Astria Therapeutics(ATXS) - 2025 Q3 - Quarterly Results

Agreement and Plan of Merger Preamble This section introduces the Agreement and Plan of Merger, detailing Astria Therapeutics' acquisition by BioCryst Pharmaceuticals, approved by the Company's board - The Agreement and Plan of Merger is dated October 14, 2025[2][8] - The merger involves BioCryst Pharmaceuticals, Inc. (Parent), Axel Merger Sub, Inc. (Merger Sub), and Astria Therapeutics, Inc. (Company)[8] - The Company's Board of Directors unanimously approved the merger and resolved to recommend stockholder approval[10] - Certain Company stockholders have entered into Voting and Support Agreements to vote their shares in favor of the merger[10] ARTICLE 1 DEFINITIONS This article establishes foundational terminology for the Merger Agreement, providing precise definitions and interpretative provisions for clarity Section 1.01. Definitions This section lists key defined terms like 'Acquisition Proposal' and 'Company Material Adverse Effect,' crucial for accurate agreement interpretation - An 'Acquisition Proposal' is defined as any inquiry, offer, or proposal from a third party relating to transactions involving 20% or more of the Company's voting/equity securities or assets, or any significant corporate reorganization[12][13] - A 'Company Material Adverse Effect' excludes general economic, market, industry, or political changes, acts of war, changes in laws/GAAP, stock price fluctuations, or failure to meet forecasts, unless such effects disproportionately impact the Company[27][28] - A 'Superior Proposal' is a bona fide, unsolicited written Acquisition Proposal that the Board of Directors determines, after financial and legal advice, is financially more favorable to stockholders than the current merger, considering all relevant factors[105] Section 1.02. Other Definitional and Interpretative Provisions This section establishes general interpretative rules for the agreement, covering terms like 'including' and references to amended laws and contracts - The terms 'include,' 'includes,' or 'including' are to be followed by 'without limitation'[121] - References to any applicable Law refer to such Law as amended from time to time, including rules, regulations, or interpretations[121] - Documents 'made available to Parent' include those posted to ShareFile data room or Astria Regulatory Documents SharePoint by October 11, 2025, provided in response to diligence, or included as exhibits to Company SEC Documents filed after December 31, 2024[121] ARTICLE 2 THE MERGER This article outlines the procedural and financial aspects of the merger, detailing share conversion, corporate structure, and handling of dissenting shares Section 2.01. The Merger This section describes the merger of Merger Sub into the Company, with the Company continuing as the Surviving Corporation, and specifies closing procedures - Merger Sub will merge into the Company, and the Company will be the Surviving Corporation[123] - The closing of the Merger will occur no later than three Business Days after conditions in Article 8 are satisfied or waived[125] - The Merger becomes effective upon filing the certificate of merger with the Delaware Secretary of State[125] Section 2.02. Certificate of Incorporation and Bylaws This section mandates that the Surviving Corporation's certificate of incorporation will be as specified in Exhibit A, and its bylaws will be those of Merger Sub - The certificate of incorporation of the Surviving Corporation will be as set forth in Exhibit A[127] - The bylaws of Merger Sub will become the bylaws of the Surviving Corporation, incorporating the Company's indemnification and exculpation provisions for acts prior to the Effective Time[128] Section 2.03. Directors and Officers This section states that the individuals serving as directors and officers of Merger Sub immediately prior to the Effective Time will become the directors and officers of the Surviving Corporation - Directors of Merger Sub immediately prior to the Effective Time will become directors of the Surviving Corporation[129] - Officers of Merger Sub immediately prior to the Effective Time will become officers of the Surviving Corporation[129] Section 2.04. Conversion of Shares This section details the conversion of Company shares into Parent Common Stock and cash, specifying exchange ratios, cash amounts, and adjustments Share Conversion Details | Item | Value/Description | | :--- | :--- | | Exchange Ratio (Parent Common Stock per Share) | 0.590 | | Per Share Cash Amount | $8.55 | | Fractional Share Cash Value | $7.54 per share (multiplied by fraction) | | Maximum Share Number Threshold | 19.9% of Parent Common Stock outstanding prior to Effective Time | | Series X Preferred Shares Conversion | Convert to Merger Consideration based on aggregate Shares convertible immediately prior to Effective Time | | Treasury/Parent-held Shares | Canceled without payment | - If the aggregate number of Parent Common Stock shares to be issued exceeds 19.9% of Parent's outstanding shares, the Exchange Ratio will be reduced, and the Per Share Cash Amount will be increased proportionally[137] Section 2.05. Surrender and Payment This section outlines the process for holders of Company securities to surrender them and receive Merger Consideration, detailing the Exchange Agent's role and handling of funds - Parent will appoint an Exchange Agent to facilitate the exchange of Company securities for Merger Consideration[139] - The Exchange Fund, comprising Parent Common Stock and cash, will be deposited with the Exchange Agent to cover Merger Consideration[139] - Unclaimed portions of the Exchange Fund remaining six months after the Effective Time will be returned to Parent, and holders will then look to Parent as a general creditor[149][150] - No interest will be paid on the cash component of the Merger Consideration[147] Section 2.06. Dissenting Shares This section addresses shares held by stockholders who properly demand appraisal rights, specifying that such shares will not receive Merger Consideration unless appraisal rights are lost - Shares for which appraisal rights are properly demanded under DGCL Section 262 will not receive Merger Consideration[154] - If appraisal rights are lost, such shares will be treated as converted into the right to receive Merger Consideration[155] - The Company must notify Parent of any appraisal demands and cannot settle them without Parent's written consent[155] Section 