Exhibit 3.1

 

Sagimet Biosciences INC.

 

TENTH AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

 

Sagimet Biosciences Inc., a corporation organized and existing under and by virtue of the Delaware General Corporation Law, hereby certifies as follows:

 

The name of this corporation is Sagimet Biosciences Inc. and the original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on December 19, 2006.

 

The Tenth Amended and Restated Certificate of Incorporation, in the form of Exhibit A attached hereto, has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the Delaware General Corporation Law.

 

The Ninth Amended and Restated Certificate of Incorporation as heretofore adopted is hereby amended and restated to read in its entirety as set forth in Exhibit A attached hereto.

 

In Witness Whereof, this Tenth Amended and Restated Certificate of Incorporation has been signed this 21st day of December, 2020.

 

	Sagimet Biosciences Inc.
	By:	/s/ George Kemble
	Name:	George Kemble
	Title:	Chief Executive Officer

 

 

EXHIBIT A

TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

Sagimet Biosciences INC.

 

FIRST

 

The name of this corporation is Sagimet Biosciences Inc. (the “Company”).

 

SECOND

 

The address of the Company’s registered office in the State of Delaware is 2140 South Dupont Highway, in the City of Camden, County of Kent, 19934. The name of its registered agent at such address is Paracorp Incorporated.

 

THIRD

 

The purpose of this Company is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law.

 

FOURTH

 

A.         The Company is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The aggregate number of shares that the Company shall have authority to issue is 2,964,360,924, of which 1,590,550,754 shares shall be Common Stock with the par value of $0.0001 per share (the “Common Stock”), and of which 1,373,810,170 shares shall be Preferred Stock with the par value of $0.0001 per share (the “Preferred Stock”).

 

B.          23,301 of the authorized shares of Preferred Stock are hereby designated “Series A Preferred Stock” (“Series A Preferred”), 720,199 of the authorized shares of Preferred Stock are hereby designated “Series A’ Preferred Stock” (“Series A’ Preferred”), 3,217 of the authorized shares of Preferred Stock are hereby designated “Series B Preferred Stock” (“Series B Preferred”), 1,953,304 of the authorized shares of Preferred Stock are hereby designated “Series B’ Preferred Stock” (“Series B’ Preferred”), 8,827,439 of the authorized shares of Preferred Stock are hereby designated “Series B-1 Preferred Stock” (“Series B-1 Preferred”), 14,001,243 of the authorized shares of Preferred Stock are hereby designated “Series B-1’ Preferred Stock” (“Series B-1’ Preferred”), 22,732,250 of the authorized shares of Preferred Stock are hereby designated “Series C Preferred Stock” (“Series C Preferred”), 1,037 of the authorized shares of Preferred Stock are hereby designated “Series C’ Preferred Stock” (“Series C’ Preferred”), 24,509,954 of the authorized shares of Preferred Stock are hereby designated “Series D Preferred Stock” (“Series D Preferred”), 3,475,426 of the authorized shares of Preferred Stock are hereby designated “Series D’ Preferred Stock” (“Series D’ Preferred”), 51,331,148 of the authorized shares of Preferred Stock are hereby designated “Series D-1 Preferred Stock” (“Series D-1 Preferred”), 631,638,725 of the authorized shares of Preferred Stock are hereby designated “Series E Preferred Stock” (“Series E Preferred”), and 614,592,927 of the authorized shares of Preferred Stock are hereby designated “Series F Preferred Stock” (“Series F Preferred”). As used herein, the term “Series Preferred” shall collectively mean the Series A Preferred, the Series A’ Preferred, the Series B Preferred, the Series B’ Preferred, the Series B-1 Preferred, the Series B-1’ Preferred, the Series C Preferred, the Series C’ Preferred, the Series D Preferred, the Series D’ Preferred, the Series E Preferred and the Series F Preferred. For the avoidance of doubt, the Series Preferred shall not include the Series D-1 Preferred.

 

 

C.          The terms and provisions of the Series Preferred, the Series D-1 Preferred and Common Stock are as set forth below. Unless otherwise indicated, references to “Sections,” “Subsections” or “paragraphs” in this Part C of this Article FOURTH refer to sections, subsections and paragraphs of Part C of this Article FOURTH.

 

1.                          Dividends.

 

(a)                  Treatment of Series Preferred. The Series Preferred shall be entitled to receive dividends at an annual rate of eight percent (8%) of the respective Series A Original Issue Price (as hereinafter defined), Series A’ Original Issue Price (as hereinafter defined), Series B Original Issue Price (as hereinafter defined), Series B’ Original Issue Price (as hereinafter defined), Series B-1 Original Issue Price (as hereinafter defined), Series B-1’ Original Issue Price (as hereinafter defined), Series C Original Issue Price (as hereinafter defined), Series C’ Original Issue Price (as hereinafter defined), Series D Original Issue Price (as hereinafter defined), Series D’ Original Issue Price (as hereinafter defined), Series E Original Issue Price (as hereinafter defined) or Series F Original Issue Price (as hereinafter defined), as the case may be, per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the applicable Series Preferred) per annum, out of any assets at the time legally available therefor, when, as and if declared by the Company’s Board of Directors (the “Board”), prior and in preference to any dividend or Distributions (as defined below), declared, paid or set aside on shares of the Common Stock. No dividends or Distributions other than those payable solely in Common Stock shall be paid on any Common Stock unless and until (i) the aforementioned dividend or Distribution is paid on each outstanding share of Series Preferred, and (ii) a dividend or Distribution is paid with respect to all outstanding shares of Series Preferred in an amount equal to or greater than the aggregate amount of dividends or Distributions which would be payable to the holder of Series Preferred if, immediately prior to the record date set for such dividend payment or Distribution on Common Stock, such share of Series Preferred had been converted into Common Stock. The Board is under no obligation to declare dividends, no rights shall accrue to the holders of Series Preferred if dividends are not declared, and any dividends on the Series Preferred shall be noncumulative.

 

(b)                    Treatment of Common Stock. If, after dividends in the full preferential amounts specified in Subsection 1(a) for the Series Preferred have been paid or declared and set apart in any calendar year of the Company, any additional dividends or Distributions declared by the Board out of funds legally available therefor shall be distributed among all holders of Common Stock held by each as of the record date fixed for determining those entitled to receive such Distribution; provided that no such per share dividends or Distributions on the Common Stock shall exceed the per share dividends or Distributions paid on the Series Preferred (on an as-converted to Common Stock basis) during any calendar year.

 

 

(c)                    Distribution. “Distribution” means the transfer of cash, property or securities without consideration, whether by way of dividend or otherwise, or the purchase of shares of capital stock of the Company (other than in connection with the repurchase of shares of Common Stock issued to or held by employees, consultants, officers or directors at a price not greater than the amount paid by such persons for such shares upon termination of their employment or services pursuant to agreements providing for the right of said repurchase or upon exercise of a right of first refusal approved by the Board) for cash or property.

 

(d)                    Consent to Certain Repurchases. As authorized by Section 402.5(c) of the General Corporation Law of California, Sections 502 and 503 of the General Corporation Law of California, to the extent otherwise applicable, shall not apply with respect to Distributions made by the Company in connection with the repurchase of shares of Common Stock issued to or held by employees, consultants, officers or directors at a price not greater than the amount paid by such person for such shares upon termination of their employment or services pursuant to agreements providing for the right of said repurchase or upon exercise of a right of first refusal, which agreements were authorized by the Board.

 

2.                          Liquidation Rights.

 

(a)                     Definitions.

 

(i)               “Series A Original Issue Price” shall mean, with respect to each share of Series A Preferred, $10.00 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series A Preferred following the filing date hereof).

 

(ii)               “Series A’ Original Issue Price” shall mean Series A Original Issue Price.

 

(iii)            “Series A Liquidation Preference” shall mean, with respect to each share of Series A Preferred, the Series A Original Issue Price plus all declared and unpaid dividends on each such share.

 

(iv)              “Series B Original Issue Price” shall mean, with respect to each share of Series B Preferred, $11.50 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series B Preferred following the filing date hereof).

 

(v)                 “Series B’ Original Issue Price” shall mean Series B Original Issue Price.

 

(vi)              “Series B Liquidation Preference” shall mean, with respect to each share of Series B Preferred, the Series B Original Issue Price plus all declared and unpaid dividends on each such share.

 

 

(vii)              “Series B-1 Original Issue Price” shall mean, with respect to each share of Series B-1 Preferred, $0.88 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series B-1 Preferred following the filing date hereof).

 

(viii)            “Series B-1’ Original Issue Price” shall mean Series B-1 Original Issue Price.

 

(ix)           “Series B-1 Liquidation Preference” shall mean, with respect to each share of Series B-1 Preferred, the Series B-1 Original Issue Price plus all declared and unpaid dividends on each such share.

 

(x)               “Series C Original Issue Price” shall mean, with respect to each share of Series C Preferred, $0.88 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series C Preferred following the filing date hereof).

 

(xi)               “Series C’ Original Issue Price” shall mean Series C Original Issue Price.

 

(xii)              “Series C Liquidation Preference” shall mean, with respect to each share of Series C Preferred, the Series C Original Issue Price plus all declared and unpaid dividends on each such share.

 

(xiii)            “Series D Original Issue Price” shall mean, with respect to each share of Series D Preferred, $0.88 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series D Preferred following the filing date hereof).

 

(xiv)            “Series D’ Original Issue Price” shall mean Series D Original Issue Price.

 

(xv)             “Series D Liquidation Preference” shall mean, with respect to each share of Series D Preferred, the Series D Original Issue Price plus all declared and unpaid dividends on each such share.

 

(xvi)             “Series D-1 Original Issue Price” shall mean, with respect to each share of Series D-1 Preferred, $0.88 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series D-1 Preferred following the filing date hereof).

 

(xvii)           “Series D-1 Liquidation Preference” shall mean, with respect to each share of Series D-1 Preferred, the Series D-1 Original Issue Price.

 

(xviii)         “Series E Original Issue Price” shall mean, with respect to each share of Series E Preferred, $0.09219 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series E Preferred following the filing date hereof).

 

 

(xix)           “Series E Liquidation Preference” shall mean, with respect to each share of Series E Preferred, the Series E Original Issue Price plus all declared and unpaid dividends on each such share.

 

(xx)           “Series F Original Issue Price” shall mean, with respect to each share of Series F Preferred, $0.13020 per share (as adjusted for stock splits, combinations, reorganizations and the like with respect to the Series F Preferred following the filing date hereof).

 

(xxi)            “Series F Liquidation Preference” shall mean, with respect to each share of Series F Preferred, the Series F Original Issue Price plus all declared and unpaid dividends on each such share.

 

(b)                    Liquidation Preference. In the event of any Liquidation, either voluntary or involuntary, the holders of the Series F Preferred, the Series E Preferred, the Series D-1 Preferred, the Series D Preferred, the Series C Preferred, the Series B-1 Preferred, the Series B Preferred and the Series A Preferred shall be entitled to receive, out of the assets of the Company, the Series F Liquidation Preference, the Series E Liquidation Preference, the Series D-1 Liquidation Preference, the Series D Liquidation Preference, the Series C Liquidation Preference, the Series B-1 Liquidation Preference, the Series B Liquidation Preference and the Series A Liquidation Preference, respectively, on a pari passu basis, then held by such holder before any payment shall be made or any assets distributed to the holders of the Common Stock by reason of their ownership thereof. If upon a Liquidation, the assets to be distributed among the holders of the Series F Preferred, the Series E Preferred, the Series D-1 Preferred, the Series D Preferred, the Series C Preferred, the Series B-1 Preferred, the Series B Preferred and the Series A Preferred are insufficient to permit the payment to such holders of the full Series F Liquidation Preference, the Series E Liquidation Preference, the Series D-1 Liquidation Preference, the Series D Liquidation Preference, the Series C Liquidation Preference, the Series B-1 Liquidation Preference, the Series B Liquidation Preference and the Series A Liquidation Preference, respectively, for their shares, then the entire remaining assets of the Company legally available for distribution shall be distributed with equal priority and pro rata among the holders of the Series F Preferred, the Series E Preferred, the Series D-1 Preferred, the Series D Preferred, the Series C Preferred, the Series B-1 Preferred, the Series B Preferred and the Series A Preferred at the time outstanding based upon the aggregate Series F Liquidation Preference, the Series E Liquidation Preference, the Series D-1 Liquidation Preference, the Series D Liquidation Preference, the Series C Liquidation Preference, the Series B-1 Liquidation Preference, the Series B Liquidation Preference and the Series A Liquidation Preference, respectively.

 

(c)                     Remaining Assets. After the payment to the holders of Series F Preferred, Series E Preferred, Series D-1 Preferred, Series D Preferred, Series C Preferred, Series B-1 Preferred, Series B Preferred and Series A Preferred, respectively, of the Series F Liquidation Preference, Series E Liquidation Preference, Series D-1 Liquidation Preference, Series D Liquidation Preference, Series C Preferred Liquidation Preference, Series B-1 Liquidation Preference, Series B Liquidation Preference and Series A Liquidation Preference (each, a “Liquidation Preference”), any remaining assets of the Company shall be distributed pro rata among the holders of the Common Stock according to the number of shares of Common Stock held by such holders.

 

 

(d)                    Deemed Conversion. Notwithstanding anything to the contrary contained herein, for purposes of determining the amount each holder of shares of Series Preferred is entitled to receive with respect to any Liquidation, each such holder of shares of a series of Series Preferred shall be deemed to have converted (regardless of whether such holder actually converted) such holder’s shares of such series into shares of Common Stock immediately prior to the Liquidation if, as a result of an actual conversion, such holder would receive with respect to their shares of such series, in the aggregate, an amount greater than the amount that would be distributed to such holder if such holder did not convert their shares of such series of Series Preferred into shares of Common Stock. If any such holder shall be deemed to have converted shares of Series Preferred into shares of Common Stock pursuant to this paragraph, then such holder shall not be entitled to receive any Distribution upon a Liquidation that would otherwise be made to holders of shares of such series of Series Preferred that have not converted (or have not been deemed to have converted) into shares of Common Stock.

 

(e)                    Contingent Payments. If any portion of the consideration payable to the stockholders of the Company in connection with a Liquidation is placed into escrow and/or is payable to the stockholders of the Company subject to contingencies, the documentation pursuant to which the transaction giving rise to such Liquidation shall provide that (i) the portion of such consideration that is not placed in escrow and not subject to any contingencies (the “Initial Consideration”) shall be allocated among the holders of capital stock of the Company in accordance with Subsections 2(b) and 2(c) hereof as if the Initial Consideration were the only consideration payable in connection with such Liquidation, and (ii) any additional consideration that becomes payable to the stockholders of the Company upon release from escrow or satisfaction of contingencies shall be allocated among the holders of capital stock of the Company in accordance with this Section 2 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the avoidance of doubt, in applying Distributions upon a Liquidation that involves installment or contingent payments, the holders of the Preferred Stock will be entitled to an amount, re-calculated at the time of each installment or contingent payment and applied on a cumulative basis, that is the greater of, but not exceeding, (1) the amounts specified in Subsection 2(b) payable to such holder of Preferred Stock, or (2) the amount to which such holder of Series Preferred would be entitled pursuant to Subsection 2(c) if such shares of Series Preferred were deemed to have converted to Common Stock pursuant to Subsection 2(d) immediately prior to the Liquidation, taking into account cumulative installment or contingent payments. For the further avoidance of doubt, in applying Distributions upon a Liquidation, all amounts received by a holder of Preferred Stock in previous Distributions in connection with such Liquidation shall be cumulated, and recognized as having already been paid to such holder of Preferred Stock, in connection with any new Distribution made in connection with such Liquidation, such that the total amounts payable to the holders of Preferred Stock and Common Stock will be determined as if all previous and current Distributions made in connection with such Liquidation were made as part of the same transaction.

