and the name of the surviving corporation will be SATSUMA PHARMACEUTICALS, INC. (the “Surviving Company”).

FOURTH: Upon effectiveness of the Merger, the Certificate of Incorporation of the Company as in effect immediately prior to the effective time of the Merger shall be amended and restated in its entirety to read as set forth on Exhibit A hereto and, as so amended and restated, shall be the Certificate of Incorporation of the Surviving Company until thereafter amended as provided therein or by applicable law.

FIFTH: The Merger shall become effective at the time this Certificate is filed with the Secretary of State of the State of Delaware.

SIXTH: The executed Merger Agreement is on file at the office of the Surviving Company at the following address: 4819 Emperor Boulevard, Durham, North Carolina 27703.

SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Company, on request and without cost, to any stockholder of either Constituent Entity.

(Signature Page Follows)

IN WITNESS WHEREOF, the undersigned has caused this Certificate of Merger to be executed as of the date first written above.

SATSUMA PHARMACEUTICALS, INC
By:
Name:	John Kollins
Title:	President and Chief Executive Officer

Signature Page to Certificate of Merger

Exhibit A

Second Amended and Restated Certificate of Incorporation

of

SATSUMA PHARMACEUTICALS, INC

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SATSUMA PHARMACEUTICALS, INC

ARTICLE I

The name of the corporation is SATSUMA PHARMACEUTICALS, INC. (the “Company”).

ARTICLE II

The address of the Company’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the registered agent at such address is The Corporation Trust Company.

ARTICLE III

The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law, as the same exists or as may hereafter be amended from time to time.

ARTICLE IV

This Company is authorized to issue one class of shares to be designated Common Stock. The total number of shares of Common Stock the Company has authority to issue is 1,000 with par value of $0.001 per share.

ARTICLE V

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Company is expressly authorized to make, alter, amend or repeal the bylaws of the Company.

ARTICLE VI

Elections of directors need not be by written ballot unless otherwise provided in the bylaws of the Company.

ARTICLE VII

To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, no director or officer of the Company or any subsidiary of the Company shall be personally liable to the Company or its stockholders and shall otherwise be indemnified by the Company for monetary damages for breach of fiduciary duty as a director or officer of the Company, any predecessor of the Company or any subsidiary of the Company. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

The Company shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Company, any predecessor of the Company or any subsidiary of the Company or serves or served at any other enterprise as a director or officer at the request of the Company, any predecessor to the Company or any subsidiary of the Company.

Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of the Company’s Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to such amendment, repeal, or adoption of an inconsistent provision.

ARTICLE VIII

Except as provided in Article VII above, the Company reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

*    *    *

Exhibit C

Form of Contingent Value Rights Agreement

EX-2.2

Exhibit 2.2

TENDER AND SUPPORT AGREEMENT

This TENDER AND SUPPORT AGREEMENT (this “Agreement”) is entered into as of April 16, 2023, by and among Shin Nippon Biomedical Laboratories, Ltd., a Japanese corporation (“Parent”), SNBL23 Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Purchaser”), and each of the undersigned stockholders of Satsuma Pharmaceuticals, Inc., a Delaware corporation (the “Company”), listed on Annex A (each, a “Stockholder”).

W I T N E S S E T H:

WHEREAS, as of the date hereof, each Stockholder is a holder of record or the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the number of (i) shares of common stock of the Company (“Shares”) and (ii) Company Options, in each case set forth opposite such Stockholder’s name (all such Shares and Company Options set forth on Schedule A next to such Stockholder’s name, together with any Shares that are hereafter issued to or otherwise directly or indirectly acquired or beneficially owned by such Stockholder prior to the termination of this Agreement, including pursuant to any purchase right under the ESPP, exercise of Company Options, acquisition by purchase, or stock dividend, distribution, split-up, recapitalization, combination or similar transaction, collectively, the “Subject Securities”);

WHEREAS, concurrently with the execution hereof, Parent, Purchaser and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, supplemented or modified from time to time, the “Merger Agreement”), which provides, among other things, for Purchaser to commence a tender offer (the “Offer”) to acquire any (subject to the Minimum Condition) and all of the issued and outstanding Shares and, following the consummation of the Offer, the merger of Purchaser with and into the Company, with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Parent (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement; and

WHEREAS, as a condition to the willingness of Parent and Purchaser to enter into the Merger Agreement and as an inducement in consideration therefor, each Stockholder has agreed to enter into this Agreement and tender and vote such Stockholder’s Subject Securities as described herein.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement, and the other definitional and interpretative provisions set forth in Section 9.13 of the Merger Agreement shall apply hereto as if such provisions were set forth herein. In addition, for purposes of this Agreement:

(a) A Stockholder is deemed to “own” or to have acquired “ownership” of a security if such Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security.

(b) “Support Agreement Termination Date” means the earliest of (i) the date upon which the Merger Agreement is validly terminated in accordance with Article VIII of the Merger Agreement, (ii) the Effective Time, (iii) the Termination Date, (iv) the mutual written consent of Parent, Purchaser and Stockholders holding a majority of the Subject Securities and (v) the delivery of written notice from a Stockholder to Parent at any time following (a) the waiver of the Minimum Condition, or any of the conditions set forth in Section (a), (b), or (c)(vi) of Schedule I to the Merger Agreement or (b) any change in the terms of or conditions to the Offer that (I) changes the form of consideration to be paid in the Offer, (II) reduces the Offer Consideration to be paid in the Offer (by proposing to change the Per Share Price, CVR or otherwise) or decreases the number of Shares sought in the Offer (other than in each case an adjustment made pursuant to Section 1.1(c) of the Merger Agreement), (III) extends the Offer, other than in a manner required or permitted by Section 1.1(d) of the Merger Agreement, (IV) imposes conditions to the Offer, other than those set forth in Schedule I of the Merger Agreement, (V) amends, modifies or waives the Minimum Condition, (VI) amends or modifies any term of or condition to the Offer (including the conditions in Schedule I of the Merger Agreement) in any manner that has an adverse effect, or would be reasonably likely to have an adverse effect, on the Shareholders or (VII) extends or otherwise changes any time period for the performance obligations of Purchaser or Parent in a manner other than pursuant to and in accordance with the Merger Agreement.

(c) “Support Period” means the period commencing on (and including) the date of this Agreement and ending on (and including) the Support Agreement Termination Date.

(d) A Person is deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, gifts, hedges, transfers or otherwise disposes of such security or any interest in such security to any Person other than Parent or Purchaser; (ii) enters into an agreement or commitment contemplating the possible sale of, pledge of, Lien of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Parent or Purchaser; or (iii) reduces such Person’s beneficial ownership of or interest in such security.

SECTION 2. TENDER OF SUBJECT SECURITIES

2.1 Tender of Subject Securities. Unless this Agreement shall have been validly terminated in accordance with Section 8.12, such Stockholder hereby agrees to tender the Subject Securities or cause such Stockholder’s Subject Securities to be tendered, free and clear of all Liens other than Liens arising under this Agreement or applicable securities Laws, into the Offer promptly following, and in any event no later than the fifth (5^th) Business Day following the commencement of the Offer and the Offer Documents being made publicly available on the SEC’s EDGAR database (the “Deadline”). Without limiting the generality of the foregoing, such Stockholder shall (a) deliver pursuant to the terms of the Offer (i) a letter of transmittal with respect to such Stockholder’s Subject Securities complying with the terms of the Offer and the Offer Documents, (ii) a certificate (or affidavits of loss in lieu thereof and such other documentation that may be reasonably requested by the Exchange Agent) representing such Subject Securities or an “agent’s message” (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Uncertificated Shares, and (iii) all other documents or instruments required to be delivered by stockholders of the Company pursuant to the terms of the Offer and the Offer Documents or (b) instruct such Stockholder’s broker or such other Person that is the holder of record of any Subject Securities beneficially owned by such Stockholder to tender such Subject Securities pursuant to and in accordance with clause (a) of this Section 2.1 and the terms of the Offer and the Offer Documents. If such Stockholder acquires Subject Securities after the Deadline, unless this Agreement shall have been terminated in accordance with its terms or the Offer expires or is terminated or withdrawn, in each case, in accordance with the terms of the Merger Agreement, such Stockholder shall promptly tender or cause to be tendered such Subject Securities prior to the earlier of (x) three (3) Business Days following the date that the Stockholder acquires such Subject Securities and (y) the Expiration Time. Unless this Agreement shall have been terminated in accordance with its terms or the Offer expires or is terminated or withdrawn, in each case, in accordance with the terms of the Merger Agreement, such Stockholder will not withdraw the Subject Securities, or cause the Subject Securities to be withdrawn, from the Offer at any time. For purposes of this Section 2.1, Subject Securities shall not include any Company Options that are not exercised during the Support Period.

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2.2 No Obligation to Exercise. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall obligate any Stockholder to exercise any Company Option or any other right to acquire any Shares.

2.3 Return of Subject Securities. If (a) the Offer is terminated or withdrawn by Parent and Purchaser or (b) this Agreement is terminated prior to the purchase of the Subject Securities in the Offer, Parent and Purchaser shall promptly return, and shall cause any depository acting on behalf of Parent and Purchaser to return, all Subject Securities tendered by such Stockholder in the Offer to such Stockholder.

SECTION 3. VOTING OF SHARES; PROXY

3.1 Voting of Shares. For so long as Stockholder is obligated to tender any Subject Securities in accordance with Section 2.1 and such Subject Securities have not been returned to Stockholder in accordance with Section 2.3, each Stockholder hereby irrevocably and, except as expressly provided herein, unconditionally agrees that, during the Support Period, at any meeting of the stockholders of the Company, however called, including any adjournment or postponement thereof, and in any action by written consent of stockholders of the Company, unless otherwise directed in writing by Parent, Stockholder shall cause the Subject Securities (other than Company Options that are not exercised during the Support Period) to be counted as present thereat for purposes of establishing a quorum at any such meeting and to be voted:

(a) against (i) any action or agreement which is intended or would reasonably be expected to impede, delay, postpone, interfere with, nullify or prevent, in each case, in any material respect, the Offer or the Merger, including, but not limited to, any other extraordinary corporate transaction, including, a merger, acquisition, sale, consolidation, reorganization, recapitalization, extraordinary dividend or liquidation involving the Company and any Person (other than Parent, Purchaser or their Affiliates), or any other proposal of any Person (other than Parent, Purchaser or their Affiliates) to acquire the Company or all or substantially all of the assets thereof; (ii) any amendment to the certificate of incorporation or bylaws of the Company; (iii) any material change to the capitalization of the Company; (iv) any change in a majority of the directors of the Company Board; and/or (v) any action, proposal, transaction or agreement that would reasonably be expected to result in the failure of any condition set forth in Article 7 or the occurrence of any condition set forth in Schedule I of the Merger Agreement or result in a breach of any covenant, representation or warranty or any other obligation or agreement of such Stockholder under this Agreement;

(b) against any action or agreement that would reasonably be expected to result in a breach of Section 6.2 of the Merger Agreement; and

(c) against any Company Acquisition Proposal and any action in furtherance of any Company Acquisition Proposal, in each case, other than the Merger, the Merger Agreement, the transactions contemplated thereby and any action in furtherance thereof (the obligations of each Stockholder described in this Section 3.1, the “Support Obligations”).