2.07. Company Stock Options This section details the treatment of Company Stock Options, specifying that in-the-money options will be cashed out at $13.00 per share, while out-of-the-money options will be canceled - Holders of Company Stock Options will have an opportunity to exercise them prior to the Effective Time[156] - In-the-Money Options will fully vest, become exercisable, and be canceled for a cash payment equal to (total shares subject to option) * ($13.00 - exercise price)[157] - Out-of-the-Money Options will be canceled without payment[158] - Option Payments will be delivered as soon as reasonably practicable after closing, typically via payroll[160] Section 2.08. Treatment of Company Pre-Funded Warrants This section specifies that each outstanding and unexercised Company Pre-Funded Warrant will automatically convert into the right to receive the Merger Consideration - Company Pre-Funded Warrants will convert into the right to receive Merger Consideration[162] - Conversion is based on the aggregate number of Shares exercisable immediately prior to the Effective Time, considering cashless exercise provisions[162] Section 2.09. Treatment of Company Common Warrants This section states that Company Common Warrants will remain outstanding after the merger but will become exercisable solely for the Merger Consideration - Company Common Warrants will remain outstanding post-merger[163] - These warrants will become exercisable solely for the Merger Consideration, based on the aggregate number of shares they were exercisable for[163] - Holders retain the right to elect a cash purchase of warrants based on their Black Scholes Value[163] Section 2.10. Adjustments This section provides for adjustments to the Exchange Ratio and Per Share Cash Amount if outstanding shares of the Company or Parent change due to certain transactions - The Exchange Ratio and Per Share Cash Amount will be adjusted for changes in Company shares (e.g., stock splits, dividends) to maintain economic effect[165] - The Exchange Ratio (but not Per Share Cash Amount) will be adjusted for changes in Parent Common Stock[165] Section 2.11. Withholding Rights This section grants the Exchange Agent, Merger Sub, Surviving Corporation, Parent, and their agents the right to deduct and withhold any amounts required by applicable tax law from payments - The Exchange Agent, Merger Sub, Surviving Corporation, Parent, and their agents are authorized to deduct and withhold taxes from payments[166] - Any withheld amount will be treated as paid to the person from whom it was withheld[166] Section 2.12. Further Assurances This section authorizes officers and directors of the Surviving Corporation to execute documents and take actions to vest and confirm all rights and assets acquired by the Surviving Corporation - Officers and directors of the Surviving Corporation are authorized to execute documents and take actions to vest acquired rights and assets[167] ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY This article contains comprehensive representations and warranties by Astria Therapeutics to BioCryst Pharmaceuticals regarding its business, legal standing, and financial condition Section 3.01. Corporate Existence and Power This section represents that the Company is a duly organized, validly existing, and in good standing Delaware corporation with the corporate power to conduct its business - The Company is a duly organized, validly existing, and in good standing Delaware corporation[171] - The Company and its Subsidiaries possess the corporate power and authority to carry on their businesses[171] - True and correct copies of the Company's and its Subsidiaries' organizational documents have been provided to Parent[171][172] Section 3.02. Corporate Authorization This section affirms the Company's corporate power to execute the Merger Agreement, noting unanimous board approval and the requirement for stockholder approval - The Company has the corporate power and authority to execute and perform its obligations under the Agreement[173] - The Company's Board of Directors unanimously approved the Agreement and recommended stockholder approval[175] - The only corporate proceeding necessary for the Merger is the adoption of the Agreement by a majority vote of outstanding Shares (Required Stockholder Approval) and filing a certificate of merger[173] Section 3.03. Governmental Authorization This section specifies the governmental authorizations required for the Company to execute and perform the Merger Agreement, including SEC filings and antitrust compliance - Required governmental authorizations include filing a certificate of merger, compliance with Antitrust Law, and SEC filings (Form S-4 and Proxy Statement/Prospectus)[176] - Compliance with Securities Act, Exchange Act, and Nasdaq rules is also necessary[176] Section 3.04. Non-contravention This section represents that the merger will not violate the Company's organizational documents, applicable laws, or material contracts, nor create any liens, unless such effects are not materially adverse - The merger will not contravene the Company's organizational documents or applicable laws[177] - The merger will not breach or default under material contracts or permits, or result in the creation of any liens, except where such effects would not reasonably be expected to have a Company Material Adverse Effect[177][178] Section 3.05. Capitalization This section provides a detailed overview of the Company's capitalization as of October 10, 2025, including authorized and outstanding shares, options, and warrants Company Capitalization as of October 10, 2025 | Security Type | Authorized | Outstanding | Subject to Issuance | | :--- | :--- | :--- | :--- | | Shares (Common Stock) | 150,000,000 | 56,434,894 | - | | Preferred Shares | 5,000,000 | - | - | | Series X Preferred Shares | (part of Preferred) | 31,107 | - | | Company Stock Options | - | - | 11,704,468 | | Company Pre-Funded Warrants | - | - | 1,571,093 | | Company Common Warrants | - | - | 6,796,280 | | Reserved for Company Equity Incentive Plans | - | - | 9,491,421 | | Reserved for Company ESPP | - | - | 55,216 | - All outstanding and issuable shares are, or will be, duly authorized, validly issued, fully paid, non-assessable, and free of preemptive rights[179] - The exercise price of each Company Stock Option was less than the fair market value on the grant date, and all such options are exempt from Section 409A of the Code[180] - There are