 

 

(f)                       Liquidation. Each of the following events shall be considered a “Liquidation” unless a majority of the Board and the holders of a majority of the then-outstanding Series Preferred, voting together as a single class on an as-converted to Common Stock basis, which majority must include holders of a majority of the then-outstanding Series F Preferred Stock, elect otherwise by written notice sent to the Company at least ten (10) days prior to the effective date of any such event: (i) the voluntary or involuntary liquidation, dissolution or winding up of the Company; (ii) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganizations, provided that the applicable transaction shall not be deemed a Liquidation unless the Company’s stockholders constituted immediately prior to such transaction do not hold more than fifty percent (50%) of the voting power of the surviving or acquiring entity (or its parent) immediately following such transaction (taking into account only voting power resulting from stock of the Company held by such stockholders prior to such transaction); (iii) any transaction or series of related transactions to which the Company is a party in which in excess of fifty percent (50%) of the Company’s voting power outstanding before such transaction is transferred; or (iv) a sale, conveyance or other disposition by the Company or any subsidiary of the Company, in a single transaction or series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries taken as a whole (including without limitation a license by the Company or any subsidiary of the Company of all or substantially all of the Company’s or such subsidiary’s, as the case may be, intellectual property that is either exclusive or otherwise structured in a manner that constitutes a license of all or substantially all of the assets of the Company and its subsidiaries taken as a whole) or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company; provided that a Liquidation shall not include (x) a merger or consolidation with a wholly-owned subsidiary of the Company, (y) a merger effected exclusively for the purpose of changing the domicile of the Company or (z) any transaction or series of related transactions principally for bona fide equity financing purposes in which the Company is the surviving corporation.

 

(g)                     Determination of Value if Proceeds Other than Cash. In any Liquidation, if the proceeds received by the Company or its stockholders are other than cash, its value will be deemed its fair market value as determined in good faith by the Board. Any securities shall be valued as follows:

 

(i)                        Securities not subject to investment letter or other similar restrictions on free marketability covered by Subsection 2(g)(ii) below:

 

(A)                If traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the twenty (20) trading-day period ending three (3) trading days prior to the closing of the Liquidation;

 

(B)                  If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty (20) trading-day period ending three (3) trading days prior to the closing of the Liquidation; and

 

 

(C)                  If there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board.

 

(ii)            The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in Subsection 2(g)(i)(A), 2(g)(i)(B) or 2(g)(i)(C) to reflect the approximate fair market value thereof, as determined in good faith by the Board.

 

(h)                     Effecting Certain Liquidation Events. The Company shall not have the power to effect a Liquidation referred to in the Subsections above unless the agreement or agreements for such transaction provide that the consideration payable to the stockholders of the Company shall be allocated among the holders of capital stock of the Company in accordance with this Section 2.

 

3.             Conversion. The Series Preferred shall have conversion rights as follows:

 

(a)                     Right to Convert. Each share of Series Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series Preferred. Each share of Series Preferred, other than Series F Preferred and Series E Preferred, shall be convertible into that number of fully-paid and nonassessable shares of Common Stock that is equal to $0.88 (as adjusted for stock splits, combinations, reorganizations and the like with respect to such series of the Series Preferred following the filing date hereof) divided by the applicable Series Preferred Conversion Price (defined below). The Series F Preferred shall be convertible into that number of fully-paid and nonassessable shares of Common Stock that is equal to the Series F Original Issue Price divided by the applicable Series Preferred Conversion Price. The Series E Preferred shall be convertible into that number of fully-paid and nonassessable shares of Common Stock that is equal to the Series E Original Issue Price divided by the applicable Series Preferred Conversion Price. The “Series Preferred Conversion Price” with respect to all shares of Series Preferred other than Series F Preferred and Series E Preferred shall initially be $0.88, and with respect to the Series F Preferred and Series E Preferred shall initially be the Series F Original Issue Price and the Series E Original Issue Price, respectively, and in each case shall be subject to adjustment as provided herein. For the avoidance of doubt, the Series D-1 Preferred shall not be convertible into shares of Common Stock pursuant to this Subsection 3(a).

 

(b)                    Automatic Conversion. Each share of Preferred Stock shall automatically be converted into shares of Common Stock at the then-effective applicable Series Preferred Conversion Price or Series D-1 Preferred Conversion Price (as defined below) as applicable (the Series Preferred Conversion Price and the Series D-1 Preferred Conversion Price are referred to herein collectively as the “Conversion Price”) for such share immediately upon (each, an “Automatic Conversion”) (1) the affirmative vote of the holders of a majority of the then-outstanding shares of Series Preferred, voting together as a single class on an as-converted to Common Stock basis, and the affirmative vote of the holders of a majority of the then-outstanding shares of Series F Preferred, or (2) the closing of the sale of shares of Common Stock to the public at a price of at least 1.25 times the Series F Original Issues Price in a firmly underwritten public offering pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on Form S-1 (as defined in the Securities Act) or any successor form, with aggregate gross proceeds to the Company in such offering not less than $50,000,000 (before deduction of underwriters’ discounts and commissions) and in connection with such offering the Common Stock is listed on the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (a “Qualified IPO”). Each share of Series D-1 Preferred shall be convertible pursuant to this Subsection 3(b) only, and shall be convertible into that number of fully-paid and nonassessable shares of Common Stock that is equal to $0.88 (as adjusted for stock splits, combinations, reorganizations and the like with respect to such series of the Preferred Stock following the filing date hereof) divided by the Series D-1 Preferred Conversion Price. “Series D-1 Preferred Conversion Price” shall initially be $18,000,000, and shall be subject to adjustment as provided herein.

 

 

(c)                     Mechanics of Conversion. No fractional shares of Common Stock shall be issued upon conversion of the Preferred Stock. In lieu of any fractional shares to which the holder of Series Preferred would otherwise be entitled, the Company shall pay the fair market value cash equivalent of such fractional share as determined in good faith by the Board. For such purpose, all shares of Series Preferred held by each holder shall be aggregated, and any resulting fractional share of Common Stock shall be paid in cash. In lieu of any fractional shares to which the holder of Series D-1 Preferred would otherwise be entitled, the Company shall round up to the nearest whole share. Before any holder of Preferred Stock shall be entitled to convert the same into full shares of Common Stock, and to receive certificate(s) therefor, it shall surrender the Preferred Stock certificate or certificates, duly endorsed, at the office of the Company or of any transfer agent for the Preferred Stock, and shall give written notice to the Company at such office that such holder elects to convert such shares; provided, however, that in the event of an Automatic Conversion pursuant to Subsection 3(b) above, the outstanding shares of Preferred Stock shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided, further, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such Automatic Conversion unless either the certificates evidencing such shares of Preferred Stock are delivered to the Company or its transfer agent as provided above, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued and, if applicable, any event on which such conversion is contingent.

 

The Company shall, as soon as practicable after delivery of the Preferred Stock certificate(s) to the Company, issue and deliver to such holder of Preferred Stock or its nominee, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled and a check payable to the holder in the amount of any cash amounts payable as the result of a conversion into fractional shares of Common Stock, plus any declared and unpaid dividends on the converted Preferred Stock. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date; provided, however, that if the conversion is in connection with an underwritten offer of securities registered pursuant to the Securities Act, the conversion may, at the option of any holder tendering Preferred Stock for conversion, be conditioned upon the closing of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common Stock issuable upon such conversion of the Preferred Stock shall not be deemed to have converted such Preferred Stock until immediately prior to the closing of the sale of such securities.

 

 

All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and to receive payment of any dividends declared but unpaid thereon. Any shares of Preferred Stock so converted shall be retired and cancelled and shall not be reissued as shares of such respective series, and, notwithstanding any other approvals otherwise required hereunder, the Company (without the need for stockholder action) may from time to time take such appropriate action as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly with respect to such converted shares.

 

Upon any such conversion, no additional adjustment to the respective Conversion Price shall be made for any declared and unpaid dividends on the Preferred Stock surrendered for conversion that remain unpaid or on the Common Stock delivered upon conversion.

 

(d)                    Adjustments for Subdivisions or Combinations of Common Stock. If at any time or from time to time on or after the date that the first share of Series F Preferred is issued (the “Original Issue Date”), the outstanding shares of Common Stock shall be subdivided (by stock split, stock dividend or otherwise), into a greater number of shares of Common Stock without a corresponding subdivision of the Preferred Stock, the applicable Conversion Price in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased. If at any time or from time to time on or after the Original Issue Date, if the outstanding shares of Common Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Common Stock without a corresponding combination of the Preferred Stock, the applicable Conversion Price in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

 

(e)                     Adjustments for Reclassification, Exchange and Substitution. If at any time or from time to time on or after the Original Issue Date, the Common Stock issuable upon conversion of the Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of securities, whether by capital reorganization, recapitalization, reclassification or other event (other than a subdivision or combination of shares pursuant to Subsection 3(d) above), concurrently with the effectiveness of such capital reorganization, recapitalization, reclassification or other event, the Preferred Stock shall be convertible into, in lieu of the number of shares of Common Stock which the holders would otherwise have been entitled to receive, a number of shares of such other class or classes of securities equivalent to the number of such shares or securities that would have been received by the holder of a number of shares of Common Stock issuable upon conversion of the Preferred Stock immediately prior to such capital reorganization, recapitalization, reclassification or other event. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 3 with respect to the rights of the holders of Preferred Stock after the capital reorganization, recapitalization, reclassification or other event to the end that the provisions of this Section 3 (including adjustment of the applicable Conversion Price then in effect and the number and type of shares or other securities issuable upon conversion of the Preferred Stock) shall be applicable after that event and be as nearly equivalent as practicable.

 

 

(f)                       Adjustment for Common Stock Dividends and Distributions. If at any time or from time to time on or after the Original Issue Date, the Company shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the applicable Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the applicable Conversion Price then in effect by a fraction equal to:

 

(1)                     the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and

 

(2)                    the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution;

 

provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the applicable Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the applicable Conversion Price shall be adjusted pursuant to this Subsection as of the time of actual payment of such dividends or distributions; and provided further, however, that no such adjustment shall be made if the holders of Preferred Stock simultaneously receive (i) a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event or (ii) a dividend or other distribution of shares of Preferred Stock which are convertible, as of the date of such event, into such number of shares of Common Stock as is equal to the number of additional shares of Common Stock being issued with respect to each share of Common Stock in such dividend or distribution.

 

(g)                     Adjustments for Other Dividends and Distributions. If at any time or from time to time on or after the Original Issue Date, the Company shall make or issue, or fix a record date for the determination of holders of capital stock of the Company entitled to receive, a dividend or other distribution payable in securities of the Company (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Subsection 3(f) do not apply to such dividend or distribution, then and in each such event the holders of Preferred Stock shall receive, simultaneously with the distribution to the holders of such capital stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event.

 

 

 

(h)                    Adjustments for Reorganization, Merger, Consolidation or Sale of Assets. If at any time or from time to time on or after the Original Issue Date, the Common Stock issuable upon conversion of the Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by a reorganization, merger or consolidation of the Company with or into another entity, or the sale of all or substantially all of the Company’s properties and assets to any other person or entity (other than as provided for elsewhere in this Section 3 or a transaction subject to Section 2 above) then, as a part of such reorganization, merger, consolidation or sale, provision shall be made so that the holders of Preferred Stock shall thereafter be entitled to receive upon conversion of the then-outstanding Preferred Stock, the number of shares of stock or other securities or property of the Company, or of the successor entity resulting from such merger or consolidation or sale, to which a holder of Common Stock deliverable upon conversion of the Preferred Stock would have been entitled to receive upon such capital reorganization, merger consolidation or sale. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 3 with respect to the rights and interests of the holders of the then-outstanding Preferred Stock after the reorganization, merger, consolidation or sale to the end that the provisions of this Section 3 (including adjustments of the applicable Conversion Price then in effect and the number of shares purchasable upon conversion of the Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.

 

(i)                       Adjustments for Dilutive Issuances.

 

(i)                        If at any time or from time to time on or after the Original Issue Date, the Company shall issue or sell any shares of Common Stock (as actually issued or, pursuant to paragraph (iii) below, deemed to be issued) without consideration or for a consideration per share less than the Conversion Price applicable to a series of Preferred Stock in effect immediately prior to such issue or sale, then immediately upon such issue or sale the Conversion Price applicable to such series shall be reduced to a price (calculated to the nearest cent) determined by multiplying the Conversion Price applicable to such series in effect immediately prior to such issuance or sale by a fraction, the numerator of which shall be the number of shares of “Calculated Securities” (defined below) outstanding immediately prior to such issue or sale plus the number of shares of Common Stock which the aggregate consideration received by the Company for the total number of shares of Common Stock so issued or sold (or deemed to be issued or sold) would purchase at the applicable Conversion Price in effect immediately prior to such issuance or sale, and the denominator of which shall be the number of shares of Calculated Securities outstanding immediately prior to such issue or sale plus the number of shares of Common Stock so issued or sold. “Calculated Securities” means (A) all shares of Common Stock actually outstanding and (B) all shares of Common Stock issuable upon exercise, conversion or exchange of all Convertible Securities (as defined below).

 

 

(ii)                    For the purposes of paragraph (i) above, none of the following issuances (or deemed issuances) shall be considered the issuance (or deemed issuance) or sale of Common Stock:

 

(A)                  The issuance of Common Stock upon the conversion of any outstanding Convertible Securities as of the date of the filing of this Tenth Amended and Restated Certificate of Incorporation (this “Restated Certificate”), including the Preferred Stock. “Convertible Securities” shall mean any bonds, debentures, notes or other evidences of indebtedness, and any stock, options, warrants, purchase rights or any other securities directly or indirectly convertible into, exercisable for, or exchangeable for Common Stock.

 

(B)                    Shares of Common Stock issued or issuable by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 3(f) or Subsection 3(g) above and shares of Common Stock issued or deemed issued as a dividend or Distribution on the Preferred Stock.

 

(C)                  The issuance of shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary either directly or pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board.

 

(D)                  The issuance of shares of Common Stock or Convertible Securities to financial institutions, equipment lessors, landlords, brokers or similar entities in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, the principal purpose of which is other than the raising of capital through the sale of equity securities of the Company and the terms of which are approved by the Board.

 

(E)                  The issuance of shares of Common Stock or Convertible Securities in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by the Board.

 

(F)                    Shares of Common Stock issued or issuable pursuant to a Qualified IPO.

 

(G)                 The issuance of shares of Common Stock or Convertible Securities to an entity in connection with a corporate strategic relationship or transaction, the principal purpose of which is other than the raising of capital through the sale of equity securities of the Company and which terms are approved by the Board.

 

(H)                  The issuance of Common Stock upon conversion of the Series Preferred.

 

(I)                  The issuance of Series F Preferred pursuant to that certain Series F Preferred Stock Purchase Agreement between the Company and certain purchasers of Series F Preferred, dated on or about the filing date hereof.

 

(J)                    The issuance of Common Stock upon the exercise, conversion or exchange of Convertible Securities issued in accordance with this paragraph (ii).

 

(iii)                 For the purposes of paragraph (i) above, the following subparagraphs (A) to (E), inclusive, shall also be applicable:

 

(A)               In case at any time the Company shall grant any warrants, rights or options to subscribe for, purchase or otherwise acquire Convertible Securities or Common Stock (excluding Convertible Securities and Common Stock issued in accordance with Subsection 3(i)(ii) above) (collectively “Options”) or shall fix a record date for the determination of holders entitled to received such Options, whether or not such Options are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options (determined by dividing (x) the total amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of such Options, plus, in the case of any such Options which relate to such Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options as set forth in the instrument relating thereto assuming the satisfaction of any conditions to the exercisability, convertibility or exchangeability) shall be less than the applicable Conversion Price in effect immediately prior to the time of the granting of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall (as of the date of granting of such Options) be deemed to be outstanding and to have been issued for such price per share.

