As filed with the Securities and Exchange Commission on August 12, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Apogee Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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93-4958665
(I.R.S. Employer
Identification Number)
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221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Michael Henderson, M.D.
Chief Executive Officer
Apogee Therapeutics, Inc.
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
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Ryan A. Murr
Branden C. Berns
Melanie E. Neary
Gibson, Dunn & Crutcher LLP
One Embarcadero, Suite 2600
San Francisco, CA 94111-3715
(415) 393-8373
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Matthew Batters
Chief Legal Officer and Secretary
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230
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Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This registration statement contains the following documents:
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a base prospectus which covers the offering, issuance and sale by us of an indeterminate amount of common stock, preferred stock, debt securities, warrants and/or units, in each case from time to time in one or more offerings; and
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a sales agreement prospectus supplement covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $300,000,000 of our common stock that may be issued and sold under an Open Market Sale AgreementSM, dated August 12, with Jefferies LLC (the “Sales Agreement”).
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus other than the shares under the Sales Agreement will be specified in a prospectus supplement to the base prospectus. The specific terms of the securities to be issued and sold under the Sales Agreement are specified in the sales agreement prospectus supplement that immediately follows the base prospectus.
PROSPECTUS
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
UNITS
From time to time, we may issue, in one or more series or classes, an indeterminate number of shares of our common stock, preferred stock, debt securities, warrants and/or units, at prices and on terms that we will determine at the time of the offering.
We may offer these securities through agents, underwriters or dealers or directly to investors. See “Plan of Distribution” in this prospectus. This prospectus provides you with a general description of the securities we may offer. Each time we offer securities, we will provide specific terms of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. We may not sell any securities under this prospectus without delivery of the applicable prospectus supplement. If information in any prospectus supplement is inconsistent with the information in this prospectus, then the information in that prospectus supplement will apply and will supersede the information in this prospectus.
You should read this prospectus, the applicable prospectus supplement and any related free writing prospectus carefully, as well as any documents incorporated by reference, before you invest in any of the securities being offered.
Our shares of common stock are listed on the Nasdaq Global Market under the symbol “APGE.” The last reported sale price of our common stock on the Nasdaq Global Market on August 7, 2024 was $40.87 per share. We recommend that you obtain current market quotations for our common stock prior to making an investment decision.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus beginning on page 5 and any applicable prospectus supplement, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Prospectus dated August 12, 2024
Table of Contents
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ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus from time to time in one or more offerings. This prospectus provides you with a general description of the securities we may offer.
Each time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. You should carefully read both this prospectus and any prospectus supplement together with additional information under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We have not authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus and any applicable prospectus supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
Unless the context otherwise requires, we use the terms “Apogee,” “company,” “we,” “us,” and “our” in this prospectus to refer to Apogee Therapeutics, Inc. and, where appropriate, our subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, contains “forward-looking statements” within the meaning of the federal securities laws, which statements are subject to substantial risks and uncertainties and are based on estimates and assumptions. All statements, other than statements of historical facts included in this prospectus, including statements concerning our plans, objectives, goals, strategies, future events, future revenues or performance, financing needs, plans or intentions relating to product candidates and markets and business trends and other information referred to under the section titled “Risk Factors” in this prospectus and the sections titled “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business” in our most recent Annual Report on Form 10-K and in our subsequent Quarterly Reports on Form 10-Q, as applicable, which are incorporated by reference herein, are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “might,” “will,” “shall,” “objective,” “intend,” “should,” “could,” “can,” “would,” “expect,” “anticipate,” “believe,” “design,” “estimate,” “predict,” “potential,” “plan” or “continue” or the negative of these terms and similar expressions intended to identify forward-looking statements. Forward-looking statements are not historical facts and reflect our current views with respect to future events. Given the significant uncertainties, you should not place undue reliance on these forward-looking statements.
There are a number of risks, uncertainties and other factors that could cause our actual results to differ materially from the forward-looking statements expressed or implied in this prospectus. Such risks, uncertainties and other factors include, among others, the following risks, uncertainties and factors:
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our plans to develop and commercialize our programs for the treatment of atopic dermatitis (“AD”), asthma, chronic obstructive pulmonary disease (“COPD”) and related inflammatory and immunology (“I&I”) indications with high unmet need;
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our ability to obtain funding for our operations, including funding necessary to complete the development and commercialization of our programs;
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the timing and focus of our ongoing and future preclinical studies and clinical trials and the reporting of data from those studies and trials;
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the beneficial characteristics, safety, efficacy and therapeutic effects of our programs;
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our plans relating to the further development of our programs, including additional indications we may pursue;
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the size of the market opportunity for our programs, including our estimates of the number of patients who suffer from the diseases we are targeting;
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our continued reliance on third parties to conduct additional preclinical studies and clinical trials of our programs and for the manufacture of our product candidates for preclinical studies and clinical trials;
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the success, cost and timing of our preclinical and clinical development activities and planned clinical trials;
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our plans regarding, and our ability to obtain and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize our programs;
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the timing of and our ability to obtain and maintain regulatory approvals for our programs, as well as future programs;
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the rate and degree of market acceptance and clinical utility of our programs;
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the success of competing treatments that are or may become available;
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our ability to attract and retain key management and technical personnel;
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our expectations regarding our ability to obtain, maintain and enforce intellectual property protection for our programs;
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our financial performance;
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the period over which we estimate our existing cash and cash equivalents, marketable securities and long-term marketable securities will be sufficient to fund our future operating expenses and capital expenditure requirements;
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our expectations regarding the period during which we will qualify as an emerging growth company under the Jumpstart Our Business Startups Act of 2012;
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our anticipated use of our existing resources; and
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other risks and uncertainties, including those incorporated by reference in “Risk Factors.”
There may be other factors that may cause our actual results to differ materially from the forward-looking statements expressed or implied in this prospectus, including factors disclosed in the section titled “Risk Factors” included in this prospectus and the sections titled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in our most recent Annual Report on Form 10-K and our subsequent Quarterly Reports on Form 10-Q, which are incorporated by reference herein. You should evaluate all forward-looking statements made in this prospectus in the context of these risks and uncertainties.
We caution you that the risks, uncertainties and other factors referred to above and elsewhere in this prospectus, any accompanying prospectus supplement, information incorporated by reference herein or therein, and any related free-writing prospectus may not contain all of the risks, uncertainties and other factors that may affect our future results and operations. Moreover, new risks will emerge from time to time. It is not possible for us to predict all risks. In addition, we cannot assure you that we will realize the results, benefits or developments that we expect or anticipate or, even if substantially realized, that they will result in the consequences or affect us or our business in the way expected and you should not place undue reliance on our forward-looking statements.
All forward-looking statements in this prospectus apply only as of the date made and are expressly qualified in their entirety by the cautionary statements included in this prospectus. Except as required by law, we disclaim any intent to publicly update or revise any forward-looking statements to reflect subsequent events or circumstances.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and you are cautioned not to unduly rely upon these statements.