no other outstanding obligations of the Company or its Subsidiaries to repurchase, redeem, or acquire any Company Securities[184] Section 3.06. Subsidiaries This section represents that each Subsidiary of the Company is duly organized, validly existing, and in good standing, with the Company solely owning all their capital stock - Each Subsidiary is duly organized, validly existing, and in good standing in its jurisdiction[190] - The Company solely owns all outstanding capital stock or ownership interests in its Subsidiaries, free of liens and restrictions (other than securities laws)[191] - There are no other outstanding Company Subsidiary Securities or obligations to acquire them[192] Section 3.07. SEC Filings and the Sarbanes-Oxley Act This section asserts that the Company has timely filed all required SEC documents since January 1, 2023, complying materially with regulations and maintaining effective controls - The Company has timely filed all required SEC documents since January 1, 2023[194] - All Company SEC Documents comply materially with applicable requirements and do not contain material misstatements or omissions[196][197][198] - The Company maintains effective disclosure controls and internal controls over financial reporting, with no significant deficiencies or material weaknesses disclosed[199][200] - The Company has complied materially with Nasdaq listing and corporate governance rules and Sarbanes-Oxley Act requirements[203] Section 3.08. Financial Statements This section represents that the Company's financial statements in SEC documents comply materially with SEC rules and fairly present its financial position in accordance with GAAP - Company financial statements in SEC documents comply materially with SEC rules[206] - Financial statements fairly present the Company's consolidated financial position, results of operations, and cash flows in all material respects, in accordance with GAAP[206] Section 3.09. Information Supplied This section warrants that information supplied by the Company for inclusion in the Form S-4 and Proxy Statement/Prospectus will not contain any material misstatements or omissions - Information supplied by the Company for Form S-4 will not contain material misstatements or omissions[207] - Information supplied by the Company for Proxy Statement/Prospectus will not contain material misstatements or omissions[208] Section 3.10. Absence of Certain Changes This section states that since December 31, 2024, the Company's business has been conducted in the ordinary course, with no Company Material Adverse Effect - Since December 31, 2024, the Company's business has been conducted in the ordinary course[209] - No Company Material Adverse Effect has occurred since December 31, 2024[209] Section 3.11. No Undisclosed Material Liabilities This section represents that there are no undisclosed material liabilities or obligations of the Company or its Subsidiaries, beyond those disclosed or incurred in the ordinary course - No undisclosed material liabilities or obligations exist for the Company or its Subsidiaries[211] - Exceptions include liabilities disclosed in the Balance Sheet, those from the merger agreement, or those incurred in the ordinary course since the Balance Sheet Date[211] Section 3.12. Compliance with Laws, Permits and Court Orders This section asserts that the Company and its Subsidiaries are in material compliance with all applicable laws and hold all necessary material permits for their businesses - The Company and its Subsidiaries are in material compliance with all applicable Laws, including Health Laws, since January 1, 2023[212] - No written or oral notice of violation or investigation from a Governmental Authority has been received since January 1, 2023[212] - The Company and its Subsidiaries hold all material Permits necessary for their businesses, and these permits are valid and in full force[214] Section 3.13. Anti-Corruption and Trade Controls This section represents that the Company and its representatives have materially complied with anti-corruption and trade control laws for the past five years, and are not subject to sanctions - The Company, its Subsidiaries, directors, officers, and agents have complied materially with anti-corruption and anti-bribery laws for the past five years[215] - No bribes, unlawful rebates, or improper payments have been made, authorized, solicited, or received[215] - The Company and its Subsidiaries are in material compliance with U.S. and non-U.S. economic and trade sanctions, export/import controls, customs, and antiboycott laws[217] - None of the Company, its Subsidiaries, or their key personnel are subject to sanctions or located in comprehensively sanctioned countries[218] Section 3.14. Litigation This section states that there is no material litigation pending or threatened against the Company, its Subsidiaries, or their officers, directors, or employees - No material litigation is pending or threatened against the Company or its Subsidiaries[220] - No material litigation is pending or threatened against any present or former officer, director, or employee in their capacities as such[220] Section 3.15. Properties This section represents that the Company and its Subsidiaries have good title or valid leasehold interests in all material properties, free of liens, and do not own real property - The Company and its Subsidiaries have good title or valid leasehold interests in all material properties and assets, free of Liens (other than Permitted Liens)[222] - Neither the Company nor its Subsidiaries own fee title to any real property[224] - All Leases for real property are valid, binding, and in full force and effect, and the Leased Real Property is sufficient for current business operations[224][225][226] Section 3.16. Intellectual Property This section details the Company's Intellectual Property Rights, asserting sole ownership of Company Owned IP and valid licenses for Company Licensed IP, and the absence of material IP litigation - The Company and its Subsidiaries are the sole owners of Company Owned Intellectual Property Rights and have valid licenses for Company Licensed Intellectual Property Rights[229][230] - The Company Intellectual Property Rights are material and necessary for the conduct of the Company's business as currently and proposed to be conducted[229] - The merger will not alter, encumber, impair, or extinguish any Company IP rights or result in increased royalties or diminished