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3.2 Grant of Proxy.

(a) During the Support Period, each Stockholder hereby shall revoke or cause to be revoked any proxies that such Stockholder has heretofore granted with respect to the Subject Securities. Solely with respect to the Support Obligations, during the Support Period, such Stockholder hereby irrevocably grants to, and appoints, Parent, the Chief Executive Officer of Parent and any designee thereof, as such Stockholder’s proxy and attorney-in-fact, for and in the name, place and stead of such Stockholder, to (i) attend any meeting of the stockholders of the Company on behalf of such Stockholder with respect to the Support Obligations, (ii) cause such Stockholder’s Subject Securities to be counted as present for purposes of establishing a quorum at any such meeting, and (iii) vote all Subject Securities, or grant or withhold a consent or approval in respect of the Subject Securities, or issue instructions to the record holder of such Stockholder’s Subject Securities to do any of the foregoing, in connection with any meeting of the stockholders of the Company or any action by written consent in lieu of a meeting of the stockholders of the Company with respect to the Support Obligations, in a manner consistent with the provisions of Section 3.1.

(b) During the Support Period, such Stockholder authorizes Parent, the Chief Executive Officer of Parent and any designee thereof, as proxy and attorney-in-fact, to substitute any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary of the Company. Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3.2 is given in connection with the execution of the Merger Agreement and granted in consideration of and as an inducement to Parent and Purchaser to enter into the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement, subject to the termination of this Agreement pursuant to Section 8.12. Each Stockholder hereby further affirms that the proxy set forth in this Section 3.2 is coupled with an interest, is intended to be irrevocable (and as such shall survive and shall not be affected by the death, incapacity, mental illness or insanity of such Stockholder, as applicable), subject, however, to its automatic termination upon the termination of this Agreement pursuant to Section 8.12. Parent agrees not to exercise the proxy granted herein for any purpose other than the purposes described in this Agreement.

3.3 Retention of Voting Power. During the Support Period, each Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in a manner inconsistent with the Support Obligations. Any grant of a proxy under this Agreement shall only entitle Parent or its designee to vote on the Support Obligations and, for the avoidance of doubt, such Stockholder shall retain at all times the right to vote all Subject Securities in such Stockholder’s sole discretion on any matters other than the Support Obligations that are presented for consideration to the Company’s stockholders generally.

SECTION 4. WAIVER OF APPRAISAL RIGHTS

4.1 Waiver. Such Stockholder hereby (a) irrevocably and unconditionally waives, and agrees not to exercise or assert any rights of appraisal, any dissenters’ rights or any similar rights relating to the Merger that such Stockholder may have by virtue of, or with respect to, the Subject Securities and (b) agrees not to commence or join in, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Purchaser, the Company or any of their respective successors (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (y) alleging breach of any fiduciary duty of any Person in connection with the negotiation and entry into the Merger Agreement.

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SECTION 5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER

Each Stockholder hereby represents and warrants (severally and not jointly) to each of Parent and Purchaser as follows:

5.1 Authorization, etc. Such Stockholder has the right, authority and legal capacity to execute and deliver this Agreement and to perform such Stockholder’s obligations hereunder. This Agreement has been executed and delivered by such Stockholder and, assuming the due authorization, execution and delivery by Parent and Purchaser, constitutes the legal, valid and binding obligations of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception. If such Stockholder is not a natural person, such Stockholder is duly organized and validly existing in good standing under the laws of the jurisdiction of its formation or organization and the execution and delivery of, and the performance of its obligations under, this Agreement are within such Stockholder’s entity powers and have been duly authorized by all necessary entity actions on the part of such Stockholder.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by such Stockholder does not, and the performance of this Agreement by such Stockholder will not: (i) conflict with or violate (A) any law, rule, regulation, order, decree or judgment applicable to such Stockholder or by which such Stockholder or any of such Stockholder’s properties is or may be bound or (B) if such Stockholder is not a natural person, the governing documents of such Stockholder; (ii) result in or constitute (with or without notice or lapse of time) any material breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of, or result (with or without notice or lapse of time) in the creation of any Lien on any of the Subject Securities pursuant to any Contract, order or other instrument binding on such Stockholder or by which such Stockholder or any of such Stockholder’s properties is or may be bound or affected, other than, in the case of clause (ii), where any such conflict, violation, breach, default or right would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement.

(b) The execution and delivery of this Agreement by such Stockholder does not, and the performance of its obligations under this Agreement by such Stockholder will not, require any filing with, nor any permit, authorization, consent or approval of, any Person, other than where the failure to make such filings or obtain such permits, authorizations, consents or approvals would not, individually or in the aggregate, prevent or delay the performance by such Stockholder of any of its obligations under this Agreement. No consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to such Stockholder in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby, other than such reports under Sections 13(d) and 16 of the Exchange Act as may be required in connection with this Agreement or where the failure to obtain such consents or make such registrations, declarations or filings would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement.

5.3 Title to Shares. Annex A attached hereto sets forth a complete and correct list of all Subject Securities (including the number of shares of Shares, Company Options) held of record and beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Stockholder as of the date of this Agreement. Such Stockholder has good and marketable title to the Subject Securities set forth opposite such Stockholders name on Annex A hereto, free and clear of any Liens.

5.4 Voting Power. Other than as provided in this Agreement, such Stockholder (together with such Stockholder’s spouse if such Stockholder is married and the Subject Securities constitute community property under applicable Law) has full voting power with respect to the Subject Securities, and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Subject Securities. None of such Stockholder’s Subject Securities are subject to any stockholders’ agreement, proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Securities, except as provided hereunder.

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5.5 Absence of Litigation. As of the date hereof, there is no Legal Proceeding pending against, or, to the knowledge of such Stockholder, threatened in writing against such Stockholder or any of such Stockholder’s properties or assets (including the Subject Securities) that would reasonably be expected to prevent or materially delay or impair the consummation by such Stockholder of the transactions contemplated by this Agreement or otherwise adversely impact such Stockholder’s ability to perform its obligations hereunder in any material respect.

5.6 Brokers. No broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Stockholder, on behalf of such Stockholder.

5.7 Reliance. Such Stockholder and its Representatives have reviewed and understand the terms of this Agreement and the Merger Agreement, and such Stockholder has had the opportunity to consult with such Stockholder’s counsel in connection with this Agreement. Such Stockholder understands and acknowledges that Parent and Purchaser are entering into the Merger Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement.

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER

Each of Parent and Purchaser hereby, jointly and severally, represents and warrants to each Stockholder as follows:

6.1 Organization.

(a) Parent (i) is duly organized or formed and validly existing pursuant to the Laws of its jurisdiction of organization or formation; and (ii) has the requisite power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties and assets.

(b) Purchaser (i) is a corporation duly organized, validly existing and in good standing pursuant to the DGCL; and (ii) has the requisite corporate power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties and assets. Purchaser has been formed solely for the purpose of engaging in the Merger and, prior to the Effective Time, Purchaser will not have engaged in any other business activities and will have incurred no material liabilities or obligations other than as contemplated by this Agreement. Parent is the sole record and beneficial stockholder of Purchaser.

6.2 Authorization, etc. Each of Parent and Purchaser has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by each of Parent and Purchaser and, assuming due authorization, execution and delivery by the Stockholders, constitutes the legal, valid and binding obligations of Parent and Purchaser, enforceable against Parent and Purchaser in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.

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6.3 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by each of Parent and Purchaser does not, and the performance of their respective obligations under this Agreement will not: (i) conflict with or violate (A) any law, rule, regulation, order, decree or judgment applicable to Parent or Purchaser or by which such either of Parent’s or Purchaser’s properties is or may be bound or (B) the governing documents of either Parent or Purchaser; (ii) result in or constitute (with or without notice or lapse of time) any material breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of any Contract, order or other instrument binding on either of Parent or Purchaser or by which either of Parent or Purchaser or any of Parent’s or Purchaser’s properties is or may be bound or affected, other than, in the case of clause (ii), where any such conflict, violation, breach, default or right would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by either of Parent or Purchaser of any of its respective obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Purchaser does not, and the performance of their respective obligations under this Agreement will not, require any filing with, nor any permit, authorization, consent or approval of, any Person, other than where the failure to make such filings or obtain such permits, authorizations, consents or approvals would not, individually or in the aggregate, prevent or delay the performance by Parent or Purchaser of any of their respective obligations under this Agreement. No consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to Parent or Purchaser in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby, other than such reports under Sections 13(d) and 16 of the Exchange Act as may be required in connection with this Agreement or where the failure to obtain such consents or make such registrations, declarations or filings would not, individually or in the aggregate, prevent or materially delay the performance by Parent or Purchaser of any of their respective obligations under this Agreement.

SECTION 7. COVENANTS OF STOCKHOLDER

Each Stockholder hereby covenants and agrees that until the termination of this Agreement:

7.1 Stockholder Information. Such Stockholder hereby consents to and authorizes Parent and Purchaser to publish and disclose in the Offer Documents, in addition to all other documents and schedules filed or furnished with the SEC, and any press release or other disclosure document that Parent or Purchaser reasonably determines to be necessary in connection with the Contemplated Transactions, such Stockholder’s identity and ownership of the Subject Securities, the existence of this Agreement and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement. Such Stockholder acknowledges that Parent and Purchaser may, in Parent’s sole discretion, file this Agreement or a form hereof with the SEC or any other Governmental Entity. Such Stockholder agrees to promptly give Parent any information it may reasonably require for the preparation of any such disclosure documents, and such Stockholder agrees to promptly notify Parent of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent that such Stockholder shall become aware that any such information shall have become false or misleading in any material respect.

7.2 Further Assurances.

(a) From time to time and without additional consideration, such Stockholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, consents and other instruments, and shall take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Agreement and as may reasonably be required to vest in Parent the power to carry out and give effect to the provisions of this Agreement.

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(b) Such Stockholder shall not enter into any tender, voting or other such agreement, or grant a proxy or power of attorney, with respect to any of the Subject Securities that is inconsistent with this Agreement or otherwise take any other action with respect to any of the Subject Securities that would restrict, limit or interfere in any material respect with the performance of any of such Stockholder’s obligations hereunder.

7.3 Transfer of Subject Securities.

(a) During the Support Period, such Stockholder shall not cause or permit any Transfer of any of the Subject Securities except as provided hereunder. Without limiting the generality of the foregoing, during the Support Period, such Stockholder shall not tender, agree to tender or permit to be tendered any of the Subject Securities in response to or otherwise in connection with any tender or exchange offer other than the Offer. Notwithstanding the foregoing, (i) such Stockholder may make Transfers of its Shares and Company Options as Parent may agree in writing in its sole discretion and (ii) such Stockholder may Transfer Shares and Company Options (and any shares of common stock underlying such Company Options) (w) to any member of such Stockholder’s immediate family, (x) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, (y) by will or under the Laws of intestacy upon the death of such Stockholder or (z) for estate planning or philanthropic purposes; provided however, that the transferee of the Transfer referred to in clauses (i) or (ii) shall have, prior to any such Transfer, agreed in a signed writing to be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement in a form reasonably acceptable to Parent and Purchaser that expressly states that Parent and Purchaser are express third-party beneficiaries thereof.