THE COMPANY
Overview
We are a clinical stage biotechnology company advancing novel biologics with potential for differentiated efficacy and dosing in the largest I&I markets, including for the treatment of AD, asthma, COPD and other I&I indications. Our antibody programs are designed to overcome limitations of existing therapies by targeting well-established mechanisms of action and incorporating advanced antibody engineering to optimize half-life and other properties.
Our pipeline comprises four antibody programs being developed initially for the treatment of I&I indications as monotherapies and combinations. The Company’s most advanced program is APG777, which we are initially developing for the treatment of AD, the largest and least penetrated I&I market. Our other programs include APG808, APG990 and APG333. With four validated targets in our portfolio, we are seeking to achieve best in class efficacy and dosing through monotherapies and combinations of our novel antibodies. Based on a broad pipeline and depth of expertise, we believe we can deliver value and meaningful benefit to patients underserved by today’s standard of care. Our programs incorporate advanced antibody engineering to optimize half-life and other properties designed to overcome limitations of existing therapies. We believe each of our programs has potential for broad application across multiple I&I indications, including in combination.
Corporate Information
We commenced our operations in February 2022 as a Delaware limited liability company named Apogee Therapeutics, LLC. We were founded by leading healthcare investors, Fairmount Funds and Venrock Healthcare Capital Partners, and have since assembled a management team of drug developers and an executive team with significant experience in clinical development, manufacturing of biologics and leading public biopharmaceutical company operations, financing and transactions. Apogee Therapeutics, Inc., a successor to Apogee Therapeutics, LLC, was formed as a Delaware corporation in June 2023 in preparation for our initial public offering (“IPO”). We maintain a corporate headquarters in Waltham, Massachusetts, laboratory and office space in Boston, Massachusetts and otherwise operate virtually in the United States. Our mailing address is 221 Crescent St., Building 17, Suite 102b, Waltham, MA 02453, and our telephone number is (650) 394-5230. Our website address is www.apogeetherapeutics.com. The information contained on, or that can be accessed through, our website is not part of, and is not incorporated by reference into, this prospectus. We have included our website address in this prospectus solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our securities.
RISK FACTORS
Investing in our securities involves risks. You should carefully consider the risks, uncertainties and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that we have filed or will file with the SEC, and in other documents that are incorporated by reference into this prospectus, as well as the risk factors and other information contained in or incorporated by reference into any accompanying prospectus supplement, before investing in any of our securities. Our business, financial condition, results of operations, cash flows or prospects could be materially and adversely affected by any of these risks. The risks and uncertainties described in the documents incorporated by reference herein are not the only risks and uncertainties that you may face.
For more information about our SEC filings, please see “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Unless otherwise specified in a prospectus supplement accompanying this prospectus, the net proceeds from the sale by us of the securities to which this prospectus relates will be used for preclinical studies, clinical trials, and manufacturing in support of our antibody programs, as well as for additional research and development activities, working capital, and general corporate purposes. We may also use a portion of the proceeds to license, acquire or invest in complementary businesses, technology, products or assets, however, we have no current commitments to do so. Our expected use of proceeds from the sale of the securities offered hereby represents our current intentions based on our present plans and business condition. As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the proceeds to be received from the sale of the securities offered hereby or the amounts that we will actually spend on the uses set forth above.
Pending the use of the net proceeds, we may invest the proceeds in a variety of capital preservation investments, including interest-bearing, investment-grade securities, certificates of deposit or government securities. When we offer and sell the securities to which this prospectus relates, the prospectus supplement related to such offering will set forth our intended use of the proceeds, if any, received from the sale of such securities.
SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each security. The particular terms of any security will be described in the applicable prospectus supplement.
DESCRIPTION OF SECURITIES
General
The following is a summary of the material terms of our capital stock, as well as other material terms of our amended and restated certificate of incorporation and amended and restated bylaws and certain provisions of Delaware law. This summary does not purport to be complete and is qualified in its entirety by the provisions of our amended and restated certificate of incorporation and amended and restated bylaws, copies of which will be filed with the SEC as exhibits to the registration statement, of which this prospectus forms a part.
Our authorized capital stock consists of 386,513,358 shares of common stock, $0.00001 par value per share, 13,486,642 shares of non-voting common stock, $0.00001 par value per share, and 10,000,000 shares of “blank check” preferred stock, $0.00001 par value per share.
Common Stock and Non-Voting Common Stock
Our amended and restated certificate of incorporation authorizes the issuance of up to 386,513,358 shares of our common stock and 13,486,642 of our non-voting common stock. All outstanding shares of our common stock and non-voting common stock are validly issued, fully paid and nonassessable, and the shares of our common stock to be issued in connection with this offering will be validly issued, fully paid and nonassessable.
The holders of our common stock and our non-voting common stock have identical rights, provided that, (i) except as otherwise expressly provided in our amended and restated certificate of incorporation or as required by applicable law, on any matter that is submitted to a vote by our stockholders, holders of our common stock are entitled to one vote per share of common stock, and holders of our non-voting common stock are not entitled to any votes per share of non-voting common stock, including for the election of directors, and (ii) holders of our common stock have no conversion rights, while holders of our non-voting common stock shall have the right to convert each share of our non-voting common stock into one share of common stock at such holder’s election, provided that as a result of such conversion, such holder, together with its affiliates and any members of a Schedule 13(d) group with such holder, would not beneficially own in excess of 9.99% of our common stock immediately prior to and following such conversion, unless otherwise as expressly provided for in our amended and restated certificate of incorporation (the “Beneficial Ownership Limitation”). However, the Beneficial Ownership Limitation may be increased or decreased to any other percentage (not to exceed 19.99%) designated by such holder of non-voting common stock upon 61 days’ notice to us.
Voting Rights. Our common stock is entitled to one vote per share on any matter that is submitted to a vote of our stockholders, except on matters relating solely to terms of preferred stock, and our non-voting common stock is not entitled to any votes per share. However, as long as any shares of non-voting common stock are outstanding, we will not, without the affirmative vote of the holders of a majority of the then outstanding shares of non-voting common stock, (i) alter or change adversely the powers, preferences or rights given to the non-voting common stock, alter, amend or repeal any provision of, or add any provision to, the amended and restated certificate of incorporation or amended and restated bylaws of Apogee Therapeutics, Inc., or file any articles of amendment, certificate of designations, preferences, limitations and relative rights of any series of preferred stock, if such action would adversely alter or change the preferences, rights, privileges or powers of, or restrictions provided for the benefit of the non-voting common stock, regardless of whether any of the foregoing actions shall be by means of amendment to our amended and restated certificate of incorporation or by merger, consolidation or otherwise, (ii) issue further shares of non-voting common stock or increase or decrease the number of authorized shares of non-voting common stock, (iii) prior to the Stockholder Approval (as defined in our amended and restated certificate of incorporation) or at any time while at least 6,061,821 shares of non-voting common stock remain issued and outstanding, consummate either: (A) any Fundamental Transaction (as defined in our amended and restated certificate of incorporation) or (B) any merger or consolidation of Apogee Therapeutics, Inc. with or into another entity or any stock sale to, or other business combination in which the stockholders of Apogee
Therapeutics, Inc. immediately before such transaction do not hold at least a majority of the capital stock of Apogee Therapeutics, Inc. immediately after such transaction or (iv) enter into any agreement with respect to any of the foregoing.