payments[230] - No material litigation is pending or threatened against the Company regarding IP infringement or challenging the validity/enforceability of Company IP[235][236] - The Company has taken commercially reasonable actions to maintain the confidentiality of all material Trade Secrets[243] Section 3.17. Privacy and Information Security This section represents that the Company and its service providers have materially complied with privacy and information security requirements since January 1, 2023, and have experienced no material security incidents - The Company, its Subsidiaries, and Third Party Service Providers have been in material compliance with Privacy and Information Security Requirements since January 1, 2023[249] - Commercially reasonable administrative, technical, and physical measures are maintained to protect Personal Information and Business Data[250] - No material Security Incidents have been experienced or are currently occurring since January 1, 2023[251] Section 3.18. Taxes This section provides representations regarding the Company Tax Group's compliance with tax laws, including timely filing of returns, full payment of taxes, and absence of liens or audits - All material Tax Returns for the Company Tax Group have been timely filed and are true and complete in all material respects[253] - All material Taxes due have been paid in full or adequately accrued[254] - No Liens of material Taxes exist on Company Tax Group assets, except for those not yet due and arising in the ordinary course[257] - No Action (audit, litigation) regarding material Taxes is pending or threatened[258] - Each member of the Company Tax Group has been a 'C corporation' since its inception and has not participated in any 'listed transaction'[263][269] Section 3.19. Employee Benefit Plans; Labor Matters This section details the Company's employee benefit plans and labor matters, confirming compliance with ERISA and the Code, and adherence to labor laws - The Company has provided a list of each material Employee Plan and related documentation[273] - Neither the Company nor its ERISA Affiliates sponsor or have liability for defined benefit, multiemployer, or certain other pension plans[278] - Each Qualified Plan is qualified under Section 401(a) of the Code and has a current determination or opinion letter from the IRS[280] - The Company and its Subsidiaries are in material compliance with all applicable labor and employment laws[294] - Neither the Company nor its Subsidiaries are party to any Collective Bargaining Agreement, and no unionization activity is pending or threatened[292] - The merger will not trigger increased or accelerated payments/benefits, or 'excess parachute payments' under Section 280G of the Code, except as expressly required or disclosed[288] Section 3.20. Environmental Matters This section represents that the Company and its Subsidiaries are in material compliance with all Environmental Laws and Permits for the past five years, with no material liabilities or releases - No material notices, complaints, or actions related to Environmental Law have been received or are threatened against the Company or its Subsidiaries[297] - The Company and its Subsidiaries are in material compliance with all Environmental Laws and Permits for the past five years[297] - No material liabilities or obligations exist under Environmental Laws or related to Hazardous Substances[297] Section 3.21. Material Contracts This section lists and warrants the validity and enforceability of the Company's Material Contracts, confirming no material breaches or defaults - Schedule 3.21(a) of the Company Disclosure Letter contains a true and complete list of each Material Contract[299] - Material Contracts include those related to severance, joint ventures, R&D, IP licenses, governmental authorities, sole-source suppliers, stockholder rights, preferential pricing, significant payments (>$350k annually or >$1M aggregate), leases, and change of control payments[301][302][303] - Each Material Contract is valid, binding, and enforceable, and neither the Company nor any other party is in material breach or default[304] Section 3.22. Regulatory Matters This section provides extensive representations regarding the Company's compliance with regulatory requirements for its products, including health laws and good practices, and the absence of material regulatory issues - All Company Products have been researched, developed, and exploited in material compliance with applicable FDCA, PHSA, Health Laws, and Good Practices (GMP, GLP, GCP) since January 1, 2023[305] - No material notices of inspectional observations, warning letters, or other documents indicating a material lack of compliance from the FDA or other Governmental Authorities have been received[307] - No human clinical trial has been terminated or suspended by regulatory authorities, and no clinical hold orders are pending or threatened[310][311] - All applications and submissions to the FDA or comparable authorities were true, complete, and correct in all material respects, with no untrue or fraudulent statements[324] - The Company is not currently marketing, distributing, or commercializing any Company Product since January 1, 2023[322] Section 3.23. Transactions with Affiliates This section represents that there are no undisclosed material contracts or arrangements between the Company and its affiliates that would require disclosure under Item 404(a) of Regulation S-K - No undisclosed material contracts or arrangements exist between the Company/Subsidiaries and their officers, directors, or 5% beneficial owners[332] - All such required disclosures under Item 404(a) of Regulation S-K have been made in Company SEC Documents[332] Section 3.24. Insurance This section confirms that the Company has provided Parent with all material insurance policies, which are in full force and effect, with no material claims pending - All material insurance policies and self-insurance programs have been made available to Parent[334] - All such policies are in full force and effect, with premiums timely paid or accrued[334] - No material claims are pending where coverage has been questioned, denied, or disputed[334] Section 3.25. Finders' Fees This section states that Evercore Group L.L.C. is the only investment banker retained by the Company entitled to a fee or commission in connection with the merger - Evercore Group L.L.C. is the sole financial advisor entitled to fees from the