 

(B)                    In case at any time the Company shall issue or sell any Convertible Securities (excluding Convertible Securities and Common Stock issued in accordance with Subsection 3(i)(ii) above), whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon such exercise, conversion or exchange (determined by dividing (x) the total amount received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise, conversion or exchange thereof, by (y) the total maximum number of shares of Common Stock issuable upon the exercise, conversion or exchange of all such Convertible Securities as set forth in the instrument relating thereto assuming the satisfaction of any conditions to the exercisability, convertibility or exchangeability) shall be less than the applicable Conversion Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon exercise, conversion or exchange of such Convertible Securities shall (as of the date of the issue or sale of such Convertible Securities) be deemed to be outstanding and to have been issued for such price per share, provided that if any such issue or sale of such Convertible Securities is made upon exercise of any rights to subscribe for or to purchase or any option to purchase any such Convertible Securities for which adjustments of the applicable Conversion Price have been or are to be made pursuant to other provisions of this paragraph (iii), no further adjustment of the applicable Conversion Price shall be made by reason of such issue or sale.

 

 

(C)                     In case at any time any shares of Common Stock, Convertible Securities or Options shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor. In case any shares of Common Stock, Convertible Securities or Options shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair market value of such consideration as determined in good faith by the Board. In case any shares of Common Stock, Convertible Securities or Options shall be issued in connection with any merger of another entity into the Company, the amount of consideration therefor shall be deemed to be the fair value of the assets of such merged corporation as determined in good faith by the Board after deducting therefrom all cash and other consideration (if any) paid by the Company in connection with such merger.

 

(D)                  If the terms of any Convertible Security or Option (excluding Convertible Securities or Options issued in accordance with Subsection 3(i)(ii) above), the issuance of which resulted in an adjustment to the Conversion Price pursuant to the terms of this Subsection 3(i), are revised (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Convertible Security or Option or (2) any increase or decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then, effective upon such increase or decrease becoming effective, the applicable Conversion Price computed upon the original issue of such Convertible Security or Option (or upon the occurrence of a record date with respect thereto) shall be readjusted to such applicable Conversion Price as would have been obtained had such revised terms been in effect upon the original date of issuance of such Convertible Security or Option. Notwithstanding the foregoing, no adjustment pursuant to this paragraph (D) shall have the effect of increasing the applicable Conversion Price to an amount which exceeds the lower of (i) the applicable Conversion Price on the original adjustment date, or (ii) the applicable Conversion Price that would have resulted from any issuances of shares of Common Stock without consideration or for a consideration per share less than the applicable Conversion Price in effect immediately prior to such issue or sale between the original adjustment date and such readjustment date.

 

(E)                    If the original issuance of any Convertible Security or Option (excluding Convertible Securities or Options which, upon exercise, conversion or exchange thereof, would entitle the holder thereof to receive securities issued in accordance with Subsection 3(i)(ii) above), did not result in an adjustment to the applicable Conversion Price pursuant to the terms of Subsection 3(i), either because (1) the consideration per share (determined pursuant to Subsection 3(i)(iii)(C) above) of the Common Stock was equal to or greater than the applicable Conversion Price then in effect, or (2) such Convertible Security was issued before the date of filing of this Restated Certificate, are revised after the date of filing of this Restated Certificate (either automatically pursuant to the provisions contained therein or as a result of an amendment to such terms) to provide for either (A) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Convertible Security or Option or (B) any increase or decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then such Convertible Security or Option, as so amended, and the Common Stock subject thereto (determined in the manner provided in Subsection 3(i)(iii)(A) and (B) above, as applicable) shall be deemed to have been issued effective upon such increase or decrease becoming effective.

 

 

(iv)                  Waiver. Any adjustments to any of the rights, powers, preferences and other terms of a series of Series Preferred made in accordance with this Subsection 3(i) may be waived on behalf of all holders of such series by the affirmative written consent or vote of the holders of a majority of the Series Preferred then outstanding, voting together as a single, separate class on an as-converted to Common Stock basis; provided, however, that adjustments to any of the rights, powers, preferences and other terms of the Series F Preferred made in accordance with this Subsection 3(i) may be waived only by the affirmative written consent or vote of the holders of a majority of the Series F Preferred, voting together as a single, separate class on an as-converted to Common Stock basis.

 

(j)                       Certificate of Adjustments. Upon the occurrence of each adjustment of the applicable Conversion Price pursuant to this Section 3, the Company at its expense shall promptly compute such adjustment and furnish to each holder of Preferred Stock a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company shall, as promptly as practicable, upon the written request at any time of any holder of Preferred Stock, furnish to such holder a like certificate setting forth (i) any and all adjustments made to the Preferred Stock since the Original Issue Date, (ii) the applicable Conversion Price at the time in effect, and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of Preferred Stock.

 

(k)                    Notices of Record Date. In the event that the Company shall propose at any time (i) to declare any dividend or Distribution; (ii) to effect any reclassification or recapitalization; or (iii) to effect a Liquidation; then, in connection with each such event, the Company shall send to the holders of the Preferred Stock written notice at least twenty (20) days prior to the record date or effective date for such event. The notice shall specify, as the case may be, (i) the record date for such dividend, Distribution or right, and the amount and character of such dividend, Distribution or right, or (ii) the effective date on which such reclassification, recapitalization or Liquidation is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other stock or securities at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reclassification, recapitalization or Liquidation, and the amount per share and character of such exchange applicable to the Preferred Stock and the Common Stock. Any notice required by the provisions hereof to be given to a holder of shares of Preferred Stock shall be deemed sent to such holder if deposited in the United States mail, postage prepaid, and addressed to such holder at such holder’s address appearing on the books of the Company.

 

(l)                 Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then-outstanding shares of the Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then-outstanding shares of the Preferred Stock, the Company will take such corporate action as may, in the opinion of its counsel, be necessary (including, without limitation, engaging in reasonable best efforts to obtain the requisite stockholder approval of any amendment to this Restated Certificate) to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

 

 

4.                          Certain Conversion Election Rights. The rights set forth in this Section 4 apply notwithstanding any other provision of this Restated Certificate.

 

(a)                     In the event of an Automatic Conversion in connection with the closing of the first firmly underwritten public offering of the Company’s securities pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company (the “IPO”), each holder of the Company’s securities that would beneficially own (for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”)), when aggregated with affiliates with whom such holder is required to aggregate beneficial ownership for purposes of Section 13(d) of the Exchange Act, immediately following such Automatic Conversion, in excess of 9.99% of any class of securities of the Company registered or to be registered under the Exchange Act in connection with the IPO (each, a “Qualifying Holder”), may elect (the “Non-Voting Common Election Right”) in its sole discretion to convert in such Automatic Conversion any shares of Preferred Stock held by such Qualifying Holder into (i) shares of Common Stock or (ii) shares of a class of non-voting Common Stock (the “Non-Voting Common Stock”) to be newly created in connection with the IPO, subject to the Beneficial Ownership Limitation (as defined below). The “Beneficial Ownership Limitation” means that, in connection with the Non-Voting Common Election Right, a Qualifying Holder may elect to convert any shares of Preferred Stock held by such Qualifying Holder into Non-Voting Common Stock only if such conversion would not result in such Qualifying Holder beneficially owning (for purposes of Section 13(d) of the Exchange Act) less than 9.99% of the outstanding Common Stock immediately following the IPO; provided that, such percentage may be increased or decreased for each Qualifying Holder and/or its affiliates to such other percentage as such Qualifying Holder and/or its affiliates may designate in writing upon 61 days’ notice by such Qualifying Holder to the Company. The Non-Voting Common Stock shall be non-voting and convertible into Common Stock on an one (1) share to one (1) share basis (as adjusted for stock splits, combinations, reorganizations and the like following the IPO), and shall otherwise have the same terms, conditions, rights and obligations as the Common Stock.

 

5.                          Voting.

 

(a)                     Except as otherwise expressly provided herein or as required by law, the holders of Series Preferred and the holders of Common Stock all vote together and not as separate classes, including, but not limited to, with respect to any increase or decrease of the authorized shares of Common Stock. Except as otherwise required by law, holders of Common Stock shall not be entitled to vote, in their capacity as such, on any amendment to this Restated Certificate, as amended and/or restated from time to time, that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Restated Certificate or pursuant to the Delaware General Corporation Law. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares of Common Stock then outstanding) by the affirmative vote of the holders of a majority of the stock of the Company entitled to vote (voting together as a single class on an as-converted to Common Stock basis).

 

 

(b)                    Series Preferred. Each holder of shares of Series Preferred shall be entitled to the number of votes equal to the number of shares of Common Stock into which such shares of Series Preferred held by such holder could then be converted. The holders of the Series Preferred shall be entitled to notice of any stockholders’ meeting in accordance with the bylaws of the Company. Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares of Common Stock into which shares of Series Preferred held by each holder could be converted), shall be disregarded. Notwithstanding the foregoing, the Series D-1 Preferred shall not be entitled by reason of their ownership thereof to vote on any matters submitted to the stockholders of the Company other than matters submitted to such holders pursuant to Subsection 6(c) below or as required pursuant to applicable law.

 

(c)                     Common Stock. Each holder of shares of Common Stock shall be entitled to one vote for each share thereof held.

 

(d)                    Election of Directors. The holders of the Series Preferred, voting separately as a single class (on an as-converted to Common Stock basis), shall be entitled to elect five (5) directors of the Company. The holders of Common Stock, voting separately as a single class, shall be entitled to elect one (1) director of the Company. The holders of the Common Stock and the Series Preferred, voting together as a single class (on an as-converted to Common Stock basis), shall be entitled to elect all other directors of the Company. Any director elected pursuant to the preceding sentences of this Subsection 5(d) may be removed with or without cause only by the affirmative vote of the holders of the shares of the class, series or classes of stock entitled to elect such director or directors. Any vacancies on the Board shall be filled by vote of the holders of the class, series or classes that elected the director pursuant to this Subsection 5(d) whose absence created such vacancy. If the holders of shares of Series Preferred or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first and second sentence of this Subsection 5(d), then any directorship not so filled shall remain vacant until such time as the holders of the Series Preferred or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Company other than by the stockholders of the Company that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. Notwithstanding the foregoing or the provisions of Sections 223(a)(1) and 223(a)(2) of the Delaware General Corporation Law, any newly created directorships resulting from any increase in the authorized number of directors or amendment of this Restated Certificate may be filled by a majority of the directors then in office, though less than a quorum, or by a sole director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced; provided, however, that where such newly created directorship is in relation to the directors elected by the holders of a class or series of stock, the holders of shares of such class or series may override the action of the Board to fill such newly created directorship as provided for herein. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Holders of the shares of the class, series or classes of stock entitled to elect or remove a director or directors under this Subsection 5(d) may elect or remove such director or directors by affirmative vote or written consent in lieu of a meeting.

 

 

6.             Amendments and Changes.

 

(a)           Approval by Series Preferred. Notwithstanding Section 5 above and in addition to any vote otherwise required herein or by law, so long as at least 2,500,000 shares (as adjusted for stock splits, combinations, reorganizations and the like following the filing date hereof) of Series Preferred are outstanding, the approval (by vote or written consent as provided by law) of (1) the holders of a majority of the Series Preferred then outstanding, voting together as a single, separate class on an as-converted to Common Stock basis, and (2) the majority of the Board shall be necessary for effecting or validating the following actions (directly or indirectly, whether by merger, recapitalization or otherwise, or in any other manner) and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

(i)                any alteration, repeal, change or amendment of the rights, privileges or preferences of the Series Preferred in a manner that adversely affects such rights, privileges or preferences;

 

(ii)               any increase or decrease of the authorized number of shares of Common Stock, Preferred Stock or any series of Preferred Stock;

 

(iii)             any authorization, creation or issuance of (or any obligation to authorize, create or issue) any securities of the Company having rights, preferences or privileges senior to, or pari passu with, any of the rights, preferences or privileges of any Series Preferred;

 

(iv)              (i) reclassification, alteration or amendment of any existing security of the Company that is pari passu with the Series F Preferred in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series F Preferred in respect of any such right, preference, or privilege or (ii) reclassification, alteration or amendment of any existing security of the Company that is junior to the Series F Preferred in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series F Preferred in respect of any such right, preference or privilege;

 

 

(v)               any redemption or repurchase of shares of the Company’s stock or securities, except with the approval of the Board in connection with the repurchase of shares of Common Stock issued to or held by employees, consultants, officers or directors upon termination of their employment or services pursuant to agreements providing for the right of said repurchase or the exercise of a contractual right of first refusal in favor of the Company at no greater than the original purchase price thereof;

 

(vi)              any consummation of a Liquidation or an initial public offering which is not a Qualified IPO, or waiver of treatment of a transaction or series of related transactions as a Liquidation;

 

(vii)             any amendment, alteration, repeal or waiver of any provision of this Restated Certificate, as amended and/or restated from time to time, or the bylaws of the Company;

 

(viii)            any conversion of all outstanding Preferred Stock into Common Stock;

 

(ix)             any incurrence of indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, if the aggregate indebtedness of the Company for borrowed money following such action would exceed $1,000,000;

 

(x)               any change in the authorized number of directors of the Company;

 

(xi)              any action that encumbers all or substantially all of the property or business of the Company or its subsidiaries;

 

(xii)             any grant of an exclusive license for all or substantially all of the intellectual property of the Company or its subsidiaries;

 

(xiii)            the creation or adoption of any new equity compensation plan or increase the number of shares reserved under any existing equity compensation plan;

 

(xiv)             any action to permit any subsidiary to issue or obligate itself to issue, any shares of any class or series of capital stock (other than to the Company or a wholly-owned subsidiary of the Company), or sell, transfer or otherwise dispose of any capital stock of any direct or indirect subsidiary of the Company, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary;

 

(xv)              the entry into or joinder as a party to any transaction with any director or officer of the Company (other than for the payment of salary and reimbursement of expenses made in the ordinary course of business), unless approved by a majority of the directors who are disinterested in such transaction (with any interested director being required to recuse himself or herself);

 

 

(xvi)             the entry into or joinder as a party to any joint venture agreement or strategic alliances involving the sale, license, pledge or encumbrance of the Company’s assets of TVB-2640;

 

(xvii)           the purchase of, or declaration of any dividend on, any shares of the Company’s stock or securities, or the making a distribution to stockholders; or

 

(xviii)         any action to cause or permit any of its subsidiaries to, without approval of the Board, sell, issue, sponsor, create or distribute any digital tokens, cryptocurrency or other blockchain-based assets (collectively, “Tokens”), including through a pre-sale, initial coin offering, token distribution event or crowdfunding, or through the issuance of any instrument convertible into or exchangeable for Tokens.

 

(b)           Approval by Series F Preferred. Notwithstanding Section 5 above and in addition to any vote otherwise required herein or by law, so long as 65,000,000 shares (as adjusted for stock splits, combinations, reorganizations and the like following the filing date hereof) of Series F Preferred are outstanding, the approval (by vote or written consent as provided by law) of the holders of a majority of the Series F Preferred, voting together as a single, separate class on an as-converted to Common Stock basis, shall be necessary for effecting or validating the following actions (directly or indirectly, whether by merger, recapitalization or otherwise, or in any other manner) and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

(i)                any increase or decrease (other than by conversion) to the total number of authorized shares of Series F Preferred, or any issuance or sale of any shares of Series F Preferred other than pursuant to that certain Series F Preferred Stock Purchase Agreement, dated on or about the Original Issue Date, among the Company and the other parties thereto;

 

(ii)              any amendment, alteration, repeal or waiver of any provision of this Restated Certificate, as amended and/or restated from time to time, or the bylaws of the Company in a manner that adversely affects the powers, preferences or rights of the Series F Preferred;

 

(iii)             (i) reclassification, alteration or amendment of any existing security of the Company that is pari passu with the Series F Preferred in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series F Preferred in respect of any such right, preference, or privilege or (ii) reclassification, alteration or amendment of any existing security of the Company that is junior to the Series F Preferred in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series F Preferred in respect of any such right, preference or privilege;

 

(iv)               any waiver of treatment of a transaction or a series of related transactions as a Liquidation; or

 

 

(v)               any redemption or repurchase of shares of the Company’s stock or securities, except in connection with the repurchase of shares of Common Stock issued to or held by employees, consultants, officers or directors upon termination of their employment or services at no greater than the original purchase price thereof.