(b) Such Stockholder further hereby agrees that it will not request that the Company register the Transfer of any certificate or uncertificated interest representing any of the Subject Securities, unless such Transfer is made in compliance with this Agreement. In furtherance of this Agreement, concurrently herewith, such Stockholder shall, and hereby does authorize the Company or its counsel to, notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Subject Securities (and that this Agreement places limits on the voting and transfer of such shares).

7.4 No-Shop. Such Stockholder shall not, and shall cause its Representatives not to, directly or indirectly, take any action that is prohibited by Section 6.2 of the Merger Agreement (assuming for this purpose that such Stockholder is the “Company”, as such term is defined in the Merger Agreement). Each Stockholder agrees that it shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal. Notwithstanding anything in this Section 7.4 to the contrary, the foregoing shall not restrict any Stockholder from taking any action in its capacity as (i) a director of the Company that would otherwise be permitted under Section 6.2 of the Merger Agreement, including the ability to review and discuss any Company Acquisition Proposal, Company Superior Proposal or Company Change in Recommendation in accordance with Section 6.2 of the Merger Agreement or (ii) an officer of the Company acting on behalf of the Company with respect to an action by the Company permitted under Section 6.2 of the Merger Agreement. Such Stockholder represents and warrants that such Stockholder has reviewed the terms of Section 6.2 of the Merger Agreement with outside counsel to the Company.

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7.5 Transfer of Voting Rights. During the Support Period, each Stockholder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities, in each case that would impair such Stockholder’s obligations under Section 3 of this Agreement.

7.6 Public Announcement. Except as required by applicable Law (including without limitation the filing of a Schedule 13D with the SEC which may include this Agreement as an exhibit thereto), such Stockholder shall not issue any press release or make any public statement with respect to the transactions contemplated by this Agreement or the Merger Agreement without the approval of Parent.

7.7 Adjustments. In the event of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of shares or similar transaction with respect to the capital stock of the Company that affects the Subject Securities, the terms of this Agreement shall apply to the resulting securities.

SECTION 8. MISCELLANEOUS

8.1 Survival of Representations, Warranties and Agreements. Except as otherwise set forth herein, all representations, warranties, covenants and agreements in this Agreement, and all rights and remedies with respect thereto, shall terminate at the Effective Time.

8.2 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

8.3 Notices. Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) on the date sent by e-mail (if no automated notice of delivery failure is received by the sender) if sent prior to 8:00 p.m. Pacific Time on a Business Day, and on the next Business Day if sent after 8:00 p.m. on a Business Day or on a day other than a Business Day, (b) when delivered, if delivered personally to the intended recipient, or (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, (x) if to Parent or Purchaser, in accordance with the provisions of the Merger Agreement and (y) if to a Stockholder, to such Stockholder’s address or e-mail address set forth on a signature page hereto, or to such other address or e-mail address as such party may hereafter specify in writing for the purpose by notice to each other party hereto.

8.4 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as to reasonably effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

8.5 Entire Agreement; Amendment. This Agreement and the Merger Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. No amendment or modification of any provision of this Agreement shall be binding upon a party unless made in writing and signed by all parties. This Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of Parent, Purchaser and each Stockholder. No agreement, understanding or arrangement of any nature regarding the subject matter of this Agreement shall be deemed to exist between Parent, Purchaser and any Stockholder unless and until this Agreement has been duly and validly executed on behalf of Parent, Purchaser and each Stockholder.

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8.6 Assignment; No Third Party Beneficiaries. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Without limiting any of the restrictions set forth in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement, expressed or implied, is intended to confer on any Person, other than the parties hereto, any rights or remedies of any nature (including the right to rely upon the representations and warranties set forth herein).

8.7 Independence of Obligations; Stockholder Obligation Several and Not Joint. The covenants and obligations of such Stockholder set forth in this Agreement shall be construed as independent of any other agreement or arrangement between such Stockholder, on the one hand, and the Purchaser and Parent, on the other. The existence of any claim or cause of action by such Stockholder against the Purchaser or Parent shall not constitute a defense to the enforcement of any of such covenants or obligations against such Stockholder. The obligations of each Stockholder under this Agreement are several and not joint, and no Stockholder shall have any liability or obligation under this Agreement for any breach hereunder by any other Stockholder. Each of Parent and Purchaser, on the one hand, and each Stockholder, on the other, shall be entitled to enforce its rights under this Agreement against the other, and it shall not be necessary for any other Stockholder to be joined as an additional party in any proceeding for such purpose. No Stockholder may enforce this Agreement against any other Stockholder party hereto. A default by any Stockholder of its obligations pursuant to this Agreement shall not relieve any other Stockholder of any of its obligations to Parent and/or Purchaser under this Agreement.

8.8 Specific Performance. The parties hereto acknowledge that money damages would be an inadequate remedy for any breach of this Agreement by any party hereto, and that the obligations of the parties hereto shall be enforceable by any party hereto through injunctive or other equitable relief exclusively in accordance with Section 8.9, and any such injunction or other form of equitable relief shall be in addition to any other remedy to which any party is entitled, at law or in equity. In connection with any action for specific performance, each party hereby irrevocably waives any requirement for proof of actual damages or the securing or posting of any bond in connection with the remedies referred to in this Section 8.8.

8.9 Governing Law; Waiver of Jury Trial.

(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Each of the parties hereto hereby irrevocably submits exclusively to the jurisdiction of the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) and hereby waives, and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts, and each of the parties hereto irrevocably agrees that all claims relating to such action, suit or proceeding shall be heard and determined in such a state or federal court. The parties hereto hereby consent to and grant any such court jurisdiction over the Person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.3 or in such other manner as may be permitted by Law, shall be valid and sufficient service thereof.

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(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.9(b).

8.10 Counterparts. This Agreement and any amendments to this Agreement may be executed in one or more textually identical counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto may raise the use of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the formation of a contract, and each party hereto forever waives any such defense, except to the extent such defense relates to lack of authenticity.

8.11 Waiver. No failure on the part of Parent or Purchaser to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Parent or Purchaser in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Neither Parent nor Purchaser shall be deemed to have waived any claim available to Parent or Purchaser arising out of this Agreement, or any power, right, privilege or remedy of Parent or Purchaser under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of Parent or Purchaser, as applicable; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

8.12 Termination. This Agreement and all rights and obligations of the parties hereunder and thereunder shall terminate, and no party shall have any rights or obligations hereunder and thereunder, and this Agreement shall become null and void on, and have no further effect as of, immediately after the Support Agreement Termination Date. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that (a) nothing set forth in this Section 8.12 shall relieve any party from liability for any willful and material breach of this Agreement prior to termination hereof and (b) the provisions of Section 1 and this Section 8 shall survive any termination of this Agreement.

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8.13 Directors and Officers. This Agreement applies to Stockholder solely in such Stockholder’s capacity as a holder of Subject Securities, and not to Stockholder or any Representative of Stockholder serving as a director or officer of the Company in such capacity. Notwithstanding anything herein to the contrary, nothing herein shall in any way restrict a director or officer of the Company in the exercise of his or her fiduciary duties as a director or officer of the Company or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent or be construed to create any obligation on the part of any director or officer of the Company or any trustee or fiduciary of any employee benefit plan or trust from taking any action or omission in his or her capacity as such director, officer, trustee or fiduciary and no such actions or omissions shall be deemed a breach of this Agreement, including Section 7.4 hereof, or be construed to prohibit, limit or restrict a Stockholder from discharging such Stockholder’s duties as a director, officer, trustee or fiduciary.

8.14 No Ownership Interest. All rights, ownership and economic benefits of and relating to the Subject Securities at a given time shall remain vested in and belong to Stockholder as of such time, and Parent shall have no authority to exercise any power or authority to direct Stockholder in the voting of any of the Subject Securities, except as otherwise specifically provided herein, or in the performance of Stockholder’s duties or responsibilities as a stockholder of the Company.

[Remainder of page intentionally left blank]

12

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

SHIN NIPPON BIOMEDICAL LABORATORIES, LTD.
By:	/s/ Ryoichi Nagata
Name:	Ryoichi Nagata
Title:	Chairman & CEO
SNBL23 MERGER SUB, INC.
By:	/s/ Shinji Nitanda
Name:	Shinji Nitanda
Title:	Secretary

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Heath Lukatch

Signature

Heath Lukatch

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ John Kollins

Signature

John Kollins

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

RA Capital Healthcare Fund, L.P.
By: RA Capital Healthcare Fund GP, LLC
Its: General Partner
By:	/s/ Rajeev Shah
Name:	Rajeev Shah
Title:	Manager

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Mutya Harsch

Signature

Mutya Harsch

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Rajeev Shah

Signature

Rajeev Shah

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Thomas B. King

Signature

Thomas B. King

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Tom O’Neil

Signature

Tom O’Neil

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Tom Soloway

Signature

Tom Soloway

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Elisabeth Sandoval Little

Signature

Elisabeth Sandoval Little

Printed Name

[Tender and Support Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by such authorized persons as of the day and year first written above.

STOCKHOLDER

/s/ Braden Rippetoe

Signature

Braden Rippetoe

Printed Name

ANNEX A

[***]

EX-10.1

Exhibit 10.1

FORM OF CONTINGENT VALUE RIGHTS AGREEMENT

between

SHIN NIPPON BIOMEDICAL LABORATORIES, LTD.,

and

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as the Rights Agent

Dated as of [            ], 2023

TABLE OF CONTENTS

		Page
SECTION 1	DEFINITIONS		1
1.1	Definitions		1
SECTION 2	CONTINGENT VALUE RIGHTS		4
2.1	Authority; Issuance of CVRs; Appointment of Rights Agent.		4
2.2	Nontransferable		5
2.3	No Certificate; Registration; Registration of Transfer; Change of Address		5
2.4	Payment Procedure		5
2.5	Audit and Information Rights		7
2.6	No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent		8
2.7	Ability to Abandon the CVR		8
2.8	Withholding		8
SECTION 3	THE RIGHTS AGENT		9
3.1	Certain Duties and Responsibilities		9
3.2	Certain Rights of Rights Agent		9
3.3	Appointment of Successor		10
3.4	Acceptance of Appointment by Successor		10
SECTION 4	COVENANTS		11
4.1	List of Holders		11
4.2	Payment of CVR Payments		11
4.3	Direction and Control of Business.		11
4.4	Covenants to Comply		11
SECTION 5	AMENDMENTS		11
5.1	Amendments without Consent of CVR Holders		11
5.2	Amendments with Consent of CVR Holders		12
5.3	Execution of Amendments		12
5.4	Effect of Amendments		12
SECTION 6	REMEDIES IN THE EVENT OF BREACH		13
6.1	Action by Rights Agent		13
6.2	Limitations on Suits by CVR Holders		13
6.3	Unconditional Right of CVR Holders to Institute Certain Suits		13
6.4	Control by CVR Holders		13
6.5	Rights Agent to Give Notice of Default		13

-i-

TABLE OF CONTENTS

(continued)

		Page
SECTION 7	MISCELLANEOUS PROVISIONS		13
7.1	Entire Agreement; Counterparts		13
7.2	Notices to Rights Agent or Parent		14
7.3	Notice to CVR Holders		14
7.4	Successors and Assigns; Assignability		15
7.5	Parent Successors and Assigns		15
7.6	Benefits of Agreement		15
7.7	Governing Law		15
7.8	Exclusive Jurisdiction		15
7.9	Waiver of Jury Trial		16
7.10	Legal Holidays		16
7.11	Severability		16
7.12	Expiration		16
7.13	Construction		16
7.14	Confidentiality.		17
7.15	Further Assurances		18
7.16	Section 409A		18

ii

FORM OF CONTINGENT VALUE RIGHTS AGREEMENT

THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [            ], 2023 (this “Agreement”), is entered into between Shin Nippon Biomedical Laboratories, Ltd., a Japanese corporation (“Parent”) and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as Rights Agent (the “Rights Agent”).