Company for the merger[335] - All agreements with Evercore regarding fees, expenses, or indemnification have been made available to Parent[335] Section 3.26. Opinion of Financial Advisor This section confirms that the Company's Board of Directors has received an opinion from Evercore Group L.L.C. stating that the Merger Consideration is fair from a financial point of view - The Board of Directors received an opinion from Evercore Group L.L.C. that the Merger Consideration is fair to stockholders from a financial point of view[336] - The financial advisor's opinion has not been withdrawn, rescinded, or modified as of the date of the agreement[336] Section 3.27. Antitakeover Statutes This section represents that the Company has taken all necessary actions to exempt the merger from Section 203 of the DGCL and other antitakeover statutes, and no stockholder rights plan is in effect - The Company has taken all necessary action to exempt the merger from Section 203 of the DGCL[337] - No other antitakeover or similar laws apply to the merger, and no stockholder rights plan or 'poison pill' is in effect[337] Section 3.28. No Other Representations and Warranties This section acknowledges that, except for explicit representations in Article 4, neither Parent nor Merger Sub makes any other representations or warranties regarding Parent or the merger information - The Company acknowledges that Parent and Merger Sub make no representations or warranties beyond those in Article 4[339] - The Company is not relying on any other information provided by Parent or its representatives[339] ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT This article sets forth the representations and warranties by BioCryst Pharmaceuticals and Merger Sub to Astria Therapeutics regarding their corporate status, financial condition, and legal compliance Section 4.01. Corporate Existence and Power This section represents that Parent and Merger Sub are duly organized, validly existing, and in good standing Delaware corporations with the corporate power to conduct their businesses - Parent and Merger Sub are duly organized, validly existing, and in good standing corporations[342] - Merger Sub has not engaged in any activities other than in connection with the Agreement[342] Section 4.02. Corporate Authorization This section affirms Parent's and Merger Sub's corporate power to execute the Merger Agreement, stating that their execution and performance have been duly authorized - Parent and Merger Sub have the corporate power and authority to execute and perform their obligations under the Agreement[343] - The Agreement has been duly authorized by Parent and Merger Sub[343] - The only necessary corporate proceedings are the adoption by Merger Sub's sole stockholder and the filing of a certificate of merger[343] Section 4.03. Governmental Authorization This section specifies the governmental authorizations required for Parent and Merger Sub to execute and perform the Merger Agreement, including SEC filings and antitrust compliance - Required governmental authorizations include filing a certificate of merger, compliance with Antitrust Law, and SEC filings (Form S-4 and Proxy Statement/Prospectus)[345] - Compliance with Securities Act, Exchange Act, and Nasdaq rules is also necessary[345] Section 4.04. Non-contravention This section represents that the merger will not violate Parent's or Merger Sub's organizational documents, applicable laws, or material contracts, nor create any liens, unless such effects are not materially adverse - The merger will not contravene Parent's or Merger Sub's organizational documents or applicable laws[346] - The merger will not breach or default under material contracts or permits, or result in the creation of any liens, except where such effects would not reasonably be expected to have a Parent Material Adverse Effect[346] Section 4.05. Capitalization This section details Parent's capitalization as of October 10, 2025, including authorized and outstanding shares, options, and restricted stock units, and confirms Parent's ownership of Merger Sub's stock Parent Capitalization as of October 10, 2025 | Security Type | Authorized | Outstanding | Subject to Issuance | | :--- | :--- | :--- | :--- | | Parent Common Stock | 450,000,000 | 210,529,583 | - | | Parent Preferred Shares | 5,000,000 | 0 | - | | Options to acquire Parent Common Stock | - | - | 41,553,772 | | Restricted Stock Units of Parent | - | - | 9,798,703 | | Reserved for Parent Equity Incentive Plans | - | - | 15,134,731 | | Reserved for Parent ESPP | - | - | 4,674,237 | - Shares of Parent Common Stock issued in the merger will be duly authorized, validly issued, fully paid, and non-assessable, free of preemptive rights[348] - Parent owns all issued and outstanding capital stock of Merger Sub[348] Section 4.06. Subsidiaries This section represents that each Subsidiary of Parent is duly organized, validly existing, and in good standing, with all necessary organizational powers to conduct its business - Each Subsidiary of Parent is duly organized, validly existing, and in good standing[350] - Parent's Subsidiaries possess all organizational powers to carry on their businesses as currently conducted[350] Section 4.07. SEC Filings and the Sarbanes-Oxley Act This section asserts that Parent has timely filed all required SEC documents since January 1, 2023, complying materially with regulations and maintaining effective controls - Parent has timely filed all required SEC documents since January 1, 2023[353] - All Parent SEC Documents comply materially with applicable requirements and do not contain material misstatements or omissions[354][355] - Parent maintains effective disclosure controls and internal controls over financial reporting[356][357] Section 4.08. Financial Statements This section represents that Parent's financial statements in SEC documents comply materially with SEC rules and fairly present its financial position in accordance with GAAP - Parent's financial statements in SEC documents comply materially with SEC rules[358] - Financial statements fairly present Parent's consolidated financial position, results of operations, and cash flows in all material respects, in accordance with GAAP[359] Section 4.09. Information Supplied This section warrants that information supplied by Parent for inclusion in the Form S-4 and Proxy Statement/Prospectus will not contain any material misstatements or omissions - Information supplied by Parent for