Except as otherwise expressly provided in our amended and restated certificate of incorporation or required by applicable law, all shares of common stock and non-voting common stock have the same rights and privileges and rank equally, share ratably, and are identical in all respects for all matters, including those described below. Our amended and restated certificate of incorporation does not provide for cumulative voting in the election of directors.
Dividends. Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock and non-voting common stock are entitled to receive ratably any dividends declared by our board of directors (our “Board”) out of funds legally available therefor if our Board, in its discretion, determines to issue dividends and then only at the times and in the amounts that our Board may determine to issue dividends and then only at the times and in the amounts that our Board may determine.
Liquidation Rights. In the event of our liquidation, dissolution or winding-up, the holders of our common stock and non-voting common stock will be entitled to share equally, identically, and ratably in all assets remaining after payment of or provision for any liabilities, liquidation preferences and accrued or declared but unpaid dividends, if any, with respect to any outstanding preferred stock, unless a different treatment is approved by the affirmative vote of the holders of a majority of the outstanding shares of such affected class, voting separately as a class.
Other Rights. The holders of our common stock and non-voting common stock have no preemptive rights. There are no redemption or sinking fund provisions applicable to our common stock and non-voting common stock.
Preferred Stock
As of August 7, 2024, there were no shares of our preferred stock outstanding.
Under the terms of our amended and restated certificate of incorporation, our Board has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to fix the designations, powers, preferences, and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions, if any, of the shares of each such series.
Our Board may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock and non-voting common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control and may adversely affect the market price of our common stock and non-voting common stock and the voting and other rights of the holders of our common stock and non-voting common stock. We have no current plans to issue any shares of preferred stock.
Registration Rights
We have entered into a registration rights agreement with the holders of 24,987,750 shares of our common stock (including shares of common stock issuable upon conversion of our non-voting common stock). The registration of shares of our common stock pursuant to the exercise of registration rights described below would enable holders to sell these shares without restriction under the Securities Act when the registration statement is declared effective. We will pay all expenses related to any demand, piggyback or Form S-3 registration described below, with the exception of underwriting discounts, selling commissions, and stock transfer taxes.
The registration rights described below will expire upon the earliest to occur of: (i) three years after the completion of our IPO; (ii) the closing of a merger or consolidation in which (A) we are constituent party or (B) a subsidiary of ours is a constituent party and we issue shares of our capital stock pursuant to such
merger or consolidation; or (iii), with respect to any particular holder, at such time that such holder can sell its shares, under Rule 144 or another similar exemption under the Securities Act of 1933 during any three-month period without registration.
Form S-1 Demand Registration Rights. The holders of registrable securities who are party to the registration rights agreement (the “Registration Rights Holders”) are entitled to certain demand registration rights. At any time, Registration Rights Holders who hold a majority of the registrable securities then outstanding may request that we file a Form S-1 registration statement for which the anticipated aggregate offering price would exceed $20,000,000.
Form S-3 Demand Registration Rights. Subject to limitations and conditions, Registration Rights Holders who hold at least 30% of the registrable securities then outstanding may make a written request that we prepare and file a registration statement on Form S-3 under the Securities Act covering their shares, so long as the aggregate price to the public, net of the underwriters’ discounts and commissions, is at least $5,000,000. We will prepare and file the Form S-3 registration statement as requested, unless, in the good faith judgment of our Board, such registration would be materially detrimental to us and our stockholders and filing should be deferred. We may defer only once in any 12-month period, and such deferral shall not exceed 90 days after receipt of the request. In addition, we are not obligated to prepare or file any of these registration statements (i) during the period that is 30 or 60 days, as the case may be, before our good faith estimate of the date of filing of, and ending on a date that is 180 days after the effective date of, a Company-initiated registration or (ii) if two of these registrations have been completed within any 12-month period.
Piggyback Registration Rights. Subject to certain specified exceptions, if we propose to register any of our securities under the Securities Act either for our own account or for the account of other stockholders, the Registration Rights Holders are entitled to notice and certain “piggyback” registration rights allowing them to include their shares in our registration statement. These registration rights are subject to specified conditions and limitations, including the right of the underwriters, in their sole discretion, to limit the number of shares included in any such offering under certain circumstances, but not below 30% of the total amount of securities included in such offering.
Anti-Takeover Effects of Our Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws and Delaware Law
Our amended and restated certificate of incorporation and our amended and restated bylaws include a number of provisions that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our Board rather than pursue non-negotiated takeover attempts.
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Issuance of undesignated preferred stock: Under our amended and restated certificate of incorporation, our Board has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our Board. The existence of authorized but unissued shares of preferred stock enables our Board to make it more difficult to attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise.
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Classified board: Our amended and restated certificate of incorporation establishes a classified Board consisting of three classes of directors, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders to succeed the directors of the same class whose terms are then expiring, with the other classes continuing for the remainder of their respective three-year terms. This provision may have the effect of delaying a change in control of our Board.
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Election and removal of directors and board vacancies: Our amended and restated bylaws provide that directors will be elected by a plurality vote. Our amended and restated certificate of incorporation and amended and restated bylaws also provide that our Board has the right to increase or decrease the size of the Board and to fill vacancies on the Board. Directors may be removed only for cause by the affirmative vote of at least 66 2∕3% of the voting power of the stock outstanding and entitled to vote thereon (which, for the avoidance of doubt, does not include non-voting common stock). Only our Board is authorized to fill vacant directorships. In addition, the number of directors constituting
our Board may be set only by resolution adopted by a majority vote of the directors then in office. These provisions prevent stockholders from increasing the size of our Board and gaining control of our Board by filling the resulting vacancies with its own nominees.
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Requirements for advance notification of stockholder nominations and proposals: Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors that specify certain requirements as to the timing, form and content of a stockholder’s notice. Business that may be conducted at an annual meeting of stockholders are limited to those matters properly brought before the meeting. These provisions may make it more difficult for our stockholders to bring matters before our annual meeting of stockholders or to nominate directors at annual meetings of stockholders.
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No written consent of stockholders: Our amended and restated certificate of incorporation provides that all stockholder actions be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written consent in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent the removal of directors by our stockholders without holding a meeting of stockholders.
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No stockholder ability to call special meetings: Our amended and restated certificate of incorporation and amended and restated bylaws provide that only our Board may be able to call special meetings of stockholders and only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders.