RECITALS

A. Parent, Satsuma Pharmaceuticals, Inc., a Delaware corporation (“STSA”) and SNBL23 Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Purchaser”) have entered into an Agreement and Plan of Merger dated as of April 16, 2023 (as amended from time to time, the “Merger Agreement”), pursuant to which Purchaser will merge with and into STSA, with STSA being the surviving corporation (the “Acquisition”).

B. Pursuant to the Merger Agreement, prior to the consummation of the Acquisition, Parent shall create and issue contractual contingent value rights relating to the CVR Program (as defined herein) to the record holders (the “Holders”) of (i) the outstanding shares of common stock, par value $0.0001 per share, of STSA (the “Shares”), other than Excluded Shares and Dissenting Shares (such Shares, to receive CVRs (as defined herein), “CVR Shares”), and (ii) Vested Company Options which have an exercise price per Share that is less than the Per Share Price (the “Vested Company Options”) as of a record date prior to the consummation of the Acquisition, as determined by the board of directors of STSA.

C. In accordance with the Merger Agreement, one CVR (as defined herein) shall be issued for each CVR Share and Vested Company Option.

AGREEMENT

The parties to this Agreement, for and in consideration of the premises and the consummation of the transactions referred to above, intending to be legally bound, hereby mutually covenant and agree, for the equal and proportionate benefit of all Holders, as follows:

SECTION 1 DEFINITIONS

1.1 Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement. The following terms shall have the meanings ascribed to them below:

“Acting Holders” means CVR Holders of not less than fifty percent (50%) the outstanding CVRs.

“Aggregate Cumulative Net Proceeds” means the net amounts actually received by the Parent Group pursuant to a CVR Program Transaction after deducting, without duplication, (i) the Net Cash Adjustment, (ii) all actual cash costs and expenses (both internal and external) incurred by the Parent Group after April 30, 2023 for or allocable to the Development, Manufacture and Commercialization of STS101, and (iii) any royalties and other amounts paid or payable to Parent pursuant to that certain Licensing and Assignment Agreement effective as of June 30, 2016 (as amended as of the date hereof). For purposes of the foregoing, “Development, Manufacture and Commercialization” means any and all activities and processes for or associated with (A) obtaining, maintaining and expanding approvals for STS101, including preclinical testing, test method

development and stability testing, toxicology, formulation, process development, quality assurance/control development, statistical analysis, clinical studies, quality of life assessments, pharmacoeconomics, post-marketing studies, label expansion studies, regulatory affairs, and further activities relating to development or preparation of STS101 for commercialization, (B) the manufacture, production or processing of STS101 including the active pharmaceutical ingredient, delivery device and other components therein, including activities performed in support of CMC (chemistry, manufacturing and controls), formulating active pharmaceutical ingredients into the final dosage form for incorporation into STS101 packaging, sterilization, physical and regulatory labeling and other finishing activities, quality control and assurance testing, in each case with respect to STS101, or (C) the promotion, sales, marketing, and distribution for sale of STS101 (including importing, exporting, transporting, customs clearance, warehousing, invoicing, handling, and delivering STS101 to customers), sales force efforts, detailing, advertising, market research, market access (including price and reimbursement activities), marketing, and sales (including receiving, accepting, and filling orders) and distribution for sale, and all activities directed to obtaining pricing and reimbursement approvals for STS101 any and all medical education activities, including medical support planning, health economics and outcomes, publications and pharmacovigilance for STS101; and, in each case (A), (B) and (C), together with all interactions with regulatory and other governmental authorities and other regulatory affairs in support of or related to any of the foregoing.

“Approval Date” means the date the FDA provides notice of approval of the STS101 NDA.

“Board of Directors” means the board of directors of Parent.

“Board Resolution” means a copy of a resolution certified by a duly authorized officer of Parent to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Rights Agent.

“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in San Francisco, California or New York, New York are authorized or obligated by law or executive order to remain closed.

“CVR” means the rights of CVR Holders to receive CVR Payment Amounts pursuant to the Merger Agreement and this Agreement.

“CVR Holder” means a Person in whose name a CVR is registered in the CVR Register, who shall initially be the Holders.

“CVR Payment” means a payment in cash of any CVR Payment Amount hereunder.

“CVR Payment Amounts” (and each a “CVR Payment Amount”) means the aggregate amounts listed in Column B of Exhibit A to be paid to CVR Holders, which payment obligation is subject to and contingent upon the achievement of the Aggregate Cumulative Net Proceeds listed in Column A of Exhibit A, in each case, with respect to such achievement occurring prior to the CVR Program Outside Date (the date of each such achievement the “Threshold Achievement Date”).

“CVR Program” means the STS101 program controlled by STSA prior to the Closing Date, and the Parent Group after the Closing Date.

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“CVR Program Outside Date” means the fifth anniversary of the first date when the Aggregate Cumulative Net Proceeds are equal to or greater than zero.

“CVR Program Transaction” means any transaction with a third party by the Parent Group for (a) the sale, license or other grant of rights with respect to CVR Program or any part thereof or (b) sale or disposition of all or substantially all of the business or assets of STSA (that exists immediately prior to the Closing) or (c) sale or disposition of all or substantially all of the equity of STSA or Purchaser.

“CVR Register” has the meaning set forth in Section 2.3(b).

“Event of Default” means (i) default by Parent in the payment of the CVR Payment after a period of ten (10) Business Days after such CVR Payment shall become due and payable; (ii) material default in the performance, or breach in any material respect, of any covenant or warranty of Parent hereunder, and continued default or breach for a period of ninety (90) days after written notice, or (iii) a court has entered a decree or order for relief in respect of Parent in an involuntary case under any applicable bankruptcy, insolvency or other similar Law, and such decree or order shall remain unstayed and in effect for a period of ninety (90) consecutive days, or Parent has commenced a voluntary case under any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect.

“FDA” means the U.S. Food and Drug Administration.

“Financial Expert” means an independent certified public accounting firm of nationally recognized standing designated either (a) jointly by the Acting Holders and Parent, or (b) if such parties fail to make a designation, jointly by an independent public accounting firm selected by Parent and an independent public accounting firm selected by the Acting Holders.

“Net Cash Adjustment” means two-million five-hundred thousand dollars ($2,500,000), plus the Net Cash Deficit, minus the Net Cash Surplus.

“Net Cash Amount” means the “Company Net Cash” as determined pursuant to the Merger Agreement.

“Net Cash Deficit” means the amount, if any, by which the Net Cash Target is greater than the Net Cash Amount.

“Net Cash Surplus” means the amount, if any, by which the Net Cash Amount is greater than the Net Cash Target.

“Net Cash Target” means $27,289,999.

“Parent Group” means any of Parent or any of its Affiliates (or any of their respective designees, successors or assignees, including any successor-in-interest or assignee with respect to rights under a CVR Program).

“Permitted Transfer” means: a transfer of CVRs (a) on death of the CVR Holder by will or intestacy; (b) transfer by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries of the CVR Holder upon the death of the trustee, (c) pursuant to a court order (including in connection with bankruptcy or liquidation); (d) made by operation of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; (e) in the case of CVRs payable to a nominee, from a nominee to a beneficial owner; (f) with the written consent of Parent; or (g) as provided in Section 2.7.

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“Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.

“STS101” means that proprietary drug-device combination candidate being developed for acute treatment of migraines by and on behalf of STSA prior to the Closing Date and comprising a formulation of dihydroergotamine mesylate (DHE) with a carrier together with a nasal delivery device.

“STS101 NDA” means that certain new drug application for STS101 filed with the FDA on March 17, 2023 (together with any supplements thereto).

SECTION 2 CONTINGENT VALUE RIGHTS

2.1 Authority; Issuance of CVRs; Appointment of Rights Agent.

(a) Parent has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Parent and no other corporate proceedings on the part of Parent are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Parent and, assuming the due authorization, execution and delivery by the Rights Agent, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception. Neither the execution and delivery of this Agreement nor the performance by Parent of its obligations hereunder or the consummation of the transactions contemplated hereby will (i) conflict with, or result in any violation of any provision of the certificate of incorporation, bylaws and other similar organizational documents of Parent, or (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under, any loan or credit agreement, note, mortgage, indenture, lease, or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Parent or its properties or assets which violation, in the case of clause (ii), individually or in the aggregate, would reasonably be expected to be material to Parent. No consent, approval, order or authorization of, or registration, declaration, notice or filing with, any Governmental Entity is required by or with respect to Parent in connection with the execution and delivery of this Agreement by the Parent or the consummation by Parent of the transactions contemplated hereby.

(b) One CVR will be issued with respect to each CVR Share and Vested Company Option in accordance with the terms of the Merger Agreement.

(c) Parent hereby appoints AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC as the Rights Agent to act as rights agent for Parent in accordance with the instructions hereinafter set forth in this Agreement, and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC hereby accepts such appointment.

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2.2 Nontransferable. The CVRs shall not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer. Any purported transfer of a CVR other than in a Permitted Transfer shall be null and void ab initio.

2.3 No Certificate; Registration; Registration of Transfer; Change of Address.

(a) The CVRs will be issued in book-entry form only and will not be evidenced by a certificate or other instrument.

(b) The Rights Agent will keep an up-to-date register (the “CVR Register”) for the registration of the CVRs and Permitted Transfers of the CVRs as herein provided.

(c) Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument or instruments of transfer and any other requested documentation in a form reasonably satisfactory to the Rights Agent, duly executed by the registered CVR Holder or CVR Holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, including the evidence of authority of the party presenting the CVR for transfer, which authority may include, if applicable, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association. A request for a transfer of a CVR must be accompanied by such documentation establishing that the transfer is a Permitted Transfer as may be reasonably requested by the Rights Agent, if appropriate. Upon receipt of such written request and materials, the Rights Agent will, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise complies with the other terms and conditions herein, register the transfer of the CVRs in the CVR Register. All duly transferred CVRs registered in the CVR Register will be the valid obligations of Parent, evidencing the same right and will entitle the transferee to the same benefits and rights under this Agreement as those previously held by the transferor. No transfer of a CVR will be valid until registered in the CVR Register, and any transfer not duly registered in the CVR Register will be void and invalid. All costs and expenses related to any transfer or assignment of the CVRs (including the cost of any transfer tax) will be the responsibility of the transferor; provided that the Rights Agent shall not impose a service charge for any registration of a Permitted Transfer.

(d) A CVR Holder (or an authorized representative thereof) may make a request to the Rights Agent to change such CVR Holder’s address of record in the CVR Register. Upon receipt of such request, the Rights Agent shall promptly record the change of address in the CVR Register. The written request must be duly executed by the CVR Holder and conform to such other reasonable requirements as the Rights Agent may from time to time establish.