Form S-4 will not contain material misstatements or omissions[360] - Information supplied by Parent for Proxy Statement/Prospectus will not contain material misstatements or omissions[360] Section 4.10. Absence of Certain Changes This section states that since December 31, 2024, there has been no Effect that has had or would reasonably be expected to have a Parent Material Adverse Effect - No Parent Material Adverse Effect has occurred since December 31, 2024[361] Section 4.11. No Undisclosed Material Liabilities This section represents that there are no undisclosed material liabilities or obligations of Parent or its Subsidiaries, beyond those disclosed or incurred in the ordinary course - No undisclosed material liabilities or obligations exist for Parent or its Subsidiaries[362] - Exceptions include liabilities disclosed in Parent's June 30, 2025 balance sheet, those from the merger agreement, or those incurred in the ordinary course since the Balance Sheet Date[362] Section 4.12. Intellectual Property This section asserts Parent's sole ownership of Parent Owned Intellectual Property Rights and valid licenses for Parent Licensed Intellectual Property Rights, with no material IP litigation or infringement claims - Parent and its Subsidiaries are the sole owners of Parent Owned Intellectual Property Rights and have valid licenses for Parent Licensed Intellectual Property Rights[363][364] - No material litigation is pending or threatened against Parent regarding IP infringement or challenging the validity/enforceability of Parent IP[365] - Parent's business operations do not infringe, misappropriate, or violate any third-party Intellectual Property Rights[366] Section 4.13. Privacy and Information Security This section represents that Parent and its service providers have materially complied with privacy and information security requirements since January 1, 2023, and have experienced no material security incidents - Parent, its Subsidiaries, and Third Party Service Providers have been in material compliance with Privacy and Information Security Requirements since January 1, 2023[369] - Commercially reasonable administrative, technical, and physical measures are maintained to protect Personal Information and Business Data[370] - No material Security Incidents have been experienced or are currently occurring since January 1, 2023[371][372] Section 4.14. Taxes This section provides representations regarding the Parent Tax Group's compliance with tax laws, including timely filing of returns, full payment of taxes, and absence of liens or audits - All material Tax Returns for the Parent Tax Group have been timely filed and are true and complete in all material respects[373] - All material Taxes due have been paid in full or adequately accrued[374] - No Liens of material Taxes exist on Parent Tax Group assets, except for Permitted Liens[374] - No Action (audit, litigation) regarding material Taxes is pending or threatened[375] - The Parent Tax Group has not participated in any 'listed transaction'[376] Section 4.15. Compliance with Laws This section asserts that Parent and its Subsidiaries are in material compliance with all applicable laws, including Health Laws, since January 1, 2023, with no material notices of violation - Parent and its Subsidiaries are in material compliance with all applicable Laws, including Health Laws, since January 1, 2023[377] - No written or oral notice of violation or investigation from a Governmental Authority has been received since January 1, 2023[377] Section 4.16. Litigation This section states that there is no material litigation pending or threatened against Parent, its Subsidiaries, or their officers, directors, or employees - No material litigation is pending or threatened against Parent or its Subsidiaries[378] - No material litigation is pending or threatened against any present or former officer, director, or employee in their capacities as such[378] Section 4.17. Integrity and Monitoring Agreements This section represents that neither Parent nor its Subsidiaries are party to any corporate integrity agreements, monitoring agreements, or similar arrangements with governmental authorities related to Health Laws - Neither Parent nor its Subsidiaries are party to any corporate integrity agreements, monitoring agreements, consent decrees, or similar agreements related to Health Laws[380] Section 4.18. Compliance with the FDCA and PHSA This section represents that all Parent Products have been researched, developed, and exploited in material compliance with applicable FDCA, PHSA, Health Laws, and Good Practices since January 1, 2023 - All Parent Products have been researched, developed, and exploited in material compliance with applicable FDCA, PHSA, Health Laws, and Good Practices (GMP, GLP, GCP) since January 1, 2023[381] - No material notices of inspectional observations, warning letters, or other documents indicating a material lack of compliance from the FDA or other Governmental Authorities have been received[382] Section 4.19. No False Statements, Exclusion or Debarment This section represents that Parent, its officers, employees, or agents have not made untrue or fraudulent statements to regulatory authorities, nor engaged in conduct that would lead to debarment or exclusion from federal healthcare programs - Neither Parent nor its officers, employees, or agents have made untrue or fraudulent statements to the FDA or other Governmental Authorities[383] - No conduct has occurred that would reasonably be expected to result in debarment under 21 U.S.C. Section 335a or exclusion from federal health care programs under Section 1128 of the U.S. Social Security Act[383][384] Section 4.20. Finders' Fees This section states that BofA Securities, Inc. is the only investment banker retained by Parent entitled to a fee or commission in connection with the merger - BofA Securities, Inc. is the sole investment banker entitled to fees from Parent for the merger[385] Section 4.21. Stock Ownership This section confirms that neither Parent, Merger Sub, nor their controlled Affiliates own or have owned 15% or more of the Company's capital stock within three years prior to the agreement date - Neither Parent, Merger Sub, nor their controlled Affiliates own or have owned 15% or more of the Company's capital stock within three years prior to the agreement date[386] Section 4.22. Financial Capability This section asserts that Parent has secured Debt Financing commitments