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Amendments to certificate of incorporation and bylaws: Any amendment to our amended and restated certificate of incorporation is required to be approved by a majority of our Board as well as, if required by law or our amended and restated certificate of incorporation, a majority of the outstanding shares entitled to vote on the amendment and a majority of the outstanding shares of each class entitled to vote thereon as a class, except that the amendment of provisions to Board classification, stockholder action, certificate amendments and liability of directors and officers must be approved by not less than 66 2∕3% of the outstanding shares entitled to vote on the amendment, voting together as a single class. Any amendment to our amended and restated bylaws is required to be approved by either a majority of our Board or not less than 66 2∕3% of the outstanding shares entitled to vote on the amendment, voting together as a single class (which, for the avoidance of doubt, does not include non-voting common stock).
These provisions are designed to enhance the likelihood of continued stability in the composition of our Board and its policies, to discourage certain types of transactions that may involve an actual or threatened acquisition of our company and to reduce our vulnerability to an unsolicited acquisition proposal. We also designed these provisions to discourage certain tactics that may be used in proxy fights. However, these provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they may also reduce fluctuations in the market price of our shares that could result from actual or rumored takeover attempts.
Delaware General Corporation Law Section 203
As a Delaware corporation, we are also subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law (the “DGCL”), which prohibits a Delaware corporation from engaging in a business combination specified in the statute with an interested stockholder (as defined in the statute) for a period of three years after the date of the transaction in which the person first becomes an interested stockholder, unless the business combination is approved in advance by a majority of the independent directors or by the holders of at least two-thirds of the outstanding disinterested shares. The application of Section 203 of the DGCL could also have the effect of delaying or preventing a change of control of us.
Exclusive Forum Selection Clause
Our amended and restated certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the sole and exclusive forum to the fullest extent permitted by law for: (i) any derivative action or proceeding brought on our behalf; (ii) any action asserting a breach of fiduciary duty owed by any director, officer or other employee to us or our stockholders; (iii) any action asserting a
claim against us or any director or officer or other employee arising pursuant to the DGCL; (iv) any action to interpret, apply, enforce or determine the validity of our amended and restated certificate of incorporation or amended and restated bylaws; or (v) any other action asserting a claim that is governed by the internal affairs doctrine, shall be the Court of Chancery of the State of Delaware (or another state court or the federal court located within the State of Delaware if the Court of Chancery does not have or declines to accept jurisdiction), in all cases subject to the court’s having jurisdiction over indispensable parties named as defendants. Our amended and restated certificate of incorporation provides that the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act but the forum selection provisions will not apply to claims brought to enforce a duty or liability created by the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of imposing additional costs on stockholders in pursuing any such claims or limiting a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes, which may discourage lawsuits against us or our directors or officers. It is possible that a court could find that such provisions are inapplicable for a particular claim or action or that such provisions are unenforceable. In addition, under the Securities Act, federal courts have concurrent jurisdiction over all suits brought to enforce any duty or liability created by the Securities Act, and investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder.
Transfer Agent and Registrar
Equiniti Trust Company, LLC serves as the transfer agent and registrar for our common stock. The address of the transfer agent and registrar is 6201 15th Avenue, Brooklyn, NY 11219.
Listing
Our common stock is listed on The Nasdaq Global Market under the symbol “APGE.” Our non-voting common stock is not listed on any securities exchange.
Debt Securities
The paragraphs below describe the general terms and provisions of the debt securities we may issue. When we offer to sell a particular series of debt securities, we will describe the specific terms of the securities in a supplement to this prospectus, including any additional covenants or changes to existing covenants relating to such series. The prospectus supplement also will indicate whether the general terms and provisions described in this prospectus apply to a particular series of debt securities. You should read the actual indenture if you do not fully understand a term or the way we use it in this prospectus.
If we issue debt securities at a discount from their principal amount, then, for purposes of calculating the aggregate initial offering price of the offered securities issued under this prospectus, we will include only the initial offering price of the debt securities and not the principal amount of the debt securities.
We have summarized below the material provisions of the indenture, or indicated which material provisions will be described in the related prospectus supplement. The prospectus supplement relating to any particular securities offered will describe the specific terms of the securities, which may be in addition to or different from the general terms summarized in this prospectus. We have included the form of the indenture as an exhibit to our registration statement of which this prospectus is a part, and it is incorporated into this prospectus by reference. Because the summary in this prospectus and in any prospectus supplement does not contain all of the information that you may find useful, you should read the documents relating to the securities that are described in this prospectus or in any applicable prospectus supplement. Please read “Where You Can Find More Information” in this prospectus to find out how you can obtain a copy of those documents. References below to an “indenture” are references to the indenture, as supplemented, under which a particular series of debt securities is issued. As used under this caption, the term “debt securities” includes the debt securities being offered by this prospectus and all other debt securities issued by us under the indenture.
General
The indenture:
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does not limit the amount of debt securities that we may issue;
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allows us to issue debt securities in one or more series;
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does not require us to issue all of the debt securities of a series at the same time; and
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allows us to reopen a series to issue additional debt securities without the consent of the holders of the debt securities of such series.
The prospectus supplement for each offering of debt securities will provide the following terms, where applicable:
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the title of the debt securities and whether they are senior, senior subordinated or subordinated debt securities;
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the aggregate principal amount of the debt securities being offered and any limit on their aggregate principal amount, and, if the series is to be issued at a discount from its face amount, the method of computing the accretion of such discount;
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the price at which the debt securities will be issued, expressed as a percentage of the principal and, if other than the full principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof or, if applicable, the portion of the principal amount of such debt securities that is convertible into common stock or preferred stock or the method by which any such portion shall be determined;
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if convertible, the terms on which such debt securities are convertible, including the initial conversion price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or at our option, the conversion or exchange period, and any other provision in relation thereto, and any applicable limitations on the ownership or transferability of common stock or preferred stock received on conversion;
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the date or dates, or the method for determining the date or dates, on which the principal of the debt securities will be payable;
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the fixed or variable interest rate or rates of the debt securities, or the method by which the interest rate or rates is determined;
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the date or dates, or the method for determining the date or dates, from which interest will accrue;
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the dates on which interest will be payable;
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the record dates for interest payment dates, or the method by which we will determine those dates;
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the persons to whom interest will be payable;
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the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
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any collateral securing the performance of our obligations under the debt securities;
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the place or places where the principal of, premium, if any, and interest on, the debt securities will be payable;
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where the debt securities may be surrendered for registration of transfer or conversion or exchange;
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where notices or demands to or upon us in respect of the debt securities and the applicable indenture may be served;
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any provisions regarding our right to redeem or purchase debt securities or the right of holders to require us to redeem or purchase debt securities;
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any right or obligation we have to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision;
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the currency or currencies (including any composite currency) in which the debt securities are denominated and payable if other than United States dollars, and the currency or currencies (including any composite currency) in which principal, premium, if any, and interest, if any, will be payable, and if such payments may be made in a currency other than that in which the debt securities are denominated, the manner for determining such payments, including the time and manner of determining the exchange rate between the currency in which such securities are denominated and the currency in which such securities or any of them may be paid, and any additions to, modifications of or deletions from the terms of the debt securities to provide for or to facilitate the issuance of debt securities denominated or payable in a currency other than U.S. dollars;
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whether the amount of payments of principal of, premium, if any, or interest on, the debt securities may be determined according to an index, formula or other method and how such amounts will be determined;
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whether the debt securities will be in registered form, bearer form or both, and the terms of these forms;
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whether the debt securities will be issued in whole or in part in the form of a global security and, if applicable, the identity of the depositary for such global security;
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any provision for electronic issuance of the debt securities or issuance of the debt securities in uncertificated form;
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whether and upon what terms the debt securities of such series may be defeased or discharged, if different from the provisions set forth in the indenture for the series to which the supplemental indenture or authorizing resolution relates;
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any provisions granting special rights to holders of securities upon the occurrence of such events as specified in the applicable prospectus supplement;
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any deletions from, modifications of, or additions to our events of default or covenants or other provisions set forth in the indenture for the series to which the supplemental indenture or authorizing resolution relates; and
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any other material terms of the debt securities, which may be different from the terms set forth in this prospectus.