2.4 Payment Procedure.

(a) Within 60 days following the end of each Parent fiscal year in which each Threshold Achievement Date has occurred, Parent will deliver to the Rights Agent a certificate (each, a “Reporting Certificate”) certifying that the CVR Holders are entitled to receive the corresponding CVR Payment(s) and setting forth, in reasonable detail, Parent’s calculation of the CVR Payment Amount, together with reasonable supporting documentation for such calculation. Within 60 days following the end of each Parent fiscal year that begins prior to the CVR Program Outside Date in which a Threshold Achievement Date has not occurred, Parent will deliver to the Rights Agent a Reporting Certificate certifying that the CVR Holders are not entitled to receive any CVR Payment(s) and setting forth, in reasonable detail, Parent’s calculation of the Aggregate Cumulative Net Proceeds as of the end of such fiscal year, together with reasonable supporting documentation for such calculation.

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(b) If (a) no CVR Program Transaction has been entered into prior to the date that is eighteen (18) months after the Approval Date, or (b) if the Aggregate Cumulative Net Proceeds fail to exceed twenty-five million dollars ($25,000,000) prior to the CVR Program Outside Date, then, within forty-five (45) days after the earlier to occur of (a) and (b), Parent will deliver to the Rights Agent a certificate (the “CVR Program Transaction Non-Achievement Certificate” and, together with the Reporting Certificate(s), the “Certificates”), stating that no CVR Payment Amount is due. The Rights Agent shall deliver each certificate to each Holder at its registered address within three (3) Business Days of its receipt thereof.

(c) The Acting Holders may object to any determination or calculation set forth in a Certificate by delivery of a written notice thereof to the Parent setting forth in reasonable detail such objection, together with reasonable supporting documentation (an “Objection Notice”), within forty-five (45) days following receipt of the applicable Certificate from Parent (the “Objection Period”). If the Acting Holders do not submit an Objection Notice during the Objection Period, Parent’s determination of the non-existence of a CVR Program Transaction, or the calculation of the CVR Payment Amount, as the case may be and as reflected in the applicable Certificate, shall be final and binding on all parties. If the Acting Holders timely deliver to Parent an Objection Notice, Parent and the Acting Holders shall attempt in good faith to resolve such matters within thirty (30) days after receipt of the same by Parent, and if unable to do so, Parent and the Acting Holders (on behalf of the CVR Holders) shall jointly engage the Financial Expert, whose appointment shall be final, conclusive, and binding on the parties and the CVR Holders. The Financial Expert will, under the terms of its engagement, be appointed to serve as an expert and not an arbitrator, be required to render its written decision with respect to such disputed items and amounts within thirty (30) Business Days from the date of such appointment. The Financial Expert shall deliver to the parties a written report setting forth its adjustments, if any, to the CVR Payment Amount based on the Financial Expert’s determination, solely with respect to the disputed items and amounts in accordance with this Agreement, and such report shall include the calculations supporting such adjustments; provided, that for each item set forth in the Objection Notice, the Financial Expert shall assign a value for each such item no greater than the higher amount, and no less than the lower amount, calculated or set forth in the Reporting Certificate or the Objection Notice with respect to such item, as the case may be. The Financial Expert shall have no power to amend or supplement the terms of this Agreement or the Merger Agreement or act ex aequo et bono. The Financial Expert’s report shall be final, conclusive, and binding on the parties and the CVR Holders, shall not be subject to further review by any court, and no party or CVR Holder nor any of their respective Affiliates or Representatives may seek recourse to any courts, other tribunals or otherwise, other than to enforce the determination of the Financial Expert. The fees and expenses of the Financial Expert shall be allocated between Parent and the CVR Holders (by deduction from the current or of future CVR Payment Amounts) in the same proportion that the disputed amount to the CVR Payment Amount that was unsuccessfully disputed by (as finally determined by the Financial Expert) bears to the total disputed amount of the CVR Payment Amount. The date on which a CVR Payment Amount becomes final and binding on the parties is referred to herein as a “Payment Determination Date.”

(d) Parent shall, within thirty (30) days following (i) the date of the applicable Certificate, or (ii) if an Objection Notice is issued pursuant to Section 2.4(c), following the corresponding Payment Determination Date (as applicable, a “CVR Payment Date”), pay the aggregate CVR Payment Amount for any non-Employee CVR Holders through the Rights Agent (for the account of the non-Employee CVR Holders), by wire transfer of immediately available funds to such account as may be designated by the Rights Agent. The Rights Agent will distribute the CVR Payment Amount to the non-Employee CVR Holders (each non-Employee CVR Holder being entitled to receive its pro rata share of such CVR Payment Amount, as applicable,

6

based on the number of CVRs held by such non-Employee CVR Holder as reflected on the CVR Register on the date of the Reporting Certificate or the date of final determination pursuant to this Agreement, as applicable) (i) by check mailed to the address of each such respective non-Employee CVR Holder as reflected in the CVR Register as of the close of business on the last Business Day before such CVR Payment Date, or, (ii) with respect to any non-Employee CVR Holder who has provided the Rights Agent with wire transfer instructions meeting the Rights Agent’s requirements, by wire transfer of immediately available funds to such account.

(e) Following a CVR Payment Date, subject to Section 7.16, Parent shall pay the CVR Payment Amount to the CVR Holders who are employees or former employees of STSA (an “Employee CVR Holder”) through payroll, less applicable withholdings and deductions, each Employee CVR Holder being entitled to receive its pro rata share of such CVR Payment Amount, as applicable, based on the number of CVRs held by such Employee CVR Holder on the applicable Payment Determination Date.

(f) If Parent issues a CVR Program Transaction Non-Achievement Certificate pursuant to Section 2.4(b) and no Objection Notice has been timely delivered to Parent in response to such CVR Program Transaction Non-Achievement Certificate within the Objection Period, then the CVR Holders will have no right to receive a CVR Payment, and Parent and the Rights Agent will have no further obligations with respect to any CVR Payment.

(g) Parent will promptly furnish to the Rights Agent all information and documentation in connection with this Agreement and in the possession of Parent and relating to the CVRs, any CVR Program Transaction or any CVR Payment(s) that the Rights Agent may reasonably request on behalf of the Holders in order to perform under this Agreement.

(h) Parent acknowledges that the bank accounts maintained by the Rights Agent in connection with the services provided under this Agreement will be in the Rights Agent’s name and that the Rights Agent may receive investment earnings in connection with the investment at the Rights Agent’s risk and for its benefit.

(i) Notwithstanding any other provisions of this Agreement, any portion of the CVR Payment paid by Parent to the Rights Agent that remains unclaimed as of the first anniversary of the expiration of this Agreement pursuant to Section 7.12 shall, to the extent permitted by law, be delivered to Parent or its designee. The Holders shall thereafter look only to Parent for delivery of any owed CVR Payments.

(j) Neither Parent, the Rights Agent nor any of their Affiliates shall be liable to any CVR Holder for any payments delivered to a public official pursuant to any abandoned property, escheat law or other similar Law. Any amounts remaining unclaimed by such CVR Holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall be delivered to Parent or its designee. The Holders shall thereafter look only to Parent for delivery of any owed CVR Payments.

2.5 Audit and Information Rights.

(a) Prior to the expiration of this Agreement, and in addition to and without limiting any rights of the Holders pursuant to Section 2.4, Parent shall prepare and deliver to the Rights Agent, simultaneously with its delivery of each Certificate, a written report, in such form as Parent shall reasonably determine, summarizing the performance of, and significant activity related to, the CVR Program Transactions (including status updates on negotiations related to potential CVR Program Transactions not yet executed and the conduct of any development activities pertaining to the CVR Program following the Closing Date) and any Aggregate Cumulative Net Proceeds paid or payable (including expectations around upcoming payments and the timing thereof).

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(b) In connection with any Objection Notice, Parent shall provide the Financial Expert with reasonable access during normal business hours and upon reasonable advance request to the books and records of Parent Group to the extent necessary to verify (i) whether a CVR Program Transaction occurred prior to the date that is eighteen (18) months after the Approval Date or (ii) Parent’s calculation of a CVR Payment Amount. Further, subject to not less than five (5) Business Days advance written notice from the Acting Holders, Parent shall permit the Financial Expert, acting as agent of the Acting Holders, to have access during normal business hours to the books and records of the Parent Group as may be reasonably necessary to audit the calculation of any CVR Payment Amount or the calculation of the amount of Aggregate Cumulative Net Proceeds.

(c) Prior to the expiration of this Agreement, upon not less than twenty (20) Business Days’ written request by the Acting Holders, but in no event more than once per year, Parent shall meet at reasonable times during normal business hours with the Acting Holders to discuss the content of any Reporting Certificate. Parent agrees to maintain (and shall cause all other Persons included in Parent Group to maintain) true, complete and accurate books and records in sufficient detail to enable the Holders and the Financial Expert to determine the CVR Payment Amounts and the amount of Aggregate Cumulative Net Proceeds.

2.6 No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent.

(a) The CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to any CVR Holder, except as specifically provided herein.

(b) The CVRs shall not represent any equity or ownership interest in Parent or in any constituent company to the Acquisition. The rights of the CVR Holders and the obligations of Parent are contract rights limited to those expressly set forth in this Agreement, and such CVR Holders’ sole right to receive property hereunder is the right to receive cash from Parent, if any, through the Rights Agent in accordance with the terms hereof. It is hereby acknowledged and agreed that a CVR shall not constitute a security of Parent.

2.7 Ability to Abandon the CVR. A CVR Holder may at any time at its option abandon all of its remaining rights in a CVR by transferring the CVR to Parent or any of its successors or assigns without consideration therefor, and Parent shall promptly notify the Rights Agent in writing of such transfer. Nothing in this Section 2.7 is intended to prohibit Parent or any of its Affiliates from offering to acquire CVRs for consideration in its sole discretion. Any CVRs acquired by Parent or any of its Affiliates shall be automatically deemed extinguished and no longer outstanding.

2.8 Withholding. Each of Parent Group, the Rights Agent, and any other Person who has any obligation to deduct or withhold from any consideration payable pursuant to this Agreement shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the amounts otherwise payable pursuant to this Agreement such amounts as it determines are required by applicable Law to be deducted and withheld. To the extent that amounts are so deducted or withheld and remitted to the appropriate Governmental Entity in accordance with applicable Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

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SECTION 3 THE RIGHTS AGENT¹

3.1 Certain Duties and Responsibilities. The Rights Agent shall not have any liability for any actions taken or not taken in connection with this Agreement, except to the extent of its willful or intentional misconduct, bad faith, gross negligence or fraud. If an Event of Default has occurred (which has not been cured or waived), the Rights Agent may in its discretion proceed to protect and enforce the rights vested in it by this Agreement by commencing a Legal Proceeding; provided that the Rights Agent shall provide reasonably concurrent notice of such commencement. For the avoidance of doubt, any legal proceeding commenced in accordance with this Section 3.1 shall be subject to the provisions of Section 7.8.