 

(c)            Approval by Series F Preferred Supermajority. Notwithstanding Section 5 above and in addition to any vote otherwise required herein or by law, from the date hereof through December 21, 2023, and for so long as 65,000,000 shares (as adjusted for stock splits, combinations, reorganizations and the like following the filing date hereof) of Series F Preferred are outstanding, the approval (by vote or written consent as provided by law) of the holders of at least a 75% of the outstanding shares of Series F Preferred, voting together as a single, separate class on an as-converted to Common Stock basis, shall be necessary for effecting or validating the following actions (directly or indirectly, whether by merger, recapitalization or otherwise, or in any other manner) and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

(i)                a Liquidation that results in per share proceeds to the holders of Series F Preferred of less than 2.5x of the Series F Original Issue Price; or

 

(ii)               any sale, license, pledge or encumbrance of any material intellectual property of the Company related to the Company’s primary assets of TVB-2640 and TVB-3567.

 

(d)          For so long as at least 365,250 shares of Series A Preferred, 365,250 shares of Series A’ Preferred, 652,174 shares of Series B Preferred, 652,174 shares of Series B’ Preferred, 5,707,171 shares of Series B-1 Preferred, 5,707,171 shares of Series B-1’ Preferred, 5,686,153 shares of Series C Preferred, 5,686,153 shares of Series C’ Preferred, 8,522,727 shares of Series D Preferred, 8,522,727 shares of Series D’ Preferred, 157,000,000 shares of Series E Preferred or 65,000,000 shares of Series F Preferred, as the case may be, remain outstanding (each as may be adjusted for stock splits, combinations and the like with respect to such series of the Series Preferred following the date hereof), in addition to any other vote or consent required herein or by law, the vote or written consent of the holders of at least thirty three and one-third percent (33⅓%) of the outstanding shares of the Series A Preferred and Series A’ Preferred voting together as a single class, Series B Preferred and Series B’ Preferred voting together as a single class, Series B-1 Preferred and Series B-1’ Preferred voting together as a single class, Series C Preferred and Series C’ Preferred voting together as a single class or Series D Preferred and Series D’ Preferred voting together as a single class, a majority of the outstanding shares of the Series E Preferred and a majority of the outstanding shares of the Series F Preferred, respectively and each class voting as a separate series, and the approval of a majority of the Board shall be necessary for effecting any amendment, alteration, or repeal of any provision of this Restated Certificate or the bylaws of the Company, each, as amended and/or restated from time to time, that alters or changes the voting or other powers, preferences or other special rights, privileges or restrictions of such series of the Series Preferred, whether by merger, consolidation or otherwise, so as to affect such series of the Series Preferred adversely and in a manner different than any other such series of Preferred Stock, provided, however, that a series of the Series Preferred shall not be deemed to be adversely affected as a result of the proportional differences in the respective Conversion Prices or liquidation preferences with respect to other series of Preferred Stock; provided, further that any of the foregoing acts or transactions taken or entered into without the requisite consents or votes shall be null and void ab initio, and of no force or effect

 

 

(e)           For so long as any shares of Series D-1 Preferred remain outstanding, in addition to any other vote or consent required herein or by law, the vote or written consent of the holders of at least thirty three and one-third percent (33⅓%) of the outstanding shares of the Series D-1 Preferred, and the approval of a majority of the Board shall be necessary for effecting any amendment, alteration, or repeal of any provision of this Restated Certificate or the bylaws of the Company, each, as amended and/or restated from time to time, that alters or changes the voting or other powers, preferences or other special rights, privileges or restrictions of the Series D-1 Preferred Stock, whether by merger, consolidation or otherwise, so as to affect the Series D-1 Preferred Stock adversely and in a manner different than any other such series of Preferred Stock, provided, however, that the Series D-1 Preferred Stock shall not be deemed to be adversely affected as a result of the proportional differences in the respective Conversion Prices or liquidation preferences with respect to other series of Preferred Stock.

 

7.            Redemption. The Preferred Stock is not redeemable.

 

8.            Notices. Any notice required by the provisions of this Article FOURTH to be given to the holders of Common Stock and Preferred Stock shall be in writing and shall be deemed given if deposited in the United States mail, postage prepaid, if deposited with a nationally recognized overnight courier, or if personally delivered, and addressed to each holder of record at such holder’s address appearing on the books of the Company.

 

FIFTH

 

Subject to any additional vote required by this Restated Certificate, as amended and/or restated from time to time, the Board shall have the power to adopt, amend and repeal the bylaws of the Company (except insofar as the bylaws of the Company as adopted by action of the stockholders of the Company shall otherwise provide). Any bylaws made by the Board under the powers conferred hereby may be amended or repealed by the Board or by the Company’s stockholders, and the powers conferred in this Article FIFTH shall not abrogate the right of the Company’s stockholders to adopt, amend and repeal bylaws of the Company. Each director shall be entitled to one (1) vote on each matter presented to the Board.

 

SIXTH

 

Election of Company directors need not be by written ballot unless the bylaws of the Company shall so provide.

 

SEVENTH

 

Subject to the provisions set forth in this Restated Certificate, the Company reserves the right to amend the provisions in this Restated Certificate and in any certificate amendatory hereof in the manner now or hereafter prescribed by law and this Restated Certificate, and all rights conferred on stockholders or others hereunder or thereunder are granted subject to such reservation.

 

 

EIGHTH

 

The Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of, (i) any director of the Company who is not an employee of the Company or any of its subsidiaries, or (ii) any holder of Series Preferred or any partner, member, director, stockholder, employee or agent of any such holder, other than someone who is an employee of the Company or any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Company.

 

NINTH

 

A.            The Company shall indemnify, advance expenses, and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Company or, while a director or officer of the Company, is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person. Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding) or advancement of expenses not paid in full, the Company shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in the specific case by the Board. Any amendment, repeal or modification of this Article NINTH, or adoption of any provision of this Restated Certificate inconsistent with this Article NINTH, shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

B.            The Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

 

C.           The Company is authorized to provide indemnification of agents (as defined in Section 317 of the California General Corporation Law (“CGCL”)) for breach of duty to the Company and its stockholders through provisions of the bylaws of the Company or through agreements with the agents, or through stockholder resolutions, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the CGCL, subject, at any time or times that the Company is subject to Section 2115(b) of the CGCL, to the limits on such excess indemnification set forth in Section 204 of the CGCL.

 

 

TENTH

 

A.           For purposes of Section 500 of the CGCL (to the extent applicable), in connection with any repurchase of shares of Common Stock permitted under this Restated Certificate from employees, officers, directors or consultants of the Company in connection with a termination of employment or services pursuant to agreements or arrangements approved by the Board (in addition to any other consent required under this Restated Certificate), such repurchase may be made without regard to any “preferential dividends arrears amount” or “preferential rights amount” (as those terms are defined in Section 500 of the CGCL).  Accordingly, for purposes of making any calculation under CGCL Section 500 in connection with such repurchase, the amount of any “preferential dividends arrears amount” or “preferential rights amount” (as those terms are defined therein) shall be deemed to be zero (0).

 

* * * * *

 

 

CERTIFICATE OF AMENDMENT TO 

TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF 

SAGIMET BIOSCIENCES INC.

 

SAGIMET BIOSCIENCES INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that:

 

FIRST: The name of the Corporation is Sagimet Biosciences Inc.

 

SECOND: The date on which the Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware is December 19, 2006 and the original name of this Corporation was 3-V Biosciences, Inc.

 

THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware (the “DGCL”), duly approved and adopted resolutions amending its Certificate of Incorporation as follows:

 

Article Fourth, Part A shall be amended and restated to read in its entirety as follows:

 

“FOURTH

 

A. The Company is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The aggregate number of shares that the Company shall have authority to issue is 2,982,180,170, of which 1,608,370,000 shares shall be Common Stock with the par value of $0.0001 per share (the “Common Stock”), and of which 1,373,810,170 shares shall be Preferred Stock with the par value of $0.0001 per share (the “Preferred Stock”).”

 

FOURTH: This Certificate of Amendment was duly adopted in accordance with Sections 141 and 242 of the DGCL.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its Chief Executive Officer this 27th day of September, 2022.

 

	SAGIMET BIOSCIENCES INC.
	By:	/s/ George Kemble
	Name:	George Kemble
	Title:	Chief Executive Officer

  

  

CERTIFICATE OF AMENDMENT TO

TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

SAGIMET BIOSCIENCES INC.

 

 

SAGIMET BIOSCIENCES INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that:

 

FIRST: The name of the Corporation is Sagimet Biosciences Inc.

 

SECOND: The date on which the Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware is December 19, 2006 and the original name of this Corporation was 3-V Biosciences, Inc.

 

THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware (the “DGCL”), duly approved and adopted resolutions amending its Certificate of Incorporation as follows:

 

Article Fourth, Part A shall be amended and restated to read in its entirety as follows:

 

“FOURTH

 

A. The Company is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The aggregate number of shares that the Company shall have authority to issue is 3,014,350,170, of which 1,640,540,000 shares shall be Common Stock with the par value of $0.0001 per share (the “Common Stock”), and of which 1,373,810,170 shares shall be Preferred Stock with the par value of $0.0001 per share (the “Preferred Stock”).”

 

FOURTH: This Certificate of Amendment was duly adopted in accordance with Sections 141 and 242 of the DGCL.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its Chief Executive Officer this 27^th day of March, 2023.

 

	SAGIMET BIOSCIENCES INC.
	By:	/s/ David Happel
	Name:	David Happel
	Title:	Chief Executive Officer

  

  

CERTIFICATE OF

AMENDMENT TO

TENTH AMENDED AND

RESTATED CERTIFICATE OF

INCORPORATION OF

SAGIMET BIOSCIENCES INC.

 

SAGIMET BIOSCIENCES INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Company”), hereby certifies that:

 

FIRST: The name of the Company is Sagimet Biosciences Inc.

 

SECOND: The date on which the Certificate of Incorporation of the Company was originally filed with the Secretary of State of the State of Delaware is December 19, 2006 and the original name of this Company was 3-V Biosciences, Inc.

 

THIRD: The Board of Directors of the Company, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware (the “DGCL”), duly approved and adopted resolutions amending its Certificate of Incorporation as follows:

 

I. The following paragraph shall be inserted immediately following the first paragraph of Article IV, Section A thereof:

 

“Without any other action on the part of the Company or any other person, effective immediately upon the filing of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company (the “Effective Time”), each 79.4784 shares of the Company’s Common Stock issued and outstanding (the “Old Common Stock”) shall automatically, without further action on the part of the Company or any holder of Old Common Stock, convert into one (1) fully paid and nonassessable share of Common Stock (the “New Common Stock”). The conversion described in the foregoing sentence shall be collectively referred to herein as the “Reverse Stock Split”. Any shares of Old Common Stock currently held in the Company’s treasury shall also be converted into Common Stock in accordance with the Reverse Stock Split. No fractional shares of Common Stock shall be issued upon the Reverse Stock Split. In lieu of any fractional shares to which a holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the fair market value of a share of the Common Stock as determined in good faith by the board of directors of the Company. From and after the Effective Time, any stock certificates that, immediately prior to the Effective Time, represented the shares of Old Common Stock shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent the number of shares of New Common Stock into which such Old Common Stock has been converted in the Reverse Stock Split pursuant to this Certificate of Amendment. Whether or not fractional shares will be issuable upon the Reverse Stock Split shall be determined on the basis of the number of shares of Old Common Stock represented by each certificate of Old Common Stock at the time of the Reverse Stock Split and the number of shares of New Common Stock issuable with respect to each such certificate upon the Reverse Stock Split.”

 

 

II. Article IV, Part C, Section 4(a) shall be amended and restated to read in its entirety as follows:

 

“4. Certain Conversion Election Rights. The rights set forth in this Section 4 apply notwithstanding any other provision of this Restated Certificate.

 

(a) In the event of an Automatic Conversion in connection with the closing of the first firmly underwritten public offering of the Company’s securities pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company (the “IPO”), each holder of the Company’s securities that would beneficially own (for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”)), when aggregated with affiliates with whom such holder is required to aggregate beneficial ownership for purposes of Section 13(d) of the Exchange Act, immediately following such Automatic Conversion, in excess of 4.99% of any class of securities of the Company registered or to be registered under the Exchange Act in connection with the IPO (each, a “Qualifying Holder”), may elect (the “Non-Voting Common Election Right”) in its sole discretion to convert in such Automatic Conversion any shares of Preferred Stock held by such Qualifying Holder into (i) shares of Common Stock or (ii) shares of a class of non-voting Common Stock (the “Non-Voting Common Stock”) to be newly created in connection with the IPO, subject to the Beneficial Ownership Limitation (as defined below). The “Beneficial Ownership Limitation” means that, in connection with the Non-Voting Common Election Right, a Qualifying Holder may elect to convert any shares of Preferred Stock held by such Qualifying Holder into Non-Voting Common Stock only if such conversion would not result in such Qualifying Holder beneficially owning (for purposes of Section 13(d) of the Exchange Act) less than 2% of the outstanding Common Stock immediately following the IPO; provided that, such percentage may be increased or decreased for each Qualifying Holder and/or its affiliates to such other percentage as such Qualifying Holder and/or its affiliates may designate in writing upon 61 days’ notice by such Qualifying Holder to the Company. The Non-Voting Common Stock shall be non-voting and convertible into Common Stock on an one (1) share to one (1) share basis (as adjusted for stock splits, combinations, reorganizations and the like following the IPO), and shall otherwise have the same terms, conditions, rights and obligations as the Common Stock.”

 

FOURTH: This Certificate of Amendment was duly adopted in accordance with Sections 141 and 242 of the DGCL.

 

 

IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment to be signed by its Chief Executive Officer this 7^th day of July, 2023.

 

	SAGIMET BIOSCIENCES INC.
	By:	/s/ David Happel
	Name:	David Happel
	Title:	Chief Executive Officer

  

 

Exhibit 5.1

  

July 10, 2023

  

Sagimet Biosciences Inc.

155 Bovet Road, Suite 303

San Mateo, California 94402

  

Re:      Securities Registered under Registration Statement on Form S-1

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-1 (File No. 333-272901) (as amended or supplemented, the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by Sagimet Biosciences Inc., a Delaware corporation (the “Company”), of up to 5,390,625 shares (the “Shares”) of the Company’s Series A Common Stock, $0.0001 par value per share, including Shares purchasable by the underwriters upon their exercise of an over-allotment option granted to the underwriters by the Company. The Shares are being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters (the “Underwriting Agreement”).

  

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.

 

The opinion set forth below is limited to the Delaware General Corporation Law.

  

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when delivered and paid for in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable.

  

This opinion letter and the opinion it contains shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).

  

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

  

	Very truly yours,
	/s/ Goodwin Procter llp
	GOODWIN PROCTER llp

 

Exhibit 10.5 

 

SAGIMET BIOSCIENCES INC.

 

2023 STOCK OPTION AND INCENTIVE PLAN

 

SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS

 

The name of the plan is the Sagimet Biosciences Inc. 2023 Stock Option and Incentive Plan (as amended from time to time, the “Plan”). The purpose of the Plan is to encourage and enable the officers, employees, Non-Employee Directors and Consultants of Sagimet Biosciences Inc. (the “Company”) and its Affiliates upon whose judgment, initiative and efforts the Company largely depends for the successful conduct of its business to acquire a proprietary interest in the Company. It is anticipated that providing such persons with a direct stake in the Company’s welfare will assure a closer identification of their interests with those of the Company and its stockholders, thereby stimulating their efforts on the Company’s behalf and strengthening their desire to remain with the Company.

 

The following terms shall be defined as set forth below:

 

“Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

 

“Administrator” means either the Board or the compensation committee of the Board or a similar committee performing the functions of the compensation committee and which is comprised of not less than two Non-Employee Directors who are independent.

 

“Affiliate” means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in Rule 405 of the Act. The Board will have the authority to determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing definition.