We may issue debt securities at a discount below their principal amount and provide for less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities. We refer to any such debt securities throughout this prospectus as “original issue discount securities.” The applicable prospectus supplement will describe the United States federal income tax consequences and other relevant considerations applicable to original issue discount securities.
Neither the DGCL nor our governing instruments define the term “substantially all” as it relates to the sale of assets. Additionally, Delaware cases interpreting the term “substantially all” rely upon the facts and circumstances of each particular case. Consequently, to determine whether a sale of “substantially all” of our assets has occurred, a holder of debt securities must review the financial and other information that we have disclosed to the public.
The applicable prospectus supplement will also describe any material covenants to which a series of debt securities will be subject and the applicability of those covenants to any of our subsidiaries to be restricted thereby, which are referred to herein as “restricted subsidiaries.” The applicable prospectus supplement will also describe provisions for restricted subsidiaries to cease to be restricted by those covenants.
Events of Default
Unless the applicable prospectus supplement states otherwise, when we refer to “events of default” as defined in the indentures with respect to any series of debt securities, we mean:
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our failure to pay interest on any debt security of such series when the same becomes due and payable and the continuance of any such failure for a period of 30 days;
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our failure to pay the principal or premium of any debt security of such series when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise;
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our failure or the failure of any restricted subsidiary to comply with any of its agreements or covenants in, or provisions of, the debt securities of such series or the indenture (as they relate thereto) and such failure continues for a period of 60 days after our receipt of notice of the default from the trustee or from the holders of at least 25 percent in aggregate principal amount of the then outstanding debt securities of that series (except in the case of a default with respect to the provisions of the indenture regarding the consolidation, merger, sale, lease, conveyance or other disposition of all or substantially all of the assets of us (or any other provision specified in the applicable supplemental indenture or authorizing resolution), which will constitute an event of default with notice but without passage of time); or
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the occurrence of certain events of bankruptcy, insolvency or reorganization with respect to Apogee or any restricted subsidiary of Apogee that is a significant subsidiary (as defined in the indenture).
If an event of default occurs and is continuing with respect to debt securities of any series outstanding, then the trustee or the holders of 25% or more in principal amount of the outstanding debt securities of that series will have the right to declare the principal amount of all the debt securities of that series to be due and payable immediately. However, the holders of at least a majority in principal amount of outstanding debt securities of such series may rescind and annul such declaration and its consequences, except an acceleration due to nonpayment of principal or interest on such series, if the rescission would not conflict with any judgment or decree and if all existing events of default with respect to such series have been cured or waived.
The indenture also provides that the holders of at least a majority in principal amount of the outstanding debt securities of any series, by notice to the trustee, may, on behalf of all holders, waive any existing default and its consequences with respect to such series of debt securities, other than any event of default in payment of principal or interest.
The indenture will require the trustee to give notice to the holders of debt securities within 90 days after the trustee obtains knowledge of a default that has occurred and is continuing. However, the trustee may withhold notice to the holders of any series of debt securities of any default, except a default in payment of principal or interest, if any, with respect to such series of debt securities, if the trustee considers it in the interest of the holders of such series of debt securities to do so.
The holders of a majority of the outstanding principal amount of the debt securities of any series will have the right to direct the time, method and place of conducting any proceedings for any remedy available to the trustee with respect to such series, subject to limitations specified in the indenture.
Amendment, Supplement and Waiver
Without notice to or the consent of any holder, we and the trustee may amend or supplement the indenture or the debt securities of a series:
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to cure any ambiguity, omission, defect or inconsistency;
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to comply with the provisions of the indenture regarding the consolidation, merger, sale, lease, conveyance or other disposition of all or substantially all of our assets;
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to provide that specific provisions of the indenture shall not apply to a series of debt securities not previously issued or to make a change to specific provisions of the indenture that only applies to any series of debt securities not previously issued or to additional debt securities of a series not previously issued;
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to create a series and establish its terms;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to release a guarantor in respect of any series which, in accordance with the terms of the indenture applicable to such series, ceases to be liable in respect of its guarantee;
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to add a guarantor subsidiary in respect of any series of debt securities;
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to secure any series of debt securities;
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to add to the covenants of Apogee for the benefit of the holders or surrender any right or power conferred upon Apogee;
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to appoint a successor trustee with respect to the securities;
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act;
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to make any change that does not adversely affect the rights of holders; or
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to conform the provisions of the indenture to the final offering document in respect of any series of debt securities.
The indenture will provide that we and the trustee may amend or supplement any provision of the debt securities of a series or of the indenture relating to such series with the written consent of the holders of at least a majority in principal amount of the outstanding debt securities of such series. However, without the consent of each holder of a debt security the terms of which are directly amended, supplemented or waived, an amendment, supplement or waiver may not:
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reduce the amount of debt securities of such series whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest, including defaulted interest;
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reduce the principal of or extend the fixed maturity of any debt security or alter the provisions with respect to redemptions or mandatory offers to repurchase debt securities of a series in a manner adverse to holders;
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make any change that adversely affects any right of a holder to convert or exchange any debt security into or for shares of our common stock or other securities, cash or other property in accordance with the terms of such security;
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modify the ranking or priority of the debt securities of the relevant series;
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release any guarantor of any series from any of its obligations under its guarantee or the indenture otherwise than in accordance with the terms of the indenture;
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make any change to any provision of the indenture relating to the waiver of existing defaults, the rights of holders to receive payment of principal and interest on the debt securities, or to the provisions regarding amending or supplementing the indenture or the debt securities of a particular series with the written consent of the holders of such series, except to increase the percentage required for modification or waiver or to provide for consent of each affected holder of debt securities of such series;
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waive a continuing default or event of default in the payment of principal of or interest on the debt securities; or
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make any debt security payable at a place or in money other than that stated in the debt security, or impair the right of any holder of a debt security to bring suit as permitted by the indenture.