3.2 Certain Rights of Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent. In addition:

(a) the Rights Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may, in the absence of bad faith, gross negligence, willful or intentional misconduct or fraud on its part, rely upon a certificate signed by an authorized officer of Parent, in his or her capacity as such an officer, and delivered to the Rights Agent;

(c) the Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon after good faith consultation with Parent;

(d) in the absence of a duty specifically set forth in this Agreement, the permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;

(e) the Rights Agent shall not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the premises;

(f) the Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent with respect to, any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by Parent only;

(g) Parent agrees to indemnify Rights Agent for, and hold Rights Agent harmless against, any loss, liability, claim, demands, suits or expense arising out of or in connection with Rights Agent’s duties under this Agreement, including the reasonable and documented out-of-pocket costs and expenses of defending Rights Agent against any claims, charges, demands, suits or loss, unless such loss shall have been determined by a court of competent jurisdiction to be a result of Rights Agent’s gross negligence, bad faith, willful or intentional misconduct or fraud; and

¹  Subject to the review of the Rights Agent.

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(h) Parent agrees (i) to pay the reasonable and documented out-of-pocket fees and expenses of the Rights Agent in connection with this Agreement, as agreed upon in writing by Rights Agent and Parent on or prior to the date hereof, and (ii) to reimburse the Rights Agent for all taxes and governmental charges, reasonable and documented out-of-pocket expenses and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than taxes in respect of fees of the Rights Agent or measured by reference to the Rights Agent’s net or gross income or any similar measure). The Rights Agent shall also be entitled to reimbursement from Parent for all reasonable, documented and necessary out-of-pocket expenses paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder.

3.3 Appointment of Successor. The Rights Agent may resign at any time by giving written notice thereof to Parent and the CVR Holders specifying a date when such resignation shall take effect, which notice shall be sent at least 60 days prior to the date so specified. Parent shall have the right to remove the Rights Agent at any time by a Board Resolution specifying a date when such removal shall take effect. Notice of such removal shall be given by Parent to Rights Agent, which notice shall be sent at least 60 days prior to the date so specified.

(a) If the Rights Agent shall resign, be removed or become incapable of acting, Parent shall promptly appoint a qualified successor Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent. Notwithstanding the foregoing, if Parent fails to make such appointment within a period of sixty (60) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent, then any CVR Holder may apply to any court of competent jurisdiction for the appointment of a new Rights Agent.

(b) Parent shall give notice of each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail, postage prepaid, to the CVR Holders as their names and addresses appear in the CVR Register. Each notice shall include the name and address of the successor Rights Agent. If Parent fails to send such notice within ten (10) days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense of Parent. Failure to give any notice provided for in this Section 3.3, however, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.

(c) Notwithstanding anything to the contrary in this Section 3.3, unless consented to in writing by the Acting Holders, Parent shall not appoint as a successor Rights Agent any Person that is not a stock transfer agent of national reputation or the corporate trust department of a commercial bank.

3.4 Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Rights Agent hereunder; but, on request of Parent or the successor Rights Agent, such retiring Rights Agent shall execute and deliver an instrument transferring to such successor Rights Agent all the rights, powers and trusts of the retiring Rights Agent hereunder.

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SECTION 4 COVENANTS

4.1 List of Holders. Parent shall furnish or cause to be furnished to the Rights Agent in such form as Parent receives from Parent’s transfer agent (or other agent performing similar services for Parent), the names and addresses of the Holders within thirty (30) Business Days of the Closing Date.

4.2 Payment of CVR Payments. Parent shall duly and promptly deposit with the Rights Agent for payment to each CVR Holder the CVR Payment, if any, in the manner provided for in Section 2.4 and in accordance with the terms of this Agreement.

4.3 Direction and Control of Business. Subject to Section 4.4, Parent and its Affiliates shall have the right, in their sole and absolute discretion, to direct and control the research, development, commercialization and other exploitation of the CVR Program in all respects, including any determination to test, develop, pursue, market, make any regulatory filings or seek regulatory approval with respect to, commence or continue any sale of, or make any other strategic decisions affecting, the CVR Program. Notwithstanding the foregoing or anything to the contrary herein, (a) nothing in this Agreement shall be construed as requiring Parent or any of its Affiliates to seek regulatory approval of the CVR Program or commence any sales of the CVR Program in any jurisdiction and any determination by Parent or any of its Affiliates with respect to the foregoing shall be made in Parent’s or its Affiliates’ sole and absolute discretion; and (b) the Rights Agent acknowledges and agrees, on behalf of itself and each Holder, that CVR Program Transactions and CVR Payments may not be achieved prior to the date that is eighteen (18) months after the Approval Date or CVR Program Outside Date, respectively, without any breach of this Agreement by Parent or any of its Affiliates.

4.4 Covenants to Comply.

(a) Parent shall cause its Affiliates and, to the extent applicable, other Persons included in Parent Group to comply with the terms of this Agreement and shall be responsible to any breaches of this Agreement which are caused by any such Person included in Parent Group.

(b) Prior to the expiration of this Agreement in accordance with its terms, Parent and its Affiliates shall not (i) dispose of and/or commercialize or monetize the CVR Program in any manner except pursuant to a CVR Program Transaction, or (ii) take an action with the intention of negatively impacting the CVR Program or a CVR Program Transaction; provided that nothing herein shall prevent Parent or its Affiliates from terminating the CVR Program in whole or in part, following a good faith determination by the Parent Board that it is no longer reasonable to continue the CVR Program.

SECTION 5 AMENDMENTS

5.1 Amendments without Consent of CVR Holders.

(a) Subject to Section 5.3, whether with or without the consent of any CVR Holders, the Rights Agent and Parent, when authorized by a Board Resolution, at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:

(i) to evidence the succession of another Person as a successor Rights Agent and the assumption by any successor of the covenants and obligations of the Rights Agent herein;

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(ii) to add to the covenants of Parent such further covenants, restrictions, conditions or provisions as the Board of Directors and the Rights Agent shall consider to be for the protection or benefit of the CVR Holders; provided that, in each case, such provisions shall not adversely affect the interests of the CVR Holders;

(iii) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement; provided that, in each case, such provisions shall not adversely affect the interests of the CVR Holders;

(iv) as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act or the Exchange Act or any applicable state securities or “blue sky” laws; provided that, such provisions shall not adversely affect the interests of the CVR Holders; or

(v) any other amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, unless such addition, elimination or change is adverse to the interests of the CVR Holders.

(b) Promptly after the execution by Parent and the Rights Agent of any amendment pursuant to the provisions of Section 5.1(a), Parent shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the CVR Holders at their addresses as they shall appear on the CVR Register, setting forth (i) in general terms the substance of such amendment and (ii) the text of such amendment.

5.2 Amendments with Consent of CVR Holders.

(a) Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the CVR Holders), with the written consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the CVR Holders, Parent, when authorized by a Board Resolution, and the Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, even if such addition, elimination or change is adverse to the interest of the CVR Holders.

(b) Promptly after the execution by Parent and the Rights Agent of any amendment pursuant to the provisions of Section 5.2(a), Parent shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the CVR Holders at their addresses as they shall appear on the CVR Register, setting forth in (i) general terms the substance of such amendment and (ii) the text of such amendment.

5.3 Execution of Amendments. As a condition precedent to the execution of any amendment permitted by this SECTION 5, the Rights Agent shall be entitled to receive, and shall be fully protected in relying upon, an opinion of counsel selected by Parent stating that the execution of such amendment is authorized or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, privileges, covenants or duties under this Agreement or otherwise. No supplement or amendment to this Agreement shall be effective unless duly executed by the Rights Agent.

5.4 Effect of Amendments. Upon the execution of any amendment under this SECTION 5, this Agreement shall be modified in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every CVR Holder shall be bound thereby.

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SECTION 6 REMEDIES IN THE EVENT OF BREACH

6.1 Action by Rights Agent. If an Event of Default occurs and is continuing or uncured, then the Rights Agent, or either party upon the written request of the Acting Holders, may bring legal action to protect the rights of the CVR Holders, including action for payment of amounts due, for damages or for injunctive relief. In any such action, the Rights Agent shall be deemed to represent all CVR Holders. Amounts collected by the Rights Agent in any such suit shall be paid first to reimburse the legal fees and other costs and expenses incurred by the Rights Agent and the balance shall be distributed to the CVR Holders.

6.2 Limitations on Suits by CVR Holders. Subject to the rights of the CVR Holders under Section 6.3, no CVR Holder shall have any right under this Agreement to commence proceedings under or with respect to this Agreement, or for the appointment of a trustee, receiver, liquidator, custodian or similar official, for any other remedy hereunder, provided that Acting Holders shall have the right to institute an action to enforce this Agreement if (i) such Acting Holders shall have given the Rights Agent written notice of an Event of Default that is continuing or uncured, made written request upon the Rights Agent to institute such action in its own name as Rights Agent, offered to the Rights Agent such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred in such action, (ii) the Rights Agent for thirty (30) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action, and (iii) no direction inconsistent with such written request shall have been given to the Rights Agent pursuant to Section 6.5. No CVR Holder shall have the right to prejudice the rights of other CVR Holders or to obtain or seek priority over any other CVR Holder or to enforce any right under this Agreement except for the ratable and common benefit of all CVR Holders.

6.3 Unconditional Right of CVR Holders to Institute Certain Suits. Notwithstanding any other provision in this Agreement, the right of any CVR Holder to receive or enforce payment of the amounts payable in respect of the CVR Holder’s CVRs shall not be impaired without the consent of such CVR Holder.

6.4 Control by CVR Holders. The Acting Holders shall have the right to direct the conduct of any action for any remedy available to the Rights Agent, or exercising any power conferred on the Rights Agent by this Agreement; provided that the Rights Agent shall have the right to decline to follow any such direction if the Rights Agent, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Rights Agent, in good faith by its board of directors, the executive committee, or a committee of directors or responsible officers of the Rights Agent, shall determine that the action or proceedings so directed would involve the Rights Agent in personal liability or if the Rights Agent in good faith shall determine that the actions or forbearances specified in directions would unduly prejudice the interests of CVR Holders not joining in the giving of such directions.

6.5 Rights Agent to Give Notice of Default. The Rights Agent shall give CVR Holders notice by mail of defaults which have occurred and are continuing or uncured for more than ninety (90) days.

SECTION 7 MISCELLANEOUS PROVISIONS

7.1 Entire Agreement; Counterparts. This Agreement and the Merger Agreement constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties hereto with respect to the subject matter hereof and thereof. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.

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7.2 Notices to Rights Agent or Parent. Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) on the date sent by e-mail (if no automated notice of delivery failure is received by the sender) if sent prior to 8:00 p.m. Pacific Time on a Business Day, and on the next Business Day if sent after 8:00 p.m. on a Business Day or on a day other than a Business Day, (b) when delivered, if delivered personally to the intended recipient, or (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a party at the following address for such party:

if to Parent:

Shin Nippon Biomedical Laboratories, Ltd.

2438 Miyanoura-cho, Kagoshima-shi, Kagoshima

891-1394, Japan

Attention: Shinji Nitanda

Email: [***]

with copies (that shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati P.C.

One Market, Spear Tower, Suite 3300

San Francisco, California 94105

Attention: Robert Ishii

Email: [***]

Wilson Sonsini Goodrich & Rosati P.C.