 

“Award” or “Awards,” except where referring to a particular category of grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Units, Unrestricted Stock Awards, Cash-Based Awards, and Dividend Equivalent Rights.

 

“Award Certificate” means a written or electronic document setting forth the terms and provisions applicable to an Award granted under the Plan. Each Award Certificate is subject to the terms and conditions of the Plan.

 

“Board” means the Board of Directors of the Company.

 

“Cash-Based Award” means an Award entitling the recipient to receive a cash-denominated payment.

 

“Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations.

 

 

“Consultant” means a consultant or adviser who provides bona fide services to the Company or an Affiliate as an independent contractor and who qualifies as a consultant or advisor under Instruction A.1.(a)(1) of Form S-8 under the Act.

  

“Dividend Equivalent Right” means an Award entitling the grantee to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other award to which it relates) if such shares had been issued to and held by the grantee.

 

“Effective Date” means the date on which the Plan becomes effective as set forth in Section 19.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

 

“Fair Market Value” of the Stock on any given date means the fair market value of the Stock determined in good faith by the Administrator; provided, however, that if the Stock is listed on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”), NASDAQ Global Market, The New York Stock Exchange or another national securities exchange or traded on any established market, the determination shall be made by reference to market quotations. If there are no market quotations for such date, the determination shall be made by reference to the last date preceding such date for which there are market quotations; provided further, however, that if the date for which Fair Market Value is determined is the Registration Date, the Fair Market Value shall be the “Price to the Public” (or equivalent) set forth on the cover page for the final prospectus relating to the Company’s initial public offering.

 

“Incentive Stock Option” means any Stock Option designated and qualified as an “incentive stock option” as defined in Section 422 of the Code.

 

“Non-Employee Director” means a member of the Board who is not also an employee of the Company or any Subsidiary.

 

“Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option.

 

“Option” or “Stock Option” means any option to purchase shares of Stock granted pursuant to Section 5.

 

“Registration Date” means the date upon which the registration statement on Form S-1 that is filed by the Company with respect to its initial public offering is declared effective by the Securities and Exchange Commission.

 

“Restricted Shares” means the shares of Stock underlying a Restricted Stock Award that remain subject to a risk of forfeiture or the Company’s right of repurchase.

 

“Restricted Stock Award” means an Award of Restricted Shares subject to such restrictions and conditions as the Administrator may determine at the time of grant.

 

  

“Restricted Stock Units” means an Award of stock units subject to such restrictions and conditions as the Administrator may determine at the time of grant.

  

“Sale Event” means (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii) the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company.

 

“Sale Price” means the value as determined by the Administrator of the consideration payable, or otherwise to be received by stockholders, per share of Stock pursuant to a Sale Event.

 

“Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.

 

“Service Relationship” means any relationship as an employee, director or Consultant of the Company or any Affiliate (e.g., a Service Relationship shall be deemed to continue without interruption in the event an individual’s status changes from full-time employee to part-time employee or Consultant or director or vice versa).

 

“Stock” means the Series A Common Stock, par value $0.0001 per share, of the Company, subject to adjustments pursuant to Section 3.

 

“Stock Appreciation Right” means an Award entitling the recipient to receive shares of Stock (or cash, to the extent explicitly provided for in the applicable Award Certificate) having a value equal to the excess of the Fair Market Value of the Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.

 

“Subsidiary” means any corporation or other entity (other than the Company) in which the Company has at least a 50 percent interest, either directly or indirectly.

 

“Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power of all classes of stock of the Company or any parent or subsidiary corporation.

 

“Unrestricted Stock Award” means an Award of shares of Stock free of any restrictions.

 

SECTION 2. ADMINISTRATION OF PLAN; ADMINISTRATOR AUTHORITY TO SELECT GRANTEES AND DETERMINE AWARDS

 

(a)            Administration of Plan. The Plan shall be administered by the Administrator.

 

 

(b)            Powers of Administrator. The Administrator shall have the power and authority to grant Awards consistent with the terms of the Plan, including the power and authority:

  

(i)            to select the individuals to whom Awards may from time to time be granted;

 

(ii)           to determine the time or times of grant, and the extent, if any, of Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Units, Unrestricted Stock Awards, Cash-Based Awards, and Dividend Equivalent Rights, or any combination of the foregoing, granted to any one or more grantees;

 

(iii)          to determine the number of shares of Stock to be covered by any Award;

 

(iv)          to determine and modify from time to time the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and grantees, and to approve the forms of Award Certificates;

 

(v)           to accelerate at any time the exercisability or vesting of all or any portion of any Award;

 

(vi)          subject to the provisions of Section 5(c) or Section 6(d), as applicable, to extend at any time the period in which Stock Options and Stock Appreciation Rights may be exercised; and

 

(vii)         at any time to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including related written instruments); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.

 

All decisions and interpretations of the Administrator shall be binding on all persons, including the Company and Plan grantees.

 

(c)            Delegation of Authority to Grant Awards. Subject to applicable law, the Administrator, in its discretion, may delegate to a committee consisting of one or more officers of the Company, including the Chief Executive Officer (the “CEO”) of the Company (the CEO or such committee, as applicable, the “Officer Committee”), all or part of the Administrator’s authority and duties with respect to the granting of Awards (the “Delegated Awards”) to individuals who are (i) not subject to the reporting and other provisions of Section 16 of the Exchange Act and (ii) not members of the Officer Committee. Any such delegation by the Administrator shall include a limitation as to the amount of Stock underlying Awards that may be granted during the period of the delegation and shall contain guidelines as to the determination of the exercise price and the vesting criteria. The Administrator may revoke or amend the terms of a delegation at any time but such action shall not invalidate any prior actions of the Administrator’s delegate or delegates that were consistent with the terms of the Plan. Additionally, in order to evidence the Officer Committee’s approval of Delegated Award grants pursuant to any delegation of authority, the Company shall compile a record documenting the Officer Committee’s approval of Delegated Award grants. Such record will list the name of each grantee, the type and amount of Delegated Awards approved for grant, the grant date, the vesting schedule for the Delegated Awards and any other non-standard material terms.

 

  

(d)            Award Certificate. Awards under the Plan shall be evidenced by Award Certificates that set forth the terms, conditions and limitations for each Award which may include, without limitation, the term of an Award and the provisions applicable in the event employment or service terminates.

 

(e)            Indemnification. Neither the Board nor the Administrator, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Company’s articles or bylaws or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company.

 

(f)            Foreign Award Recipients. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company and its Subsidiaries operate or have employees or other individuals eligible for Awards, the Administrator, in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries shall be covered by the Plan; (ii) determine which individuals outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to individuals outside the United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent the Administrator determines such actions to be necessary or advisable (and such subplans and/or modifications shall be attached to this Plan as appendices); provided, however, that no such subplans and/or modifications shall increase the share limitations contained in Section 3(a) hereof; and (v) take any action, before or after an Award is made, that the Administrator determines to be necessary or advisable to obtain approval or comply with any local governmental regulatory exemptions or approvals. Notwithstanding the foregoing, the Administrator may not take any actions hereunder, and no Awards shall be granted, that would violate the Exchange Act or any other applicable United States securities law, the Code, or any other applicable United States governing statute or law.

 

 

SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION

 

(a)            Stock Issuable. The maximum number of shares of Stock reserved and available for issuance under the Plan shall be 2,585,968 shares (the “Initial Limit”), subject to adjustment as provided in this Section 3, plus on January 1, 2024 and each January 1 thereafter, the number of shares of Stock reserved and available for issuance under the Plan shall be cumulatively increased by (i) four (4%) percent of the number of shares of Stock issued and outstanding on the immediately preceding December 31 or (ii) such lesser number of shares as determined by the Administrator (the “Annual Increase”). Subject to such overall limitation, the maximum aggregate number of shares of Stock that may be issued in the form of Incentive Stock Options shall not exceed the Initial Limit, as cumulatively increased on January 1, 2024 and each January 1 thereafter by the lesser of the Annual Increase for such year or 2,585,968 shares of Stock, subject in all cases to adjustment as provided in Section 3. For purposes of this limitation, the shares of Stock underlying any awards under the Plan that are forfeited, canceled, held back upon exercise of an option or settlement of an award to cover the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan and, to the extent permitted under Section 422 of the Code and the regulations promulgated thereunder, the shares of Stock that may be issued as Incentive Stock Options. In the event the Company repurchases shares of Stock on the open market, such shares shall not be added to the shares of Stock available for issuance under the Plan. Subject to such overall limitations, shares of Stock may be issued up to such maximum number pursuant to any type or types of Award. The shares available for issuance under the Plan may be authorized but unissued shares of Stock or shares of Stock reacquired by the Company.

  

(b)            Changes in Stock. Subject to Section 3(c) hereof, if, as a result of any reorganization, recapitalization, reclassification, stock dividend, cash dividend, stock split, reverse stock split or other similar change in the Company’s capital stock, the outstanding shares of Stock are increased or decreased or are exchanged for a different number or kind of shares or other securities of the Company, or additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Stock or other securities, or, if, as a result of any merger or consolidation, sale of all or substantially all of the assets of the Company, the outstanding shares of Stock are converted into or exchanged for securities of the Company or any successor entity (or a parent or subsidiary thereof), the Administrator shall make an appropriate or proportionate adjustment in (i) the maximum number of shares reserved for issuance under the Plan, including the maximum number of shares that may be issued in the form of Incentive Stock Options, (ii) the number and kind of shares or other securities subject to any then outstanding Awards under the Plan, (iii) the repurchase price, if any, per share subject to each outstanding Restricted Stock Award, and (iv) the exercise price for each share subject to any then outstanding Stock Options and Stock Appreciation Rights under the Plan, without changing the aggregate exercise price (i.e., the exercise price multiplied by the number of shares subject to Stock Options and Stock Appreciation Rights) as to which such Stock Options and Stock Appreciation Rights remain exercisable. The Administrator shall also make equitable or proportionate adjustments in the number of shares subject to outstanding Awards and the exercise price and the terms of outstanding Awards to take into consideration cash dividends paid other than in the ordinary course or any other extraordinary corporate event. The adjustment by the Administrator shall be final, binding and conclusive. No fractional shares of Stock shall be issued under the Plan resulting from any such adjustment, but the Administrator in its discretion may make a cash payment in lieu of fractional shares.

  

  

(c)            Mergers and Other Transactions. In the case of and subject to the consummation of a Sale Event, the parties thereto may cause the assumption or continuation of Awards theretofore granted by the successor entity, or the substitution of such Awards with new Awards of the successor entity or parent thereof, with appropriate adjustment as to the number and kind of shares and, if appropriate, the per share exercise prices, as such parties shall agree. To the extent the parties to such Sale Event do not provide for the assumption, continuation or substitution of Awards, upon the effective time of the Sale Event, the Plan and all outstanding Awards granted hereunder shall terminate. In such case, except as may be otherwise provided in the relevant Award Certificate, all Awards with time-based vesting, conditions or restrictions shall become fully vested and exercisable or nonforfeitable as of the effective time of the Sale Event, and all Awards with conditions and restrictions relating to the attainment of performance goals may become vested and exercisable or nonforfeitable in connection with a Sale Event in the Administrator’s discretion or to the extent specified in the relevant Award Certificate. In the event of such termination, (i) the Company shall have the option (in its sole discretion) to make or provide for a payment, in cash or in kind, to the grantees holding Options and Stock Appreciation Rights, in exchange for the cancellation thereof, in an amount equal to the difference between (A) the Sale Price multiplied by the number of shares of Stock subject to outstanding Options and Stock Appreciation Rights (to the extent then exercisable at prices not in excess of the Sale Price) and (B) the aggregate exercise price of all such outstanding Options and Stock Appreciation Rights (provided that, in the case of an Option or Stock Appreciation Right with an exercise price equal to or greater than the Sale Price, such Option or Stock Appreciation Right shall be cancelled for no consideration); or (ii) each grantee shall be permitted, within a specified period of time prior to the consummation of the Sale Event as determined by the Administrator, to exercise all outstanding Options and Stock Appreciation Rights (to the extent then exercisable) held by such grantee. The Company shall also have the option (in its sole discretion) to make or provide for a payment, in cash or in kind, to the grantees holding other Awards in an amount equal to the Sale Price multiplied by the number of vested shares of Stock under such Awards.

  

(d)            Maximum Awards to Non-Employee Directors. Notwithstanding anything to the contrary in this Plan, the value of all Awards awarded under this Plan and all other cash compensation paid by the Company to any Non-Employee Director in any calendar year for services as a Non-Employee Director shall not exceed $500,000; provided, however, that such amount shall be $750,000 for the calendar year in which the applicable Non-Employee Director is initially elected or appointed to the Board. For the purpose of these limitations, the value of any Award shall be its grant date fair value, as determined in accordance with ASC 718 or successor provision but excluding the impact of estimated forfeitures related to service-based vesting provisions.

 

SECTION 4. ELIGIBILITY

 

Grantees under the Plan will be such employees, Non-Employee Directors or Consultants of the Company and its Affiliates as are selected from time to time by the Administrator in its sole discretion; provided that Awards may not be granted to employees, Directors or Consultants who are providing services only to any “parent” of the Company, as such term is defined in Rule 405 of the Act, unless (i) the stock underlying the Awards is treated as “service recipient stock” under Section 409A or (ii) the Company, in consultation with its legal counsel, has determined that such Awards are exempt from or otherwise comply with Section 409A.

 

  

SECTION 5. STOCK OPTIONS

 

(a)            Award of Stock Options. The Administrator may grant Stock Options under the Plan. Any Stock Option granted under the Plan shall be in such form as the Administrator may from time to time approve.

 

Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted only to employees of the Company or any Subsidiary that is a “subsidiary corporation” within the meaning of Section 424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option.

 

Stock Options granted pursuant to this Section 5 shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable. If the Administrator so determines, Stock Options may be granted in lieu of cash compensation at the optionee’s election, subject to such terms and conditions as the Administrator may establish.

 

(b)            Exercise Price. The exercise price per share for the Stock covered by a Stock Option granted pursuant to this Section 5 shall be determined by the Administrator at the time of grant but shall not be less than 100 percent of the Fair Market Value on the date of grant. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the exercise price of such Incentive Stock Option shall be not less than 110 percent of the Fair Market Value on the grant date. Notwithstanding the foregoing, Stock Options may be granted with an exercise price per share that is less than 100 percent of the Fair Market Value on the date of grant (i) pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code, (ii) to individuals who are not subject to U.S. income tax on the date of grant or (iii) if the Stock Option is otherwise compliant with Section 409A.

 

(c)            Option Term. The term of each Stock Option shall be fixed by the Administrator, but no Stock Option shall be exercisable more than ten years after the date the Stock Option is granted. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the date of grant.

 

(d)            Exercisability; Rights of a Stockholder. Stock Options shall become exercisable at such time or times, whether or not in installments, as shall be determined by the Administrator at or after the grant date. The Administrator may at any time accelerate the exercisability of all or any portion of any Stock Option. An optionee shall have the rights of a stockholder only as to shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options.

 

(e)            Method of Exercise. Stock Options may be exercised in whole or in part, by giving written or electronic notice of exercise to the Company, specifying the number of shares to be purchased. Payment of the purchase price may be made by one or more of the following methods except to the extent otherwise provided in the Award Certificate:

 

(i)            In cash, by certified or bank check or other instrument acceptable to the Administrator;

 

  

(ii)           Through the delivery (or attestation to the ownership following such procedures as the Company may prescribe) of shares of Stock that are not then subject to restrictions under any Company plan. Such surrendered shares shall be valued at Fair Market Value on the exercise date;

 

(iii)          By the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company for the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Company shall prescribe as a condition of such payment procedure; or

 

(iv)          With respect to Stock Options that are not Incentive Stock Options, by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price.