The holders of a majority in aggregate principal amount of the outstanding debt securities of such series may, on behalf of all holders of debt securities of that series, waive any existing default under, or compliance with, any provision of the debt securities of a particular series or of the indenture relating to a particular series of debt securities, other than any event of default in payment of interest or principal.
Defeasance
The indenture will permit us to terminate all our respective obligations under the indenture as they relate to any particular series of debt securities, other than the obligation to pay interest, if any, on and the principal of the debt securities of such series and certain other obligations, at any time by:
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depositing in trust with the trustee, under an irrevocable trust agreement, money or government obligations in an amount sufficient to pay principal of and interest, if any, on the debt securities of such series to their maturity or redemption; and
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complying with other conditions, including delivery to the trustee of an opinion of counsel to the effect that holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise.
The indenture will also permit us to terminate all of our respective obligations under the indenture as they relate to any particular series of debt securities, including the obligations to pay interest, if any, on and the principal of the debt securities of such series and certain other obligations, at any time by:
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depositing in trust with the trustee, under an irrevocable trust agreement, money or government obligations in an amount sufficient to pay principal of and interest, if any, on the debt securities of such series to their maturity or redemption; and
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complying with other conditions, including delivery to the trustee of an opinion of counsel to the effect that (A) we have received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date such series of debt securities were originally issued, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall state that, holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise.
In addition, the indenture will permit us to terminate substantially all our respective obligations under the indenture as they relate to a particular series of debt securities by depositing with the trustee money or government obligations sufficient to pay all principal and interest on such series at its maturity or redemption date if the debt securities of such series will become due and payable at maturity within one year or are to be called for redemption within one year of the deposit.
Transfer and Exchange
A holder will be able to transfer or exchange debt securities only in accordance with the indenture. The registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the indenture.
Concerning the Trustee
The indenture will contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in specified cases or to realize on property received in respect of any such claim as security or otherwise. The indenture will permit the trustee to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict or resign.
The indenture will provide that in case an event of default occurs and is not cured, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of such person’s own affairs. The trustee shall be under no obligation to exercise any of the rights or powers vested in it by the indenture at the request or direction of any of the holders pursuant to the indenture, unless such holders shall have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
No Recourse Against Others
The indenture will provide that there is no recourse under any obligation, covenant or agreement in the applicable indenture or with respect to any debt security against any of our or our successor’s past, present or future stockholders, employees, officers or directors.
Governing Law
The laws of the State of New York will govern the indenture and the debt securities.
Warrants
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series, from time to time. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from those securities.
If we issue warrants, they will be evidenced by warrant agreements or warrant certificates issued under one or more warrant agreements, which are contracts between us and an agent for the holders of the warrants. We urge you to read the prospectus supplement related to any series of warrants we may offer, as well as the complete warrant agreement and warrant certificate that contain the terms of the warrants. If we issue warrants, forms of warrant agreements and warrant certificates relating to warrants for the purchase of common stock, preferred stock and debt securities will be incorporated by reference into the registration statement of which this prospectus is a part from reports we would subsequently file with the SEC.
Units
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain United States federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
We may also sell equity securities covered by this registration statement in an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price, either:
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on or through the facilities of the Nasdaq Global Market or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or
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to or through a market maker otherwise than on the Nasdaq Global Market or such other securities exchanges or quotation or trading services.
Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
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the name or names of any underwriters, dealers or agents, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or re-allowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities related to offerings pursuant to this prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we offer, other than our shares of common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any underwriters who are qualified market makers on the Nasdaq Global Market may engage in passive market making transactions in the securities on the Nasdaq Global Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
LEGAL MATTERS
Certain legal matters, including the legality of the securities offered, will be passed upon for us by Gibson, Dunn & Crutcher LLP, San Francisco, California. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Apogee Therapeutics, Inc., at December 31, 2023 and 2022, and for the period from February 4, 2022 (inception) to December 31, 2022 and the year ended December 31, 2023, incorporated by reference in this prospectus and the registration statement have been audited by Ernst & Young, LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firms as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC, and we have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which forms part of the registration statement, does not contain all of the information included in the registration statement, including its exhibits and schedules. For further information about us and the securities described in this prospectus, you should refer to the registration statement, its exhibits and schedules and our reports, proxies, information statements and other information filed with the SEC.
Our filings are available to the public on the Internet, through a database maintained by the SEC at www.sec.gov. We also maintain a website at www.apogeetherapeutics.com. We have included our website address for the information of prospective investors and do not intend it to be an active link to our website. Information contained on our website does not constitute a part of this prospectus or any applicable prospectus supplement (or any document incorporated by reference herein or therein).
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important information to you by referring you to those publicly available documents. The information incorporated by reference is an important part of this prospectus, and information that we file after the date hereof with the SEC will automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents listed below:
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our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 5, 2024 (and any portions of our Definitive Proxy Statement on Schedule 14A filed on April 24, 2024 that are incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2023); and
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024, filed with the SEC on May 13, 2024 and August 12, 2024, respectively;
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on July 10, 2023, including any amendments or reports filed for the purposes of updating this description.
Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded.
This prospectus incorporates by reference the documents listed above and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of the initial registration statement and the effectiveness of the registration statement and following the effectiveness of the registration statement until the offering of the securities under the registration statement is terminated or completed, except that we are not incorporating by reference any information furnished (and not filed) with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K (unless expressly provided to the contrary).
You may request a copy of these filings (other than exhibits to such documents unless such exhibits are specifically incorporated by reference herein), at no cost, by contacting us, either orally or in writing, at the following:
Apogee Therapeutics, Inc.
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230
Information about us, including our reports filed with the SEC, is available through our website at www.apogeetherapeutics.com. Such reports are accessible at no charge through our website and are made available as soon as reasonably practicable after such material is filed with or furnished to the SEC. Our website and the information contained on that website, or connected to that website, are not incorporated by reference in this prospectus. We have authorized no one to provide you with any information that differs from that contained in this prospectus. Accordingly, we take no responsibility for any other information that others may give you. You should not assume that the information in this prospectus is accurate as of any date other than the date of the front cover of this prospectus.
PROSPECTUS SUPPLEMENT
Up to $300,000,000
Common Stock
We have entered into an Open Market Sale AgreementSM (the “Sales Agreement”) with Jefferies LLC (“Jefferies” or the “Sales Agent”) relating to shares of our common stock, $0.00001 par value per share. Under this prospectus supplement and the accompanying prospectus, and in accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $300,000,000 from time to time through the Sales Agent.