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

Attention: Ian B. Edvalson

Email: [***]

if to the Rights Agent:

American Stock Transfer & Trust Company, LLC

6201 15^th Avenue

Brooklyn, New York 11219

Attention: Relationship Management

7.3 Notice to CVR Holders. Notices, requests, instructions or other documents to be given under this Agreement to CVR Holders shall be in writing and shall be deemed given (unless otherwise herein expressly provided) when mailed, first-class postage prepaid, to each CVR Holder affected by such event, at his, her or its address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to CVR Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular CVR Holder shall affect the sufficiency of such notice with respect to other CVR Holders.

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7.4 Successors and Assigns; Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective permitted successors and assigns.

7.5 Parent Successors and Assigns. Parent may assign or otherwise transfer any or all of its rights, interests and obligations hereunder (a) in its sole discretion and without the consent of any other Person, (i) to one or more direct or indirect wholly-owned subsidiaries of Parent or (ii) to any purchaser, licensee or sublicensee of all or substantially all of the rights controlled by Parent (or the applicable Person included in Parent Group) to the CVR Program that is a company in the pharmaceutical industry or (b) otherwise with the prior written consent of the Acting Holders, to any other Person (each, an “Assignee”); provided that the Assignee agrees in a writing delivered to Rights Agent that Assignee shall assume and be bound by all of the terms and conditions of this Agreement. This Agreement will be binding upon, inure to the benefit of and be enforceable by Parent’s successors and each Assignee. Parent (and the other assignor) shall agree to remain liable for the performance by each Assignee (and such other assignor, if applicable) of all obligations of Parent hereunder. Subject to compliance with the requirements set forth in this Section 7.5 relating to assignments or other transfers, this Agreement shall not restrict Parent Group’s ability to merge or consolidate with, or sell, issue, license or dispose of its stock or other equity interests or assets to, any other Person, or spin-off or split-off. Each of Parent’s and its Affiliate’s respective successors and each Assignee shall, by a supplemental contingent consideration payment agreement or other acknowledgement executed and delivered to the Rights Agent, expressly assume the due and punctual payment of the CVR Payments and the due and punctual performance of every duty, obligation, agreement and covenant of this Agreement on the part of Parent to be performed or observed (or to be observed) by Parent. The Rights Agent may not assign this Agreement without Parent’s prior written consent. Any attempted assignment, transfer or delegation of this Agreement or any such rights in violation of this Section 7.5 shall be void and of no effect.

7.6 Benefits of Agreement. Nothing in this Agreement, express or implied, shall give to any Person (other than the parties hereto, the CVR Holders and their permitted successors and assigns hereunder) any benefit or any legal or equitable right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto, the CVR Holders and their permitted successors and assigns. The rights of CVR Holders and their permitted successors and assigns hereunder are limited to those expressly provided in this Agreement and the Merger Agreement. Notwithstanding anything to the contrary contained herein, any CVR Holder or CVR Holder’s successor or assign pursuant to a Permitted Transfer may agree to renounce, in whole or in part, its rights under this Agreement by written notice to the Rights Agent and Parent, which notice, if given, shall be irrevocable.

7.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

7.8 Exclusive Jurisdiction. The parties hereto agree that any action seeking to enforce any provision of, or based on any matter arising out of or in connection with this Agreement, including the CVRs, shall be brought and determined exclusively in the Delaware Court of Chancery or, if the Court of Chancery lacks jurisdiction over such dispute, then the state or federal courts of applicable jurisdiction located in Wilmington, Delaware. The parties hereto hereby (i) irrevocably submit to the exclusive personal jurisdiction of such courts for the purpose of any action arising out of or relating to this Agreement, including the CVRs, brought by any party hereto, (ii) agree that all claims in respect of such action or proceeding shall be heard and determined exclusively in such courts, and (iii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject to the personal jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the CVRs may not be enforced in or by any of the above-named courts.

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7.9 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

7.10 Legal Holidays. In the event that any CVR Payment Date shall not be a Business Day, then, notwithstanding any provision of this Agreement to the contrary, any payment required to be made in respect of the CVRs on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the CVR Payment Date.

7.11 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

7.12 Expiration. This Agreement shall expire ab initio and be of no further force or effect, the parties hereto shall have no liability hereunder, and no further payments shall be required to be made, upon the earlier to occur of (a) the expiration of the Objection Period associated with the CVR Program Transaction Non-Achievement Certificate, if a CVR Program Transaction Non-Achievement Notice is issued in accordance with Section 2.4(b) and no Objection Notice with respect thereto is issued during the applicable Objection Period in accordance with Section 2.4(c), (b) the final termination of the last agreement by which any Aggregate Cumulative Net Proceeds may be payable to Parent related to a CVR Program Transaction, (c) the Approval Date does not occur on or before the date that is eighteen (18) months after this Agreement and (d) the tenth anniversary of the date of this Agreement. The expiration of this Agreement shall not affect or limit the right (i) to receive any and all CVR Payments under Section 2.4 to the extent earned prior to expiration of this Agreement, or (ii) to inspect or receive payment set forth in SECTION 6, and such provisions shall survive the expiration of this Agreement.

7.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

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(c) The bold-faced headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

7.14 Confidentiality.

(a) “Confidential Information” shall mean any and all technical or business information relating to a party, including, without limitation, financial, marketing and product development information, stockholder information (including any non-public information of such stockholder), and proprietary information that is disclosed or otherwise becomes known to the other party or its Affiliates, agents or representatives before or during the term of this Agreement. Confidential Information shall not include any information that is: (a) already known to the other party or its Affiliates at the time of the disclosure, provided that such prior knowledge can be substantiated by the written records of such party; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the other party; (c) subsequently disclosed to the other party or its Affiliates on a non-confidential basis by a third party not having a confidential relationship with the owner and which rightfully acquired such information; or (d) independently developed by one party without access to the Confidential Information of the other, provided that such independent development can be substantiated by the written records of such party. This Agreement, including all of its terms and conditions, will not be deemed to be Confidential Information and may be publicly disclosed by Parent.

(b) All Confidential Information of a party will be held in confidence by the other party with at least the same degree of care as such party protects its own confidential or proprietary information of like kind and import, but not less than a reasonable degree of care. Neither party will disclose in any manner Confidential Information of the other party in any form to any person or entity without the other party’s prior consent. However, each party may disclose relevant aspects of the other party’s Confidential Information to its officers, Affiliates, agents, subcontractors and employees to the extent reasonably necessary to perform its duties and obligations under this Agreement. Without limiting the foregoing, each party will implement such physical and other security measures and controls as are necessary to protect (a) the security and confidentiality of Confidential Information; (b) against any threats or hazards to the security and integrity of Confidential Information; and (c) against any unauthorized access to or use of Confidential Information. To the extent that a party delegates any duties and responsibilities under this Agreement to an agent or other subcontractor, the party ensures that such agent and subcontractor are contractually bound to confidentiality terms consistent with the terms of this Section 7.14.

(c) In the event that any requests or demands are made for the disclosure of Confidential Information, other than requests to Rights Agent for stockholder records pursuant to standard subpoenas from state or federal government authorities (e.g., divorce and criminal actions), the party receiving such request will promptly notify the other party to secure instructions from an authorized officer of such party as to such request and to enable the other party the opportunity to obtain a protective order or other confidential treatment, unless such notification is otherwise prohibited by law or court order. Each party expressly reserves the right, however, to disclose Confidential Information to any person whenever it is advised by counsel that it may be held liable for the failure to disclose such Confidential Information or if required by law or court order.

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(d) As may be required by law and without limiting any party’s rights in respect of a breach of this Section 7.14, each party will promptly:

(i) notify the other party in writing of any unauthorized possession, use or disclosure of the other party’s Confidential Information by any person or entity that may become known to such party;

(ii) furnish to the other party full details of the unauthorized possession, use or disclosure; and

(iii) use commercially reasonable efforts to prevent a recurrence of any such unauthorized possession, use or disclosure of Confidential Information.

7.15 Further Assurances. Subject to the provisions of this Agreement, the parties hereto will, from time to time, do all acts and things and execute and deliver all such further documents and instruments, as the other parties hereto may reasonably require to effectively carry out or perform the provisions of this Agreement.

7.16 Section 409A. Cash payments under this Agreement are intended to be exempt from Code Section 409A as short-term deferrals and are not intended to constitute “deferred compensation” within the meaning of Code Section 409A. This Agreement shall be interpreted, construed and administered in accordance with the foregoing intent, so as to avoid the imposition of taxes and penalties on Employee CVR Holders pursuant to Code Section 409A. Without limitation of the foregoing, unless otherwise permitted in compliance with or under an exemption from Code Section 409A, no CVR Payment Amount otherwise due to an Employee CVR Holder with respect to a CVR awarded in exchange for the cancellation of a Vested Company Option will be paid following the later of (i) the fifth anniversary of the Closing Date, and (ii) the latest time that payment of such CVR Payment Amount would not result in a Tax on the Employee CVR Holder under Code Section 409A. Any CVR Payment Amount that is not paid by reason of the preceding sentence will be reallocated to all CVR Holders in accordance with their pro rata allocations of CVR Payment Amounts (excluding the number of CVRs held by each Employee CVR Holder for which such payment would result in a Tax on such Employee CVR Holder under Code Section 409A). Each payment made under this Agreement shall be deemed a separate payment for purposes of Section 1.409A-2(b)(2) of the U.S. Treasury Regulations. None of Parent, Purchaser or any of their Affiliates shall have liability to any Employee CVR Holders, any such Employee CVR Holder’s spouse or otherwise if this Agreement or any amounts paid or payable hereunder become subject to the additional tax and penalties under Code Section 409A.

[Signature Page Follows]

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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

SHIN NIPPON BIOMEDICAL LABORATORIES, LTD.

By:

Name:

Title:

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

By:

Name:

Title:

[Signature Page to CVR Agreement]

EXHIBIT A

Column A	Column B		Column C
Aggregate Cumulative Net Proceeds	CVR Payment Amount		CVR Payment Amount Per CVR Share
	Incremental		Incremental
$25 million	$	5 million	$	0.15
$50 million	$	7.5 million	$	0.22
$100 million	$	15 million	$	0.45
$200 million	$	30 million	$	0.90
$300 million	$	40 million	$	1.20
$400 million	$	45 million	$	1.35
$500 million	$	50 million	$	1.50

FEE SCHEDULE

RIGHTS AGENT SERVICES
Acceptance Fee		Waived
Monthly Administration Fee (per CVR issue)	$	500.00
One -Time Fee for Issuance of CVRs to Vested Option Holders*	$	6,500.00
*   up to 250 employees
(service does not include state/fed tax remittance or W-2 reporting)
Milestone Payment Fee (per event):	$	2,500.00

American Stock Transfer & Trust Company, LLC (“Rights Agent”) and Shin Nippon Biomedical Laboratories, Ltd. (the “Company”) have entered into this Contingent Value Rights Agreement dated __, 2023 (the “Agreement”). The Rights Agent will provide the services detailed in the Agreement until expiration or termination. This fee schedule is being delivered pursuant to Section 3.2(h) of the Agreement.

OUT-OF-POCKET EXPENSES

Note that all customary out-of-pocket expenses will be billed in addition to the fees listed above.

These charges include, but are not limited to: printing and stationery, freight and materials delivery, postage and handling.