 

Payment instruments will be received subject to collection. The transfer to the optionee on the records of the Company or of the transfer agent of the shares of Stock to be purchased pursuant to the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser acting in his stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such shares and the fulfillment of any other requirements contained in the Award Certificate or applicable provisions of laws (including the satisfaction of any withholding taxes that the Company is obligated to withhold with respect to the optionee). In the event an optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the optionee upon the exercise of the Stock Option shall be net of the number of attested shares. In the event that the Company establishes, for itself or using the services of a third party, an automated system for the exercise of Stock Options, such as a system using an internet website or interactive voice response, then the paperless exercise of Stock Options may be permitted through the use of such an automated system.

 

(f)            Annual Limit on Incentive Stock Options. To the extent required for “incentive stock option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the time of grant) of the shares of Stock with respect to which Incentive Stock Options granted under this Plan and any other plan of the Company or its parent and subsidiary corporations become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000. To the extent that any Stock Option exceeds this limit, it shall constitute a Non-Qualified Stock Option.

 

SECTION 6. STOCK APPRECIATION RIGHTS

 

(a)            Award of Stock Appreciation Rights. The Administrator may grant Stock Appreciation Rights under the Plan. A Stock Appreciation Right is an Award entitling the recipient to receive shares of Stock (or cash, to the extent explicitly provided for in the applicable Award Certificate) having a value equal to the excess of the Fair Market Value of a share of Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.

 

  

(b)            Exercise Price of Stock Appreciation Rights. The exercise price of a Stock Appreciation Right shall not be less than 100 percent of the Fair Market Value of the Stock on the date of grant. Notwithstanding the foregoing, Stock Appreciation Rights may be granted with an exercise price per share that is less than 100 percent of the Fair Market Value on the date of grant (i) pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code, (ii) to individuals who are not subject to U.S. income tax on the date of grant, or (iii) if the Stock Appreciation Right is otherwise compliant with Section 409A.

 

(c)            Grant and Exercise of Stock Appreciation Rights. Stock Appreciation Rights may be granted by the Administrator independently of any Stock Option granted pursuant to Section 5 of the Plan.

 

(d)            Terms and Conditions of Stock Appreciation Rights. Stock Appreciation Rights shall be subject to such terms and conditions as shall be determined on the date of grant by the Administrator. The term of a Stock Appreciation Right may not exceed ten years. The terms and conditions of each such Award shall be determined by the Administrator, and such terms and conditions may differ among individual Awards and grantees.

 

SECTION 7. RESTRICTED STOCK AWARDS

 

(a)            Nature of Restricted Stock Awards. The Administrator may grant Restricted Stock Awards under the Plan. A Restricted Stock Award is any Award of Restricted Shares subject to such restrictions and conditions as the Administrator may determine at the time of grant. Conditions may be based on continuing employment (or other Service Relationship) and/or achievement of pre-established performance goals and objectives.

 

(b)            Rights as a Stockholder. Upon the grant of the Restricted Stock Award and payment of any applicable purchase price, if any, a grantee shall have the rights of a stockholder with respect to the voting of the Restricted Shares and receipt of dividends; provided that if the lapse of restrictions with respect to the Restricted Stock Award is tied to the attainment of performance goals, any dividends paid by the Company during the performance period shall accrue and shall not be paid to the grantee until and to the extent the performance goals are met with respect to the Restricted Stock Award. Unless the Administrator shall otherwise determine, (i) uncertificated Restricted Shares shall be accompanied by a notation on the records of the Company or the transfer agent to the effect that they are subject to forfeiture until such Restricted Shares are vested as provided in Section 7(d) below, and (ii) certificated Restricted Shares shall remain in the possession of the Company until such Restricted Shares are vested as provided in Section 7(d) below, and the grantee shall be required, as a condition of the grant, to deliver to the Company such instruments of transfer as the Administrator may prescribe.

 

 

(c)            Restrictions. Restricted Shares may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein or in the Restricted Stock Award Certificate. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, if a grantee’s employment (or other Service Relationship) with the Company and its Subsidiaries terminates for any reason, any Restricted Shares that have not vested at the time of termination shall automatically and without any requirement of notice to such grantee from or other action by or on behalf of, the Company be deemed to have been reacquired by the Company at their original purchase price (if any) from such grantee or such grantee’s legal representative simultaneously with such termination of employment (or other Service Relationship), and thereafter shall cease to represent any ownership of the Company by the grantee or rights of the grantee as a stockholder. Following such deemed reacquisition of Restricted Shares that are represented by physical certificates, a grantee shall surrender such certificates to the Company upon request without consideration.

  

(d)            Vesting of Restricted Shares. The Administrator at the time of grant shall specify the date or dates and/or the attainment of pre-established performance goals, objectives and other conditions on which the non-transferability of the Restricted Shares and the Company’s right of repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or the attainment of such pre-established performance goals, objectives and other conditions, the shares on which all restrictions have lapsed shall no longer be Restricted Shares and shall be deemed “vested.”

 

SECTION 8. RESTRICTED STOCK UNITS

 

(a)            Nature of Restricted Stock Units. The Administrator may grant Restricted Stock Units under the Plan. A Restricted Stock Unit is an Award of stock units that may be settled in shares of Stock (or cash, to the extent explicitly provided for in the Award Certificate) upon the satisfaction of such restrictions and conditions at the time of grant. Conditions may be based on continuing employment (or other Service Relationship) and/or achievement of pre-established performance goals and objectives. The terms and conditions of each such Award shall be determined by the Administrator, and such terms and conditions may differ among individual Awards and grantees. Except in the case of Restricted Stock Units with a deferred settlement date that complies with Section 409A, at the end of the vesting period, the Restricted Stock Units, to the extent vested, shall be settled in the form of shares of Stock (or cash, to the extent explicitly provided for in the Award Certificate). Restricted Stock Units with deferred settlement dates are subject to Section 409A and shall contain such additional terms and conditions as the Administrator shall determine in its sole discretion in order to comply with the requirements of Section 409A.

 

(b)            Election to Receive Restricted Stock Units in Lieu of Compensation. The Administrator may, in its sole discretion, permit a grantee to elect to receive a portion of future cash compensation otherwise due to such grantee in the form of an award of Restricted Stock Units. Any such election shall be made in writing and shall be delivered to the Company no later than the date specified by the Administrator and in accordance with Section 409A and such other rules and procedures established by the Administrator. Any such future cash compensation that the grantee elects to defer shall be converted to a fixed number of Restricted Stock Units based on the Fair Market Value of Stock on the date the compensation would otherwise have been paid to the grantee if such payment had not been deferred as provided herein. The Administrator shall have the sole right to determine whether and under what circumstances to permit such elections and to impose such limitations and other terms and conditions thereon as the Administrator deems appropriate. Any Restricted Stock Units that are elected to be received in lieu of cash compensation shall be fully vested, unless otherwise provided in the Award Certificate.

 

  

(c)            Rights as a Stockholder. A grantee shall have the rights as a stockholder only as to shares of Stock acquired by the grantee upon settlement of Restricted Stock Units; provided, however, that the grantee may be credited with Dividend Equivalent Rights with respect to the stock units underlying his or her Restricted Stock Units, subject to the provisions of Section 11 and such terms and conditions as the Administrator may determine.

 

(d)            Termination. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, a grantee’s right in all Restricted Stock Units that have not vested shall automatically terminate upon the grantee’s termination of employment (or cessation of Service Relationship) with the Company and its Subsidiaries for any reason.

 

SECTION 9. UNRESTRICTED STOCK AWARDS

 

Grant or Sale of Unrestricted Stock. The Administrator may grant (or sell at par value or such higher purchase price determined by the Administrator) an Unrestricted Stock Award under the Plan. An Unrestricted Stock Award is an Award pursuant to which the grantee may receive shares of Stock free of any restrictions under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee.

 

SECTION 10. CASH-BASED AWARDS

 

Grant of Cash-Based Awards. The Administrator may grant Cash-Based Awards under the Plan. A Cash-Based Award is an Award that entitles the grantee to a payment in cash upon the attainment of specified performance goals. The Administrator shall determine the maximum duration of the Cash-Based Award, the amount of cash to which the Cash-Based Award pertains, the conditions upon which the Cash-Based Award shall become vested or payable, and such other provisions as the Administrator shall determine. Each Cash-Based Award shall specify a cash-denominated payment amount, formula or payment ranges as determined by the Administrator. Payment, if any, with respect to a Cash-Based Award shall be made in accordance with the terms of the Award and may be made in cash.

 

 

SECTION 11. DIVIDEND EQUIVALENT RIGHTS

 

(a)            Dividend Equivalent Rights. The Administrator may grant Dividend Equivalent Rights under the Plan. A Dividend Equivalent Right is an Award entitling the grantee to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other Award to which it relates) if such shares had been issued to the grantee. A Dividend Equivalent Right may be granted hereunder to any grantee as a component of an award of Restricted Stock Units or as a freestanding award. The terms and conditions of Dividend Equivalent Rights shall be specified in the Award Certificate. Dividend equivalents credited to the holder of a Dividend Equivalent Right may be paid currently or may be deemed to be reinvested in additional shares of Stock, which may thereafter accrue additional equivalents. Any such reinvestment shall be at Fair Market Value on the date of reinvestment or such other price as may then apply under a dividend reinvestment plan sponsored by the Company, if any. Dividend Equivalent Rights may be settled in cash or shares of Stock or a combination thereof, in a single installment or installments. A Dividend Equivalent Right granted as a component of an Award of Restricted Stock Units shall provide that such Dividend Equivalent Right shall be settled only upon settlement or payment of, or lapse of restrictions on, such other Award, and that such Dividend Equivalent Right shall expire or be forfeited or annulled under the same conditions as such other Award.

  

(b)            Termination. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, a grantee’s rights in all Dividend Equivalent Rights shall automatically terminate upon the grantee’s termination of employment (or cessation of Service Relationship) with the Company and its Subsidiaries for any reason.

 

SECTION 12. Transferability of Awards

 

(a)            Transferability. Except as provided in Section 12(b) below, during a grantee’s lifetime, his or her Awards shall be exercisable only by the grantee, or by the grantee’s legal representative or guardian in the event of the grantee’s incapacity. No Awards shall be sold, assigned, transferred or otherwise encumbered or disposed of by a grantee other than by will or by the laws of descent and distribution or pursuant to a domestic relations order. No Awards shall be subject, in whole or in part, to attachment, execution, or levy of any kind, and any purported transfer in violation hereof shall be null and void.

 

(b)            Administrator Action. Notwithstanding Section 12(a), the Administrator, in its discretion, may provide either in the Award Certificate regarding a given Award or by subsequent written approval that the grantee (who is an employee or director) may transfer his or her Non-Qualified Stock Options to his or her immediate family members, to trusts for the benefit of such family members, or to partnerships in which such family members are the only partners, provided that the transferee agrees in writing with the Company to be bound by all of the terms and conditions of this Plan and the applicable Award. In no event may an Award be transferred by a grantee for value.

 

(c)            Family Member. For purposes of Section 12(b), “family member” shall mean a grantee’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the grantee’s household (other than a tenant of the grantee), a trust in which these persons (or the grantee) have more than 50 percent of the beneficial interest, a foundation in which these persons (or the grantee) control the management of assets, and any other entity in which these persons (or the grantee) own more than 50 percent of the voting interests.

 

 

(d)            Designation of Beneficiary. To the extent permitted by the Company, each grantee to whom an Award has been made under the Plan may designate a beneficiary or beneficiaries to exercise any Award or receive any payment under any Award payable on or after the grantee’s death. Any such designation shall be on a form provided for that purpose by the Administrator and shall not be effective until received by the Administrator. If no beneficiary has been designated by a deceased grantee, or if the designated beneficiaries have predeceased the grantee, the beneficiary shall be the grantee’s estate.

  

SECTION 13. TAX WITHHOLDING

 

(a)            Payment by Grantee. Each grantee shall, no later than the date as of which the value of an Award or of any Stock or other amount received thereunder first becomes includable in the gross income of the grantee for income tax purposes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company with respect to such income. The Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to deliver evidence of book entry (or stock certificates) to any grantee is subject to and conditioned on tax withholding obligations being satisfied by the grantee.

 

(b)            Payment in Stock. The Administrator may require the Company’s tax withholding obligation to be satisfied, in whole or in part, by the Company withholding from shares of Stock to be issued pursuant to any Award a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due; provided, however, that the amount withheld does not exceed the maximum statutory tax rate or such lesser amount as is necessary to avoid liability accounting treatment. For purposes of share withholding, the Fair Market Value of withheld shares shall be determined in the same manner as the value of Stock includible in income of the grantees. The Administrator may also require the Company’s tax withholding obligation to be satisfied, in whole or in part, by an arrangement whereby a certain number of shares of Stock issued pursuant to any Award are immediately sold and proceeds from such sale are remitted to the Company in an amount that would satisfy the withholding amount due.

 

SECTION 14. Section 409A awards

 

Awards are intended to be exempt from Section 409A to the greatest extent possible and to otherwise comply with Section 409A. The Plan and all Awards shall be interpreted in accordance with such intent. To the extent that any Award is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional rules and requirements as specified by the Administrator from time to time in order to comply with Section 409A. In this regard, if any amount under a 409A Award is payable upon a “separation from service” (within the meaning of Section 409A) to a grantee who is then considered a “specified employee” (within the meaning of Section 409A), then no such payment shall be made prior to the date that is the earlier of (i) six months and one day after the grantee’s separation from service, or (ii) the grantee’s death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A. Further, the settlement of any 409A Award may not be accelerated except to the extent permitted by Section 409A. The Company makes no representation that any or all of the payments or benefits described in the Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

 

  

SECTION 15. TERMINATION OF SERVICE RELATIONSHIP, TRANSFER, LEAVE OF ABSENCE, ETC.

 

(a)            Termination of Service Relationship. If the grantee’s Service Relationship is with an Affiliate and such Affiliate ceases to be an Affiliate, the grantee shall be deemed to have terminated his or her Service Relationship for purposes of the Plan.

 

(b)            For purposes of the Plan, the following events shall not be deemed a termination of a Service Relationship:

 

(i)            a transfer to the employment of the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another; or

 

(ii)           an approved leave of absence for military service or sickness, or for any other purpose approved by the Company, if the employee’s right to re-employment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Administrator otherwise so provides in writing.

 

SECTION 16. AMENDMENTS AND TERMINATION

 

The Board may, at any time, amend or discontinue the Plan and the Administrator may, at any time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall materially and adversely affect rights under any outstanding Award without the holder’s consent. The Administrator is specifically authorized to exercise its discretion to reduce the exercise price of outstanding Stock Options or Stock Appreciation Rights or effect the repricing of such Awards through cancellation and re-grants. To the extent required under the rules of any securities exchange or market system on which the Stock is listed, to the extent determined by the Administrator to be required by the Code to ensure that Incentive Stock Options granted under the Plan are qualified under Section 422 of the Code, Plan amendments shall be subject to approval by Company stockholders. Nothing in this Section 16 shall limit the Administrator’s authority to take any action permitted pursuant to Section 3(b) or 3(c).

 

SECTION 17. STATUS OF PLAN

 

With respect to the portion of any Award that has not been exercised and any payments in cash, Stock or other consideration not received by a grantee, a grantee shall have no rights greater than those of a general creditor of the Company unless the Administrator shall otherwise expressly determine in connection with any Award or Awards. In its sole discretion, the Administrator may authorize the creation of trusts or other arrangements to meet the Company’s obligations to deliver Stock or make payments with respect to Awards hereunder, provided that the existence of such trusts or other arrangements is consistent with the foregoing sentence.

 

 

SECTION 18. GENERAL PROVISIONS

  

(a)            No Distribution. The Administrator may require each person acquiring Stock pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the shares without a view to distribution thereof.