sufficient to cover its payment obligations for the merger, and these commitments are legal, valid, and binding - Parent has entered into Debt Commitment Letters with Financing Sources for debt financing[387] - The Debt Commitment Letters are legal, valid, and binding obligations, in full force and effect[388] - No side letters or other contracts exist that would adversely affect the Debt Financing's conditionality or amount[389] - Parent will have immediately available funds from the Debt Financing at closing to satisfy all payment obligations under the Agreement[393] Section 4.23. No Other Representations and Warranties This section acknowledges that, except for explicit representations in Article 3, neither the Company nor its affiliates make any other representations or warranties regarding the Company or the merger information - Parent and Merger Sub acknowledge that the Company makes no representations or warranties beyond those in Article 3[394] - Parent and Merger Sub are not relying on any other information provided by the Company or its representatives[394] ARTICLE 5 COVENANTS OF THE COMPANY This article details the specific obligations and restrictions placed upon Astria Therapeutics during the interim period to ensure business continuity and facilitate the merger Section 5.01. Conduct of the Company This section requires the Company to conduct its business in the ordinary course and lists specific actions prohibited without Parent's prior written consent - The Company must conduct its business in the ordinary course consistent with past practices until the Effective Time[398] - Prohibited actions without Parent's consent include amending organizational documents, splitting/reclassifying shares, issuing new securities (with exceptions for existing options/warrants), incurring capital expenditures over $50,000 (unbudgeted), or amending the R&D Plan materially[399][400] - The Company is restricted from making material acquisitions or dispositions of assets, creating liens (other than Permitted Liens), or making loans/investments outside the ordinary course[400][401] - Restrictions also apply to material changes in compensation/benefits, entering into or materially modifying Material Contracts, changing accounting methods, settling material litigation, or making certain tax elections[401][402] Section 5.02. Access to Information This section obligates the Company to provide Parent and its representatives with reasonable access to its offices, records, and personnel, while allowing for the withholding of privileged or confidential information - The Company must provide Parent and its representatives reasonable access to its offices, properties, records, and personnel[405] - The Company must furnish financial and operating data and other reasonably requested information[405] - The Company may withhold information that would waive attorney-client privilege, disclose personal information, violate confidentiality obligations to third parties, or violate applicable law[406] Section 5.03. Acquisition Proposals; Change of Recommendation This section prohibits the Company from soliciting alternative acquisition proposals but allows the Board to engage with unsolicited Superior Proposals or respond to Intervening Events, subject to fiduciary duties and notice to Parent - The Company is prohibited from initiating, soliciting, encouraging, or facilitating any Acquisition Proposal[408] - The Board may engage with a third party regarding an unsolicited, bona fide written Acquisition Proposal if it determines it is a Superior Proposal or could lead to one, and failure to engage would breach fiduciary duties[411][412] - Any such engagement requires a confidentiality agreement with terms no less restrictive than the Confidentiality Agreement with Parent[411] - The Company must promptly notify Parent of any Acquisition Proposals, requests for information, or discussions, providing material terms and copies of proposed agreements[413] - The Board may make an Adverse Recommendation Change in response to a Superior Proposal or Intervening Event, but only after providing Parent with a four-Business Day notice and negotiation period[416][417] Section 5.04. Section 16 Matters This section requires the Company to take all necessary steps to ensure that any dispositions of Shares by individuals subject to Section 16(a) of the Exchange Act, resulting from the merger, are exempt under Rule 16b-3 - The Company must take steps to exempt dispositions of Shares by Section 16(a) reporting individuals from Rule 16b-3[422] Section 5.05. Stock Exchange Delisting; Exchange Act Deregistration This section obligates the Company to cooperate with Parent to delist its Shares from Nasdaq and deregister them under the Exchange Act as promptly as practicable after the Effective Time - The Company must cooperate to delist Shares from Nasdaq and deregister them under the Exchange Act[423] - Delisting and deregistration should occur as promptly as practicable after the Effective Time, and no more than 10 days after the Closing Date[423] Section 5.06. Takeover Statutes This section requires the Company to use its reasonable best efforts to prevent any antitakeover statutes from applying to the merger and to minimize their effects if they become applicable - The Company must use reasonable best efforts to prevent antitakeover statutes from applying to the merger[425] - If antitakeover statutes become applicable, the Company must take actions to eliminate or minimize their effects[425] Section 5.07. Interim Communications by the Company This section requires the Company to keep Parent reasonably informed of any material communications regarding the merger disseminated to its stakeholders, ensuring consistency with public statements - The Company must keep Parent reasonably informed of material communications to stakeholders regarding the merger[426] - Such communications must be consistent with joint public statements or those made in accordance with Section 7.03, unless Parent consents otherwise[426] Section 5.08. Tax Sharing Agreements This section mandates that any Tax Sharing Agreement involving the Company Tax Group will be terminated as of the Effective Time, with all payments due prior to the Closing Date - Any Tax Sharing Agreement involving the Company Tax Group will terminate at the Effective Time[427] - All payments due under such agreements must be made prior to the Closing Date[427] Section 5.09. Transaction Litigation This