The fees quoted in this schedule apply to record keeping services provided by the Rights Agent and are subject to reasonable adjustment based on final review of documents. Should there be a corporate action on the contingent value rights, additional fees may apply.

EX-99.1

Exhibit 99.1

Satsuma Pharmaceuticals, Inc.

SNBL to Acquire Satsuma Pharmaceuticals

Transaction delivers immediate value and liquidity to Satsuma stockholders

SNBL to acquire all outstanding shares of Satsuma for upfront cash consideration of $0.91 per share

Satsuma stockholders to also receive non-tradeable CVR of up to $5.77 per share

With the goal of maximizing value for stockholders, Satsuma’s Board has carefully considered strategic options for Satsuma and STS101 and fully supports this transaction with SNBL

South San Francisco, CA, April 16, 2023 – Satsuma Pharmaceuticals, Inc. (“Satsuma”) (Nasdaq: STSA) today announced that it has entered into a definitive agreement to be acquired by Shin Nippon Biomedical Laboratories, Ltd. (TSE: 2395, “SNBL”) for $0.91 in cash per share at the closing of the transaction plus one non-tradeable contingent value right (“CVR”) of up to $5.77 per share. The CVR is payable pursuant to the future sale, license, or any other monetization events related to STS101 (dihydroergotamine (DHE) nasal powder), a novel investigational therapeutic product candidate for the acute treatment of migraine, (subject to certain terms and conditions, as set forth in more detail below). Satsuma submitted a New Drug Application (“NDA”) to the U.S. Food and Drug Administration (“FDA”) in March 2023 for STS101, which incorporates nasal powder formulation and delivery device technologies developed by SNBL and exclusively licensed by Satsuma.

“We are very pleased to announce that SNBL will be involved in the launch of this novel intranasal drug, which was developed based on SNBL’s novel intranasal drug delivery platform technology, pending potential FDA approval,” commented Dr. Ryoichi Nagata, Chairman and President of SNBL. “We believe that STS101 will contribute to improving the quality of life of patients suffering from migraine. Consistent with SNBL’s corporate mission ‘to support drug discovery and the advancement of medical technology to relieve human suffering,’ we look forward to STS101 potentially becoming a treatment option for people with migraine as soon as possible.”

“After carefully and comprehensively considering strategic options for Satsuma and STS101, the Satsuma Board of Directors believes that the acquisition of Satsuma by SNBL is the best strategic alternative for Satsuma and that this transaction will maximize value for our stockholders,” stated John Kollins, President and Chief Executive Officer of Satsuma. “We are pleased that SNBL shares our vision that STS101 has the potential to become an important and widely-prescribed acute treatment for migraine that can address the significant unmet needs of many people with migraine.”

Transaction Details

Under the terms of the definitive agreement, which has been approved by the boards of directors of both SNBL and Satsuma, SNBL will commence a tender offer for all outstanding shares of common stock of Satsuma for a price of $0.91 per share in cash plus one non-tradeable CVR worth up to $5.77 per share in cash (the “Tender Offer”). CVR holders will be entitled to receive payments related to proceeds received by SNBL in a future transaction involving STS101, including a potential sale, license, or other grant of rights (“Monetization Event”). The CVR is based on cumulative proceeds received by SNBL from the Monetization Event after making certain deductions.

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Satsuma Pharmaceuticals, Inc.

The Satsuma Board of Directors recommends that Satsuma stockholders tender their shares in the Tender Offer. Promptly upon successful completion of the Tender Offer, the acquisition subsidiary will be merged into Satsuma, and any remaining shares of common stock of Satsuma that were not tendered in the Tender Offer will be canceled and converted into the right to receive the same consideration payable in the Tender Offer.

Closing Conditions

Consummation of the transaction is subject to customary closing conditions, including the tender of a majority of Satsuma’s outstanding shares of common stock. The Tender Offer period is expected to commence in the next few weeks and to expire 20 business days after its commencement, unless otherwise extended. If the Tender Offer conditions are not satisfied, SNBL may be required to extend the Tender Offer under certain circumstances.

Advisors

Lazard acted as lead financial advisor and Houlihan Lokey also acted as financial advisor to Satsuma. Latham & Watkins LLP is acting as Satsuma’s legal advisor.

Wilson Sonsini Goodrich & Rosati is acting as legal advisor to SNBL.

About Satsuma Pharmaceuticals, Inc.

Satsuma Pharmaceuticals is a development-stage biopharmaceutical company developing a novel therapeutic product, STS101, for the acute treatment of migraine. STS101 is a unique and proprietary nasal powder formulation of the well-established anti-migraine drug, dihydroergotamine mesylate (“DHE”), administered via Satsuma’s proprietary nasal delivery device. STS101 incorporates nasal powder formulation and delivery device technologies developed by SNBL and exclusively licensed by Satsuma.

Satsuma is headquartered in South San Francisco, California with operations in both California and Research Triangle Park, North Carolina.

Cautionary Notice Regarding Forward-Looking Statements

This document contains “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995 relating to the proposed acquisition of Satsuma by SNBL. In some cases, forward-looking statements may be identified by terminology such as “believe,” “may,” “will,” “should”, “predict”, “goal”, “strategy”, “potentially,” “estimate,” “continue,” “anticipate,” “intend,” “could,” “would,” “project,” “plan,” “expect,” “seek” and similar expressions and variations thereof. These and other similar words are intended to identify forward-looking statements. Such forward-looking statements include, but are not limited to, statements about the structure, timing and completion of the proposed transaction; the ability to complete the transactions contemplated by the merger agreement, including the parties’ ability to satisfy the conditions to the consummation of the offer contemplated thereby and the other conditions set forth in the merger agreement; beliefs, expectations and statements about the benefits sought to be achieved in the proposed transaction; the estimated value of the acquisition for Satsuma stockholders; the potential effects of the acquisition on the parties and respective stockholders; the future operations of Satsuma, including with respect to the continued development of Satsuma’s STS101; the possibility that the conditions to payment under the CVRs will be

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Satsuma Pharmaceuticals, Inc.

met; the possibility of any termination of the merger agreement; the potential benefits and success of STS101; the timing and outcome of FDA review of the NDA submitted by Satsuma to the FDA in March 2023 for STS101; expectations regarding potential applications of STS101 to treat migraines; and the timing of Satsuma’s presentation of clinical data and the timing and nature of Satsuma’s manufacturing activities. Satsuma has based these forward-looking statements on current expectations and projections about future events and trends that Satsuma believes may affect the financial condition, results of operations, business strategy, short-term and long-term business operations and objectives and financial needs of SNBL and Satsuma, but there can be no guarantee that such expectations and projections will prove accurate in the future.

All statements other than statements of historical fact are statements that could be deemed forward-looking statements. Actual results may differ materially from current expectations because of risks associated with uncertainties as to the timing of the offer and the subsequent merger; uncertainties as to the number of Satsuma’s stockholders that will tender their shares in the offer; the risk that competing offers or acquisition proposals will be made; the possibility that various conditions to the consummation of the merger and the offer contemplated thereby may not be satisfied or waived; the effects of disruption from the transactions contemplated by the merger agreement on Satsuma’s business and the fact that the announcement and pendency of the transactions may make it more difficult to establish or maintain relationships with employees, suppliers and other business partners; and the risk that shareholder litigation in connection with the offer or the merger may result in significant costs of defense, indemnification and liability. Moreover, SNBL and Satsuma operate in very competitive and rapidly changing environments, and new risks emerge from time to time. Although Satsuma believes that the expectations reflected in such forward-looking statements are reasonable, Satsuma cannot guarantee future events, results, actions, levels of activity, performance or achievements, business and market conditions, the timing and results of biotechnology development and potential regulatory approval and whether the conditions to the closing of the proposed transaction are satisfied on the expected timetable or at all. Forward-looking statements are also subject to risks and uncertainties pertaining to the business of Satsuma, including those set forth in the “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of Satsuma’s Annual Report on Form 10-K for the year ended December 31, 2022, which is on file with the SEC and available on the SEC’s website at www.sec.gov. In addition to the risks described above and in Satsuma’s other filings with the SEC, other unknown or unpredictable factors could also affect Satsuma’s results. No forward-looking statements can be guaranteed and actual results may differ materially from such statements. The information contained in this document is provided only as of the date hereof, and no party undertakes any obligation to revise or update any forward-looking statements to reflect events or circumstances after the date hereof, except as required by law.

Important Additional Information and Where to Find It

The Tender Offer for the outstanding shares of common stock of Satsuma has not yet commenced. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell shares of Satsuma common stock, nor is it a substitute for the Tender Offer materials that SNBL and its acquisition subsidiary will file with the SEC upon commencement of the Tender Offer. At the time the Tender Offer is commenced, SNBL will file a Tender Offer Statement on Schedule TO (“Tender Offer Statement”) with the SEC, and thereafter Satsuma will file a solicitation/recommendation statement on Schedule 14D-9 (“Schedule 14D-9 Solicitation Statement”) with respect to the Tender Offer. Both the Tender Offer Statement and the Schedule 14D-9 Solicitation Statement will be mailed to Satsuma’s stockholders free of charge. A free copy of the Tender Offer Statement and the Schedule 14D-9 Solicitation Statement will also be made available to all stockholders of Satsuma by contacting Satsuma at info@satsumarx.com or by phone at (650) 410-3200. In addition, the Tender Offer

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Satsuma Pharmaceuticals, Inc.

Statement, the related letter of transmittal and certain other Tender Offer documents and the Schedule 14D-9 Solicitation Statement (and all other documents filed with the SEC) will be available at no charge on the SEC’s website: www.sec.gov, upon filing with the SEC. In addition to these documents, Satsuma files annual, quarterly and current reports and other information with the SEC. These filings with the SEC are also available to the public for free at the SEC’s website. In addition, the Schedule 14D-9 Solicitation Statement and the other documents filed by the Satsuma with the SEC are available to all stockholders of Satsuma free of charge at http://investors.Satsumarx.com.

SATSUMA’S STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO AND THE SCHEDULE 14D-9 SOLICITATION STATEMENT CAREFULLY, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO, AS WELL AS IMPORTANT INFORMATION THAT HOLDERS OF SHARES OF SATSUMA’S COMMON STOCK SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES.

###

INVESTOR AND CORPORATE CONTACTS:

Satsuma Pharmaceuticals, Inc.

Corey Davis, PhD

LifeSci Advisors, LLC

212-915-2577

cdavis@lifesciadvisors.com

Tom O’Neil, Chief Financial Officer

Satsuma Pharmaceuticals, Inc.

tom@satsumarx.com

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Document and Entity Information	Apr. 11, 2023
Cover [Abstract]
Amendment Flag	false
Entity Central Index Key	0001692830
Document Type	8-K
Document Period End Date	Apr. 11, 2023
Entity Registrant Name	SATSUMA PHARMACEUTICALS, INC.
Entity Incorporation State Country Code	DE
Entity File Number	001-39041
Entity Tax Identification Number	81-3039831
Entity Address, Address Line One	400 Oyster Point Boulevard
Entity Address, Address Line Two	Suite 221
Entity Address, City or Town	South San Francisco
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	94080
City Area Code	(650)
Local Phone Number	410-3200
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Common Stock
Trading Symbol	STSA
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Entity Ex Transition Period	false