 

(b)            Issuance of Stock. To the extent certificated, stock certificates to grantees under this Plan shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have mailed such certificates in the United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company. Uncertificated Stock shall be deemed delivered for all purposes when the Company or a Stock transfer agent of the Company shall have given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company, notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records). Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any evidence of book entry or certificates evidencing shares of Stock pursuant to the exercise or settlement of any Award, unless and until the Administrator has determined, with advice of counsel (to the extent the Administrator deems such advice necessary or advisable), that the issuance and delivery is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed, quoted or traded. Any Stock issued pursuant to the Plan shall be subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or advisable to comply with federal, state or foreign jurisdiction, securities or other laws, rules and quotation system on which the Stock is listed, quoted or traded. The Administrator may place legends on any Stock certificate or notations on any book entry to reference restrictions applicable to the Stock. In addition to the terms and conditions provided herein, the Administrator may require that an individual make such reasonable covenants, agreements, and representations as the Administrator, in its discretion, deems necessary or advisable in order to comply with any such laws, regulations, or requirements. The Administrator shall have the right to require any individual to comply with any timing or other restrictions with respect to the settlement or exercise of any Award, including a window-period limitation, as may be imposed in the discretion of the Administrator.

 

(c)            No Fractional Shares. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any Award, and the Administrator shall determine whether cash, other securities or other property shall be paid or transferred in lieu of any fractional shares, or whether such fractional shares or any rights thereto shall be canceled, terminated or otherwise eliminated.

 

(d)            Stockholder Rights. Until Stock is deemed delivered in accordance with Section 18(b), no right to vote or receive dividends or any other rights of a stockholder will exist with respect to shares of Stock to be issued in connection with an Award, notwithstanding the exercise of a Stock Option or any other action by the grantee with respect to an Award.

 

(e)            Other Compensation Arrangements; No Employment Rights. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, including trusts, and such arrangements may be either generally applicable or applicable only in specific cases. The adoption of this Plan and the grant of Awards do not confer upon any service provider any right to continued Service Relationship with the Company or any Subsidiary.

 

  

(f)            Trading Policy Restrictions. Option exercises and other Awards under the Plan shall be subject to the Company’s insider trading policies and procedures, as in effect from time to time.

 

(g)            Clawback Policy. A participant’s rights with respect to any Award hereunder shall in all events be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (i) any right that the Company may have under any Company clawback, forfeiture or recoupment policy as in effect from time to time or other agreement or arrangement with a grantee, or (ii) applicable law.

 

SECTION 19. EFFECTIVE DATE OF PLAN

 

This Plan shall become effective upon the date immediately preceding the Registration Date following stockholder approval in accordance with applicable state law, the Company’s bylaws and articles of incorporation, and applicable stock exchange rules. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is approved by the Board.

 

SECTION 20. GOVERNING LAW

 

This Plan and all Awards and actions taken thereunder shall be governed by, and construed in accordance with, the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, applied without regard to conflict of law principles.

 

 

Exhibit 10.9

 

SAGIMET BIOSCIENCES INC.

 

2023 EMPLOYEE STOCK PURCHASE PLAN

 

The purpose of the Sagimet Biosciences Inc. 2023 Employee Stock Purchase Plan (the “Plan”) is to provide eligible employees of Sagimet Biosciences Inc. (the “Company”) and each Designated Subsidiary (as defined in Section 11) with opportunities to purchase shares of the Company’s Series A common stock, par value $0.0001 per share (the “Common Stock”). An aggregate of 215,497 shares of Common Stock have been approved and reserved for this purpose, plus on January 1, 2024, and each January 1 thereafter through January 1, 2033, the number of shares of Common Stock reserved and available for issuance under the Plan shall be cumulatively increased by the least of (i) 215,497 shares of Common Stock, (ii) one percent (1%) of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31st, or (iii) such number of shares of Common Stock as determined by the Administrator.

 

The Plan includes two components: a Code Section 423 Component (the “423 Component”) and a non-Code Section 423 Component (the “Non-423 Component”). It is intended for the 423 Component to constitute an “employee stock purchase plan” within the meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and the 423 Component shall be interpreted in accordance with that intent. Under the Non-423 Component, which does not qualify as an “employee stock purchase plan” within the meaning of Section 423(b) of the Code, options will be granted pursuant to rules, procedures or sub-plans adopted by the Administrator designed to comply with applicable laws or to achieve tax efficiency, or other objectives for eligible employees. Except as otherwise provided herein, the Non-423 Component will operate and be administered in the same manner as the 423 Component.

 

1.            Administration. The Plan will be administered by the person or persons (the “Administrator”) appointed by the Company’s Board of Directors (the “Board”) for such purpose. The Administrator has authority at any time to: (i) adopt, alter and repeal such rules, guidelines and practices for the administration of the Plan and for its own acts and proceedings as it shall deem advisable; (ii) interpret the terms and provisions of the Plan; (iii) make all determinations it deems advisable for the administration of the Plan; (iv) decide all disputes arising in connection with the Plan; and (v) otherwise supervise the administration of the Plan. All interpretations and decisions of the Administrator shall be binding on all persons, including the Company and the Participants. No member of the Board or individual exercising administrative authority with respect to the Plan shall be liable for any action or determination made in good faith with respect to the Plan or any option granted hereunder.

  

 

2.             Offerings. The Company may make one or more offerings to eligible employees to purchase Common Stock under the Plan (“Offerings”). Unless otherwise determined by the Administrator, the initial Offering will begin and end on dates to be determined by the Administrator. Thereafter, unless otherwise determined by the Administrator, an Offering will begin on the first business day occurring on or after each May 1 and November 1 and will end on the last business day occurring on or before the following October 31 and April 30, respectively. The Administrator may, in its discretion, designate a different period for any Offering, provided that no Offering shall exceed one year in duration or overlap any other Offering.

 

3.            Eligibility. All individuals classified as employees on the payroll records of the Company and each Designated Subsidiary are eligible to participate in any one or more of the Offerings under the Plan, provided that as of the first day of the applicable Offering (the “Offering Date”) they are customarily employed by the Company or a Designated Subsidiary. Notwithstanding any other provision herein, individuals who are not contemporaneously classified as employees of the Company or a Designated Subsidiary for purposes of the Company’s or applicable Designated Subsidiary’s payroll system are not considered to be eligible employees of the Company or any Designated Subsidiary and shall not be eligible to participate in the Plan. In the event any such individuals are reclassified as employees of the Company or a Designated Subsidiary for any purpose, including, without limitation, common law or statutory employees, by any action of any third party, including, without limitation, any government agency, or as a result of any private lawsuit, action or administrative proceeding, such individuals shall, notwithstanding such reclassification, remain ineligible for participation. Notwithstanding the foregoing, the exclusive means for individuals who are not contemporaneously classified as employees of the Company or a Designated Subsidiary on the Company’s or Designated Subsidiary’s payroll system to become eligible to participate in this Plan is through an amendment to this Plan, duly executed by the Company, which specifically renders such individuals eligible to participate herein.

 

4.            Participation.

 

(a)            Participants. An eligible employee who is not a Participant in any prior Offering may participate in a subsequent Offering by submitting an enrollment form to his or her appropriate payroll location at least 15 business days before the Offering Date (or by such other deadline as shall be established by the Administrator for the Offering).

 

(b)            Enrollment. The enrollment form (which may be in an electronic format or such other method as determined by the Administrator) will (a) state a whole percentage or amount to be deducted from an eligible employee’s Compensation (as defined in Section 11) per pay period, (b) authorize the purchase of Common Stock in each Offering in accordance with the terms of the Plan and (c) specify the exact name or names in which shares of Common Stock purchased for such individual are to be issued pursuant to Section 10. An employee who does not enroll in accordance with these procedures will be deemed to have waived the right to participate. Unless a Participant files a new enrollment form or withdraws from the Plan, such Participant’s deductions and purchases will continue at the same percentage or amount of Compensation for future Offerings, provided he or she remains eligible.

 

(c)            Notwithstanding the foregoing, participation in the Plan will neither be permitted nor be denied contrary to the requirements of the Code.

 

 

5.            Employee Contributions. Each eligible employee may authorize payroll deductions at a minimum of one percent (1%) up to a maximum of fifteen percent (15%) of such employee’s Compensation for each pay period. The Company will maintain book accounts showing the amount of payroll deductions made by each Participant for each Offering. No interest will accrue or be paid on payroll deductions.

 

6.            Deduction Changes. Except as may be determined by the Administrator in advance of an Offering, a Participant may not increase or decrease his or her payroll deduction during any Offering, but may increase or decrease his or her payroll deduction with respect to the next Offering (subject to the limitations of Section 5) by filing a new enrollment form at least fifteen (15) business days before the next Offering Date (or by such other deadline as shall be established by the Administrator for the Offering). The Administrator may, in advance of any Offering, establish rules permitting a Participant to increase, decrease or terminate his or her payroll deduction during an Offering.

 

7.            Withdrawal. A Participant may withdraw from participation in the Plan by delivering a written notice of withdrawal to his or her appropriate payroll location. The Participant’s withdrawal will be effective as of the next business day. Following a Participant’s withdrawal, the Company will promptly refund such individual’s entire account balance under the Plan to him or her (after payment for any Common Stock purchased before the effective date of withdrawal). Partial withdrawals are not permitted. Such an employee may not begin participation again during the remainder of the Offering, but may enroll in a subsequent Offering in accordance with Section 4, provided that he or she remains eligible.

 

8.            Grant of Options. On each Offering Date, the Company will grant to each eligible employee who is then a Participant in the Plan an option (“Option”) to purchase on the last day of such Offering (the “Exercise Date”), at the Option Price hereinafter provided for, the lowest of (a) a number of shares of Common Stock determined by dividing such Participant’s accumulated payroll deductions on such Exercise Date by the Option Price (as defined herein), (b) the number of shares determined by dividing $25,000 by the Fair Market Value of the Common Stock on the Offering Date for such Offering; or (c) such other lesser maximum number of shares as shall have been established by the Administrator in advance of the Offering; provided, however, that such Option shall be subject to the limitations set forth below. Each Participant’s Option shall be exercisable only to the extent of such Participant’s accumulated payroll deductions on the Exercise Date. The purchase price for each share purchased under each Option (the “Option Price”) will be eighty-five percent (85%) of the Fair Market Value of the Common Stock on the Offering Date or the Exercise Date, whichever is less.

 

Notwithstanding the foregoing, no Participant may be granted an option hereunder if such Participant, immediately after the option was granted, would be treated as owning stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary (as defined in Section 11). For purposes of the preceding sentence, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of a Participant, and all stock which the Participant has a contractual right to purchase shall be treated as stock owned by the Participant. In addition, no Participant may be granted an Option which permits such Participant rights to purchase stock under the Plan, and any other employee stock purchase plan of the Company and its Parents and Subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value of such stock (determined on the option grant date or dates) for each calendar year in which the Option is outstanding at any time. The purpose of the limitation in the preceding sentence is to comply with Section 423(b)(8) of the Code and shall be applied taking Options into account in the order in which they were granted.

 

 

9.             Exercise of Option and Purchase of Shares. Each employee who continues to be a Participant in the Plan on the Exercise Date shall be deemed to have exercised his or her Option on such date and shall acquire from the Company such number of whole shares of Common Stock reserved for the purpose of the Plan as his or her accumulated payroll deductions on such date will purchase at the Option Price, subject to any other limitations contained in the Plan. Any amount remaining in a Participant’s account at the end of an Offering solely by reason of the inability to purchase a fractional share will be carried forward to the next Offering; any other balance remaining in a Participant’s account at the end of an Offering will be refunded to the Participant promptly.

 

10.           Issuance of Certificates. Certificates or book-entries at the Company’s transfer agent representing shares of Common Stock purchased under the Plan may be issued only in the name of the employee, in the name of the employee and another person of legal age as joint tenants with rights of survivorship, or in the name of a broker authorized by the employee to be his, her or their nominee for such purpose.

 

11.           Definitions.

 

The term “Compensation” means the regular or basic rate of compensation.

 

The term “Designated Subsidiary” means any present or future Subsidiary (as defined below) that has been designated by the Board to participate in the Plan. The Board may so designate any Subsidiary, or revoke any such designation, at any time and from time to time, either before or after the Plan is approved by the stockholders. The current list of Designated Subsidiaries is attached hereto as Appendix A.

 

The term “Fair Market Value of the Common Stock” on any given date means the fair market value of the Common Stock determined in good faith by the Administrator; provided, however, that if the Common Stock is admitted to quotation on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”), the NASDAQ Global Market, The New York Stock Exchange or another national securities exchange, the determination shall be made by reference to the closing price on such date. If there is no closing price for such date, the determination shall be made by reference to the last date preceding such date for which there is a closing price. Notwithstanding the foregoing, if the date for which the Fair Market Value of the Common Stock is determined is the Registration Date, the Fair Market Value of the Common Stock shall be the “Price to the Public” (or equivalent) set forth on the cover page for the final prospectus relating to the Company’s initial public offering.

 

 

The terms “New Exercise Date” means Exercise Date if the Administrator shortens any Offering then in progress.

 

The term “Initial Public Offering” means the first underwritten, firm commitment public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale by the Company of its Common Stock.

 

The term “Parent” means a “parent corporation” with respect to the Company, as defined in Section 424(e) of the Code.

 

The term “Participant” means an individual who is eligible as determined in Section 3 and who has complied with the provisions of Section 4.

 

The term “Sale Event” shall have the meaning set forth in the Company’s 2023 Stock Option and Incentive Plan.

 

The term “Subsidiary” means a “subsidiary corporation” with respect to the Company, as defined in Section 424(f) of the Code.

 

12.           Rights on Termination of Employment. If a Participant’s employment terminates for any reason before the Exercise Date for any Offering, no payroll deduction will be taken from any pay due and owing to the Participant and the balance in the Participant’s account will be paid to such Participant or, in the case of such Participant’s death, to his or her designated beneficiary as if such Participant had withdrawn from the Plan under Section 7. An employee will be deemed to have terminated employment, for this purpose, if the corporation that employs him or her, having been a Designated Subsidiary, ceases to be a Subsidiary, or if the employee is transferred to any corporation other than the Company or a Designated Subsidiary; provided, however, that if a Participant transfers from an Offering under the 423 Component to an Offering under the Non-423 Component, the exercise of the Participant’s Option will be qualified under the 423 Component only to the extent that such exercise complies with Section 423 of the Code. If a Participant transfers from an Offering under the Non-423 Component to an Offering under the 423 Component, the exercise of the Participant’s Option will remain non-qualified under the Non-423 Component. An employee will not be deemed to have terminated employment for this purpose if the employee is on an approved leave of absence for military service or sickness or for any other purpose approved by the Company, if the employee’s right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Administrator otherwise provides in writing.

 

13.           Special Rules and Sub-Plans. Notwithstanding anything herein to the contrary, the Administrator may adopt special rules applicable to the employees of a particular Designated Subsidiary whenever the Administrator determines that such rules are necessary or appropriate for the implementation of the Plan in a jurisdiction where such Designated Subsidiary has employees; provided that if such special rules or sub-plans are inconsistent with the requirements of Section 423(b) of the Code, the employees subject to such special rules or sub-plans will participate in the Non-423 Component. Any special rules or sub-plans established pursuant to this Section 13 shall, to the extent possible, result in the employees subject to such rules having substantially the same rights as other Participants in the Plan.

 

 

14.           Optionees Not Stockholders. Neither the granting of an Option to a Participant nor the deductions from his or her pay shall constitute such Participant a holder of the shares of Common Stock covered by an Option under the Plan until such shares have been purchased by and issued to the Participant.

 

15.           Rights Not Transferable. Rights under the Plan are not transferable by a Participant other than by will or the laws of descent and distribution, and are exercisable during the Participant’s lifetime only by the Participant.

 

16.           Application of Funds. All funds received or held by the Company under the Plan may be combined with other corporate funds and may be used for any corporate purpose.