Our common stock is listed on the Nasdaq Global Market under the trading symbol “APGE.” On August 7, 2024, the last reported sale price of our common stock was $40.87 per share.
We have two classes of common stock: the voting common stock offered hereby and non-voting common stock. We are offering voting common stock in this offering, and unless otherwise noted, all references in this prospectus to our “common stock” refers to our voting common stock. The rights of the holders of common stock and non-voting common stock are identical, except with respect to voting and conversion. Each share of common stock is entitled to one vote and is not convertible into any other class of our share capital. Shares of non-voting common stock are non-voting, except as otherwise expressly provided in our amended and restated certificate of incorporation and as may be required by law. Each share of non-voting common stock may be converted at any time into one share of common stock at the option of its holder, subject to the beneficial ownership limitations provided for in our amended and restated certificate of incorporation. The non-voting common stock will not be listed for trading on any securities exchange.
Sales of our common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Sales Agent is not required to sell any specific number or dollar amounts of securities but will act as sales agent using commercially reasonable efforts consistent with their normal trading and sales practices, on mutually agreed terms between the Sales Agent and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The Sales Agent will be entitled to compensation at a commission of 3.0% of the aggregate gross sales price per share sold under the Sales Agreement, unless otherwise agreed to by the Sales Agent and the Company. In connection with the sale of our common stock on our behalf, the Sales Agent will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of the Sales Agent will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contributions to the Sales Agent against certain civil liabilities, including liabilities under the Securities Act. See “Plan of Distribution” beginning on page S-11 of this prospectus supplement for additional information regarding the Sales Agent’s compensation.
Investing in our common stock involves a high degree of risk. Before making an investment decision, you should review carefully and consider all of the information set forth in this prospectus supplement, the accompany prospectus and the documents incorporated by reference in this prospectus supplement. See “Risk Factors” beginning on page S-4 of this prospectus supplement and in the documents incorporated by reference herein.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We are an “emerging growth company” under the federal securities laws and are subject to reduced public company reporting requirements.
Jefferies
The date of this prospectus supplement is August 12, 2024.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
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S-14
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ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement is part of an automatic shelf registration statement that we have filed with the Securities and Exchange Commission (“SEC”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act utilizing a “shelf” registration process. Under the shelf registration statement, we may sell an unspecified amount of securities from time to time. Under this prospectus supplement, we may offer shares of our common stock having an aggregate offering price of up to $300,000,000 from time to time at prices and on terms to be determined by market conditions at the time of offering.
We provide information to you about this offering of shares of our common stock in two separate documents that are bound together: (1) this prospectus supplement, which describes the specific details regarding this offering; and (2) the accompanying prospectus, which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If information in this prospectus supplement is inconsistent with the accompanying prospectus, you should rely on this prospectus supplement. However, if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus supplement — the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.
We have not, and the Sales Agent has not, authorized any other person to provide you with any information or to make any representations other than those contained in or incorporated by reference in this prospectus supplement, the accompanying prospectus and any free writing prospectus prepared by or on behalf of us or to which we have referred you. We and the Sales Agent take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the Sales Agent are not making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference into this prospectus supplement and in any free writing prospectus that we may authorize for use in connection with this offering is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus supplement, the accompanying prospectus, the documents incorporated by reference into this prospectus supplement and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus supplement titled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus supplement and the accompanying prospectus and the offering of our common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus supplement and the accompanying prospectus must inform themselves about, and observe any restrictions relating to, the offering of our common stock and the distribution of this prospectus supplement and the accompanying prospectus supplement outside the United States. This prospectus supplement and the accompanying prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This prospectus supplement, the accompanying prospectus and the information incorporated herein and therein by reference include trademarks, servicemarks and tradenames owned by us or other companies. All trademarks, servicemarks and tradenames included or incorporated by reference in this prospectus supplement or the accompanying prospectus are the property of their respective owners.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights selected information and does not contain all of the information that you should consider before deciding to invest in our common stock. You should read the entire prospectus supplement, including the information incorporated by reference herein, the accompanying prospectus and any related free writing prospectus, carefully, including the section titled “Risk Factors” contained in this prospectus supplement, the accompanying prospectus and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus supplement, and our financial statements and notes thereto included in our most recent Annual Report on Form 10-K, which are incorporated by reference herein, before making an investment decision. Some of the statements in this summary constitute forward-looking statements, see “Special Note Regarding Forward-Looking Statements.” In this prospectus supplement, unless the context requires otherwise, references to “we,” “us,” “our,” “Apogee” or the “company” refer Apogee Therapeutics, Inc., in each case together with its consolidated subsidiaries.
Our Company
Overview
We are a clinical stage biotechnology company advancing novel biologics with potential for differentiated efficacy and dosing in the largest inflammatory and immunology (“I&I”) markets, including for the treatment of atopic dermatitis (“AD”), asthma, chronic obstructive pulmonary disease (“COPD”) and other I&I indications. Our antibody programs are designed to overcome limitations of existing therapies by targeting well-established mechanisms of action and incorporating advanced antibody engineering to optimize half-life and other properties.
Our pipeline comprises four antibody programs being developed initially for the treatment of I&I indications as monotherapies and combinations. The Company’s most advanced program is APG777, which we are initially developing for the treatment of AD, the largest and least penetrated I&I market. Our other programs include APG808, APG990 and APG333. With four validated targets in our portfolio, we are seeking to achieve best in class efficacy and dosing through monotherapies and combinations of our novel antibodies. Based on a broad pipeline and depth of expertise, we believe we can deliver value and meaningful benefit to patients underserved by today’s standard of care. Our programs incorporate advanced antibody engineering to optimize half-life and other properties designed to overcome limitations of existing therapies. We believe each of our programs has potential for broad application across multiple I&I indications, including in combination.
Corporate Information
We commenced our operations in February 2022 as a Delaware limited liability company named Apogee Therapeutics, LLC. We were founded by leading healthcare investors, Fairmount Funds and Venrock Healthcare Capital Partners, and have since assembled a management team of drug developers and an executive team with significant experience in clinical development, manufacturing of biologics and leading public biopharmaceutical company operations, financing and transactions. Apogee Therapeutics, Inc., a successor to Apogee Therapeutics, LLC, was formed as a Delaware corporation in June 2023 in preparation for our initial public offering. We maintain a corporate headquarters in Waltham, Massachusetts, laboratory and office space in Boston, Massachusetts and otherwise operate virtually in the United States. Our mailing address is 221 Crescent St., Building 17, Suite 102b, Waltham, MA 02453, and our telephone number is (650) 394-5230. Our website address is www.apogeetherapeutics.com. The information contained on, or that can be accessed through, our website is not part of, and is not incorporated by reference into, this prospectus. We have included our website address in this prospectus solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our securities.
THE OFFERING
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $300,000,000.