section requires the Company to promptly notify Parent of any litigation related to the merger, allowing Parent to participate in its defense and settlement - The Company must promptly advise Parent of any Transaction Litigation[428] - Parent will have the opportunity to participate in the defense, prosecution, settlement, or compromise of such litigation[428] - The Company cannot settle Transaction Litigation without Parent's prior written consent[429] Section 5.10. Notification to Holders of Certain Securities This section obligates the Company to provide timely written notice to holders of Series X Preferred Shares, Company Pre-Funded Warrants, and Company Common Warrants regarding the merger - The Company must provide written notice to holders of Series X Preferred Shares at least 20 days prior to the expected Closing Date[430] - The Company must provide written notice to holders of Company Pre-Funded Warrants at least 10 days prior to the Closing Date[431] - The Company must promptly provide notice to holders of Company Common Warrants[432] Section 5.11. Resignation of Directors and Officers This section requires the Company to obtain and deliver resignations from its directors and officers, effective at the Effective Time, upon Parent's written request - The Company must obtain and deliver resignations from its directors and officers, effective at the Effective Time, upon Parent's written request[433] ARTICLE 6 COVENANTS OF PARENT This article outlines the specific obligations and restrictions placed upon BioCryst Pharmaceuticals and Merger Sub during the interim period, ensuring commitment to the transaction and post-merger responsibilities Section 6.01. Conduct of Parent and Merger Sub This section requires Parent and Merger Sub to conduct their businesses in the ordinary course and lists specific actions prohibited without the Company's prior written consent - Parent and Merger Sub must conduct their businesses in the ordinary course consistent with past practices until the Effective Time[435] - Prohibited actions without Company's consent include materially adverse amendments to organizational documents, acquisitions that would prevent/delay the merger, or incurring debt (other than Debt Financing) that would impair the merger[436][437] - Parent must cause Merger Sub to perform its obligations and consummate the Merger[439] Section 6.02. Director and Officer Liability This section commits Parent to indemnify former and present officers and directors of the Company for six years post-merger and to maintain D&O insurance, subject to a premium cap - Parent must indemnify and hold harmless Indemnified Persons (former/present officers/directors of Company/Subsidiaries) for six years post-merger[439] - Parent must maintain D&O insurance for six years post-merger, with coverage no less advantageous than existing policies, subject to a Premium Cap of 300% of the last fiscal year's annual premium[441] - The Company may obtain a fully paid, non-cancellable six-year 'tail' D&O policy prior to the Effective Time, subject to the Premium Cap[442] - These rights survive the merger and are enforceable by Indemnified Persons[445] Section 6.03. Employee Matters This section outlines Parent's commitments regarding Continuing Employees' compensation and benefits for one year post-merger, including service recognition and the termination/rollover of Company 401(k) plans - For one year post-merger, Continuing Employees will receive no less than their prior base salary/wages and annual target bonus opportunity[446] - Continuing Employees will receive severance payments and benefits no less favorable than those in Schedule 6.03(a) and other benefits substantially comparable in aggregate to similarly situated Parent employees[447] - Parent will recognize prior service with the Company for vesting, eligibility, and severance benefit levels under Parent Benefit Plans[448] - If requested by Parent, the Company will terminate its 401(k) Plans, and Parent will designate a Parent DC Plan for rollover of account balances for DC Employees[452] - The Company ESPP will be terminated as of the day prior to closing, with no new offering or purchase periods[454] Section 6.04. Parent Stock Listing This section obligates Parent to use its reasonable best efforts to ensure that the shares of Parent Common Stock to be issued in the merger are approved for listing on Nasdaq by the Effective Time - Parent must use reasonable best efforts to get Parent Common Stock issued in the merger approved for listing on Nasdaq[456] - Listing approval should occur as promptly as practicable after Form S-4 effectiveness, and by or prior to the Effective Time[456] ARTICLE 7 COVENANTS OF PARENT AND THE COMPANY This article outlines the mutual obligations and joint efforts required from both BioCryst Pharmaceuticals and Astria Therapeutics to successfully complete the merger Section 7.01. Proxy Statement/Prospectus; Registration Statement; Company Stockholders' Meeting This section details the joint responsibility for preparing and filing SEC documents and the Company's obligation to hold a stockholders' meeting to obtain the Required Stockholder Approval - Parent and Company will jointly prepare and file the Proxy Statement/Prospectus and Form S-4 with the SEC[458] - Both parties will use reasonable best efforts to have the Form S-4 declared effective and ensure compliance with applicable laws[458] - The Company must call and hold a Company Stockholders' Meeting to obtain the Required Stockholder Approval[462] - The Company may postpone or adjourn the meeting under specific conditions, such as to solicit additional votes or if required by law, but generally not without Parent's consent[464] Section 7.02. Reasonable Best Efforts This section obligates both Parent and the Company to use their reasonable best efforts to consummate the merger, including obtaining consents, making antitrust filings, and defending against litigation - Both parties must use reasonable best efforts to consummate the merger, satisfy conditions, obtain governmental/third-party consents, and make necessary filings[466] - Both parties must make HSR Act filings within 20 Business Days and respond promptly to information requests from Governmental Authorities[467] - Parent has the principal responsibility for determining and implementing the strategy for obtaining antitrust clearances[468] - Neither party is required to pay fees or make accommodations to third parties to o