 

17.           Adjustment in Case of Changes Affecting Common Stock. In the event of a subdivision of outstanding shares of Common Stock, the payment of a dividend in Common Stock or any other change affecting the Common Stock, the number of shares approved for the Plan and any share limitation set forth in Section 8 shall be equitably or proportionately adjusted to give proper effect to such event. In the case of and subject to the consummation of a Sale Event, the Administrator, in its discretion, and on such terms and conditions as it deems appropriate, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any right under the Plan or to facilitate such transactions or events:

 

(a)            To provide for either (i) termination of any outstanding Option in exchange for an amount of cash, if any, equal to the amount that would have been obtained upon the exercise of such Option had such Option been currently exercisable or (ii) the replacement of such outstanding Option with other options or property selected by the Administrator in its sole discretion;

 

(b)            To provide that the outstanding Options under the Plan shall be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for similar options covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(c)            To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding Options under the Plan and/or in the terms and conditions of outstanding Options and Options that may be granted in the future;

 

(d)            To provide that the Offering with respect to which an Option relates will be shortened by setting a New Exercise Date on which such Offering will end. The New Exercise Date will occur before the date of the Sale Event. The Administrator will notify each Participant in writing or electronically prior to the New Exercise Date, that the Exercise Date for the Participant’s Option has been changed to the New Exercise Date and that the Participant’s Option will be exercised automatically on the New Exercise Date, unless the Participant has withdrawn from the Offering in advance of the New Exercise Date as provided in Section 7 hereof; or

 

 

(e)            To provide that all outstanding Options shall terminate without being exercised and all amounts in the accounts of Participants shall be promptly refunded.

 

18.           Amendment of the Plan. The Board may at any time and from time to time amend the Plan in any respect, except that without the approval within twelve (12) months of such Board action by the stockholders, no amendment shall be made increasing the number of shares approved for the Plan or making any other change that would require stockholder approval in order for the 423 Component of the Plan, as amended, to qualify as an “employee stock purchase plan” under Section 423(b) of the Code.

 

19.           Insufficient Shares. If the total number of shares of Common Stock that would otherwise be purchased on any Exercise Date plus the number of shares purchased under previous Offerings under the Plan exceeds the maximum number of shares issuable under the Plan, the shares then available shall be apportioned among Participants in proportion to the amount of payroll deductions accumulated on behalf of each Participant that would otherwise be used to purchase Common Stock on such Exercise Date.

 

20.           Termination of the Plan. The Plan may be terminated at any time by the Board. Upon termination of the Plan, all amounts in the accounts of Participants shall be promptly refunded. Unless terminated earlier or otherwise amended, the Plan shall automatically terminate on the ten year anniversary of the Registration Date.

 

21.           Governmental Regulations. The Company’s obligation to sell and deliver Common Stock under the Plan is subject to obtaining all governmental approvals required in connection with the authorization, issuance, or sale of such stock.

 

22.           Governing Law. This Plan and all Options and actions taken thereunder shall be governed by, and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, applied without regard to conflict of law principles.

 

23.           Issuance of Shares. Shares may be issued upon exercise of an Option from authorized but unissued Common Stock, from shares held in the treasury of the Company, or from any other proper source.

 

24.           Tax Withholding. Participation in the Plan is subject to any minimum required tax withholding on income of the Participant in connection with the Plan. Each Participant agrees, by entering the Plan, that the Company and its Subsidiaries shall have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant, including shares issuable under the Plan.

 

 

25.           Notification Upon Sale of Shares Under the 423 Component. Each Participant agrees, by entering the 423 Component of the Plan, to give the Company prompt notice of any disposition of shares purchased under the Plan where such disposition occurs within two (2) years after the date of grant of the Option pursuant to which such shares were purchased or within one (1) year after the date such shares were purchased.

 

26.           Effective Date. This Plan shall become effective upon the date immediately preceding the date upon which the registration statement on Form S-1 that is filed by the Company with respect to its initial public offering is declared effective by the Securities and Exchange Commission following stockholder approval in accordance with applicable state law, the Company’s bylaws and articles of incorporation, each as amended, and applicable stock exchange rules.

 

 

Exhibit 10.24

 

CERTAIN INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

Amended and Restated Patent Assignment Agreement

 

This Amended and Restated Patent Assignment Agreement (this “Agreement”), effective as of October 25, 2019, is signed by and between Sagimet Biosciences Inc. (formerly known as 3-V Biosciences, Inc.), a corporation organized under the laws of Delaware, having a principal place of business at 155 Bovet Road, Suite 303, San Mateo, CA 94402 (hereinafter referred as "Assignor''); and Gannex Pharma Co., Ltd (甘莱制药有限公司), a corporation under the laws of China having a registered office at No. 665 Zhangjiang Road, 3^rd Floor, Shanghai Pilot Free Trade Zone, Shanghai, China (hereinafter referred to as “Assignee”). Assignee is an affiliate of Ascletis BioScience Co. Ltd. (also known as 歌礼生物科技（杭州）有限公司) (“Ascletis”), and both Assignee and Ascletis are wholly-owned subsidiaries of Ascletis Pharma Inc.

 

WHEREAS, Assignor owns all right, title and interest in and to the patents listed in Schedule A hereto.

 

WHEREAS, Assignor and Ascletis are parties to that certain Exclusive License and Development Agreement, dated January 18, 2019 (the “License Agreement”), pursuant to which Assignor granted to Ascletis certain exclusive license under specified intellectual property (referred to therein as “3-V IP”), including the Assigned Patents (as defined below), in the Territory,

 

WHEREAS, Assignor, Assignee and Ascletis are parties to that certain Assignment and Assumption Agreement, dated October 25, 2019, pursuant to which Asceletis assigned certain all of its rights and obligations under the License Agreement to Assignee;

 

WHEREAS, in order to facilitate Assignee’s performance of the obligations under the License Agreement assigned to Assignee by Ascletis, Assignee acquired certain of the Assigned Patent from Assignor under a Patent Assignment Agreement by and between Assignor and Assignee, effective as of October 25, 2019 (the “Original Assignment Agreement”);

 

WHEREAS, Assignor and Assignee wish to amend and restate the Original Assignment Agreement by entering into this Agreement.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

1.            Capitalized terms used but not defined herein shall have the meanings set forth in the License Agreement. “Assigned Patents” shall mean the patents and patent applications listed on Schedule A, together with all continuations and divisionals of such applications and the patents issuing therefrom in the Territory, and reexaminations and reissues of the patents listed on Appendix A and/or issued as described above in the Territory.

 

2.            Subject to the terms and conditions of this Agreement, Assignors hereby sell, assign and transfer to Assignee, its successors and assigns, Assignors' and its Affiliates’ entire right, title and interest in and to the Assigned Patent in the Territory. Assignee agrees that the Assigned Patents shall remain included in the definition of 3-V Patents for the purpose of the License Agreement, notwithstanding the assignment of the Assigned Patents to Assignee. Without limiting the foregoing:

 

 

(a)            the assignment of the Assigned Patents shall not change any economic terms of the License Agreement, including without limitation the Royalty Term;

 

(b)            Assignee shall not use or practice the Assigned Patents for any purpose other than to Develop, Manufacture, Commercialize and otherwise Exploit the Compounds and the Products in the Field in the Territory as permitted under the license granted to Assignee as of the effective date of the License Agreement;

 

(c)            Assignor retains the right to use and practice the Assigned Patents for the purposes set forth in Sections 2.1(a) and (b) of the License Agreement;

 

(d)            Except as set forth in Section 2.3(a) of the License Agreement, Assignee shall not grant any licenses under the Assigned Patents to Third Parties without prior written consent of Assignor, such consent not to be unreasonably withheld. For the avoidance of doubt, Assignee may grant licenses to its Affiliates without the consent of Assignor. Each license granted by Assignee under the Assigned Patents shall be deemed a sublicense granted under the License Agreement, and Assignee shall comply the requirements of Sections 2.3(b)(i), (ii), (iii) and (iv) of the License Agreement for any license granted under the Assigned Patents; and

 

(e)            Assignor shall retain the first right to prosecute and maintain, and the backup right to enforce, the Assigned Patents in accordance with Sections 8.3 and 8.5 of the License Agreement during the Term of the License Agreement, even though Assignor no longer owns the Assigned Patents.

 

Assignor shall perform such further action (including by executing any and all necessary documents or revising this Agreement) for Assignee to record such transfer with the patent offices in the Territory.

 

3.            During the remaining Term of the License Agreement, Assignee shall maintain its ownership of the Assigned Patents free and clear of all liens and encumbrances of any kind and shall not sell, assign or transfer the Assigned Patents to any other person or entity. Any attempted or purported sale, assignment or transfer in violation of this Section 3, shall be null, void and of no legal effect.

 

4.            Upon any early termination of the License Agreement for any reason other than in the event that Assignor maintains its license in accordance with Section 12.5(b) of the License Agreement, in addition to complying with Section 12.5(d) of the License Agreement, Assignee shall (and hereby does, but effective only upon such early termination of the License Agreement) sell, assign and transfer back to Assignor, its successors and assigns, the entire right, title and interest of Assignee, its Affiliates, and/or their respective successors and assigns, in and to the Assigned Patent, and Assignee shall perform such further action (including by executing any and all necessary documents and causing its Affiliates and their respective successors and assigns to do so) for Assignor to record such transfer with the patent office.

 

 

5.            The validity, performance, construction, and effect of this Agreement shall be governed by and construed under the substantive laws of Hong Kong, without giving effect to its conflicts of law provisions. This Agreement may be executed in counterparts, all of which taken together shall be regarded as one and the same instrument.

 

6.            Assignor and Assignee hereby agree to amend and restate the Original Assignment Agreement by entering into this Agreement, retroactively effective as of October 25, 2019, and the Original Assignment Agreement shall be deemed null and void and of no effect.

 

IN WITNESS WHEREOF, each party has caused its authorized representative to execute this Agreement.

 

Sagimet Biosciences, Inc.			Gannex Pharma Co. Ltd.
By:	/s/ David Happel		By:	/s/ Jinzi Wu
Name:	David Happel		Name:	Jinzi Wu
Title:	CEO		Title:	President
Date:	July 2, 2023		Date:	July 2, 2023

 

 

Schedule A

 

Assigned Patents

 

[***]

 

 

Exhibit 10.29

  

ASSIGNMENT AND ASSUMPTION AGREEMENT

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), having an effective date of October 25, 2019 ("Effective Date"), is made by and between Ascletis Bioscience Co. Ltd. (also known as 歌礼生物科技（杭州）有限公司), a corporation with a registered office at 12/F Building 3, 371Mingxing Road, Hipark, Xiaoshan District, Hangzhou, China ("Assignor"), and Gannex Pharma Co., Ltd. (甘莱制药有限公司), a corporation under the laws of China having a registered office at No. 665 Zhangjiang Road, 3^rd Floor, Shanghai Pilot Free Trade Zone, Shanghai, China ("Assignee"), and Sagimet Biosciences Inc. (formerly known as 3-V Biosciences, Inc.), a corporation organized under the laws of Delaware, having a principal place of business at 155 Bovet Road Suite 303, San Mateo, CA 94402 (“Sagimet”) (solely with respect to Section 3 of this Agreement). Assignor and Assignee may be referred to herein individually as a “Party”, and collectively as the “Parties”.

 

WHEREAS, Assignor and Sagimet Biosciences Inc. entered into certain Development and License Agreement effective as of January 18, 2019 (the “License Agreement”);

 

WHEREAS, Assignee is an Affiliate (as defined in the License Agreement) of Assignor; and

 

WHEREAS, Assignor wishes to assign all of its rights and obligations under the License Agreement to Assignee, and Assignee wishes to assume all of Assignor’s obligations under the License Agreement.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

ASSIGNMENT

 

1.

As of the Effective Date, Assignor hereby does transfer and assign unto Assignee all of Assignor's rights, obligations, interests and liabilities under the License Agreement.

 

2.

As of the Effective Date, Assignee hereby assumes all of Assignor's rights, obligations, interests and liabilities under the License Agreement to the same extent as though it had originally been named as a party thereto and agrees to observe, perform and fulfill all the terms and conditions of the License Agreement to the same extent as if it had been originally named as a party thereto.

 

3.

Sagimet Biosciences Inc. acknowledges the assignment of the License Agreement from Assignor to Assignee, and Assignor agrees that it shall remain responsible for the performance of all Assignee’s obligations under the License Agreement, notwithstanding this assignment to Assignee.

 

 

4.

Each Party represents and warrants that (i) it is a corporation duly organized, validly existing, and in good standing; (ii) it has all requisite power and authority to execute and deliver this Agreement and to perform all of its duties and obligations hereunder; (iii) the execution and delivery of this Agreement has been approved and authorized by all necessary corporate action; and (iv) this Agreement constitutes a binding and valid agreement of and is enforceable in accordance with its terms.

 

5.

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

6.

This Agreement shall be governed by and construed and enforced in accordance with the laws of Hong Kong, without regard to its conflicts of interest laws.

 

[Signature Page Follows]

 

 

[Signature Page to Assignment and Assumption Agreement]

 

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Assignment and Assumption Agreement as of the Effective Date.

  

	ASSIGNOR: Ascletis BioScience Co., Ltd.
	By:	/s/ Jinzi J. Wu
	Printed:	Jinzi J. Wu, PhD
	Title:	President and CEO
	ASSIGNEE: Gannex Pharma Co., Ltd.
	By:	/s/ Jinzi J. Wu
	Printed:	Jinzi J. Wu, PhD
	Title:	President
	Sagimet Biosciences Inc. (solely with respect to Section 3 of this Agreement)
	By:	/s/ David Happel
	Printed:	David Happel
	Title:	CEO

 

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the use in this Registration Statement No. 333-272901 on Form S-1 of our report dated March 24, 2023, (July 9, 2023, as to the effects of the reverse stock split described in Note 14) relating to the financial statements of Sagimet Biosciences Inc. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

 

/s/ Deloitte & Touche LLP

 

San Francisco, California
July 9, 2023

 

 

Exhibit 107

Calculation of Filing Fee Tables

 

Form S-1

(Form Type)

 

Sagimet Biosciences Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

  

	Security Type	Security Class Title	Fee Calculation or Carry Forward Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Proposed Maximum Aggregate Offering Price(1)(2)	Fee Rate	Amount of Registration Fee
Newly Registered Securities
Fees to be Paid	Equity	Series A common stock, $0.0001 par value per share	Rule 457(o)	5,390,625	$17.00	$91,640,625	0.0001102	$10,098.80
	Total Offering Amounts					$91,640,625		$10,098.80
	Total Fees Previously Paid							$82.00(3)
	Total Fee Offsets							$8,183.00
	Net Fee Due							$1,833.80

  

(1) Includes 703,125 shares that the underwriters have the option to purchase.

(2) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).

(3) The Registrant previously paid a registration fee of $82.00 in connection with a prior filing of this Registration Statement on Form S-1.

  

 

Table 2—Fee Offset Claims and Sources

 

	Registrant or Filer Name	Form or Filing Type	File Number	Initial Filing Date	Filing Date	Fee Offset Claimed	Security Type Associated with Fee Offset Claimed	Security Title Associated with Fee Offset Claimed	Unsold Securities Associated with Fee Offset Claimed	Unsold Aggregate Offering Amount Associated with Fee Offset Claimed	Fee Paid with Fee Offset Source
Rules 457(b) and 0-11(a)(2)
Fee Offset Claims
Fee Offset Sources
Rule 457(p)
Fee Offset Claims	Sagimet Biosciences Inc.	S-1	333-255304(1)	April 16, 2021		$8,183.00	Equity	Class A common stock, $0.0001 par value per share		$75,000,000
Fee Offset Sources	Sagimet Biosciences Inc.	S-1	333-255304(1)		April 16, 2021						$8,183.00

 

(1) The Registrant paid a registration fee of $8,183 in connection with the registration of $75,000,000 of shares of the Registrant’s Class A common stock, par value $0.0001 per share, under the Registration Statement on Form S-1, filed on April 16, 2021 (File No. 333-255304) (the “Prior S-1”). The Prior S-1 was not declared effective by the Securities and Exchange Commission, and no securities were issued or sold thereunder. The Prior S-1 was withdrawn by filing a Form RW on March 21, 2022. In accordance with Rule 457(p) under the Securities Act, the total amount of the registration fee due upon the initial filing of this Registration Statement is offset by $8,183, representing the fee paid in connection with the Prior S-1.