Common stock and non-voting common stock to be outstanding after this offering
Up to 65,821,561 shares (of which 52,334,919 shares will be common stock), assuming sales of 7,340,347 shares of our common stock in this offering at an assumed offering price of $40.87 per share, which was the last reported sale price of our common stock on the Nasdaq Global Market on August 7, 2024. The actual number of shares issued will vary depending on the sales prices at which our common stock is sold under this offering.
“At the market offering” that may be made from time to time through the Sales Agent. See “Plan of Distribution” on page S-11 of this prospectus supplement.
We currently intend to use the net proceeds from this offering, if any, for preclinical studies, clinical trials, and manufacturing in support of our antibody programs, as well as for additional research and development activities, working capital, and general corporate purposes. See “Use of Proceeds” on page S-8 of this prospectus supplement.
You should read the “Risk Factors” section of this prospectus supplement and the accompanying prospectus and in the documents incorporated by reference into this prospectus supplement for a discussion of factors you should carefully consider before deciding to purchase shares of our common stock.
Nasdaq Global Market symbol
“APGE”
The number of our shares of common stock and non-voting common stock outstanding after this offering is based on an aggregate of 58,481,214 shares of our common stock and non-voting common stock (of which 44,994,572 shares are common stock, which includes 1,804,749 shares of unvested restricted common stock) outstanding as of June 30, 2024, and excludes the following:
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2,873,471 shares of our common stock issuable upon the exercise of stock options outstanding as of June 30, 2024 under our 2023 Equity Incentive Plan (“2023 Plan”) at a weighted-average exercise price of $24.35 per share;
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100,000 shares of our common stock issuable upon the exercise of stock options outstanding as of June 30, 2024 under the Non-Plan Stock Option Grant (the “Option Grant”) at a weighted-average exercise price of $23.60 per share;
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126,101 shares of our common stock issuable upon the vesting of restricted stock units outstanding as of June 30, 2024 under our 2023 Plan;
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6,103,739 shares of our common stock reserved for future issuance pursuant to future awards under the 2023 Plan, as well as any automatic increase in the number of shares of common stock reserved for future issuance under our 2023 Plan, as of June 30, 2024; and
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946,832 shares of our common stock reserved for future issuance under our 2023 Employee Stock Purchase Plan (“ESPP”), as well as any automatic increase in the number of shares of common stock reserved for future issuance under our ESPP, as of June 30, 2024.
Except as otherwise indicated, all information in this prospectus assumes no exercise of outstanding options and no vesting of restricted stock units or restricted common stock after June 30, 2024.
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks and uncertainties described below and discussed under the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K, and in our subsequent Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus supplement in their entirety, together with other information in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering. The risks described in these documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below titled “Special Note Regarding Forward-Looking Statements.”
Additional Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds from this offering, and may not use the proceeds effectively.
While we currently intend to use the net proceeds from this offering, if any, for preclinical studies, clinical trials, and manufacturing in support of our antibody programs, as well as for additional research and development activities, working capital, and general corporate purposes, because we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have broad discretion as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You may experience immediate and substantial dilution.
The offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that 7,340,347 shares of our common stock are sold in this offering, based on an assumed sale price of $40.87 per share, the last sale price of a share of our common stock on the Nasdaq Global Market on August 7, 2024, you will experience immediate dilution, representing the difference between the price you pay and our as adjusted net tangible book value per share as of June 30, 2024, after giving effect to this offering, of $24.68 per share. The exercise of outstanding stock options may result in further dilution of your investment. See the section titled “Dilution” below for a more detailed illustration of the dilution you would incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
To raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
It is not possible to predict the aggregate proceeds resulting from sales made under the Sales Agreement.
Subject to certain limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver placement notices to the Sales Agent at any time throughout the term of the Sales Agreement. The number of shares that are sold through the Sales Agent after delivering a placement notice will fluctuate based on a number of factors, including the market price of our common stock during the
sales period, any limits we may set with the Sales Agent in any applicable placement notice and the demand for our common stock. Because the price per share of each share sold pursuant to the Sales Agreement will fluctuate over time, it is not currently possible to predict the aggregate proceeds to be raised in connection with sales under the Sales Agreement.
Sales of common stock offered hereby will be in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and accordingly may experience different levels of dilution and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and number of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions we may place in any applicable placement notice delivered to the Sales Agent, there is no minimum or maximum sales price for shares to be sold in this offering. Investors may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the prices they paid.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying prospectus contain “forward-looking statements” within the meaning of the federal securities laws, which statements involve substantial risks and uncertainties. In some cases, you can identify forward-looking statements by terms such as “may,” “might,” “will,” “objective,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “design,” “estimate,” “predict,” “potential,” “plan,” “anticipate,” “target,” “forecast” or the negative of these terms, and similar expressions intended to identify forward-looking statements.
Forward-looking statements involve known and unknown risks, uncertainties and other factors that could cause our actual results to differ materially from the forward-looking statements expressed or implied in this prospectus supplement and the accompanying prospectus. Such risks, uncertainties and other factors include, among others, the factors disclosed in the section titled “Risk Factors” in this prospectus supplement and the accompanying prospectus and the sections titled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our most recent Annual Report on Form 10-K, and in our subsequent Quarterly Reports on Form 10-Q, which are incorporated by reference herein, and the following risks, uncertainties and factors:
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our plans to develop and commercialize our programs for the treatment of AD, asthma, COPD and related I&I indications with high unmet need;
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our ability to obtain funding for our operations, including funding necessary to complete the development and commercialization of our programs;
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the timing and focus of our ongoing and future preclinical studies and clinical trials and the reporting of data from those studies and trials;
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the beneficial characteristics, safety, efficacy and therapeutic effects of our programs;
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our plans relating to the further development of our programs, including additional indications we may pursue;
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the size of the market opportunity for our programs, including our estimates of the number of patients who suffer from the diseases we are targeting;
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our continued reliance on third parties to conduct additional preclinical studies and clinical trials of our programs and for the manufacture of our product candidates for preclinical studies and clinical trials;
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the success, cost and timing of our preclinical and clinical development activities and planned clinical trials;
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our plans regarding, and our ability to obtain and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize our programs;
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the timing of and our ability to obtain and maintain regulatory approvals for our programs, as well as future programs;
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the rate and degree of market acceptance and clinical utility of our programs;
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the success of competing treatments that are or may become available;
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our ability to attract and retain key management and technical personnel;
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our expectations regarding our ability to obtain, maintain and enforce intellectual property protection for our programs;
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our financial performance;
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the period over which we estimate our existing cash and cash equivalents, marketable securities and long-term marketable securities will be sufficient to fund our future operating expenses and capital expenditure requirements;
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our expectations regarding the period during which we will qualify as an emerging growth company under the Jumpstart Our Business Startups Act of 2012;
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our anticipated use of our existing resources and the net proceeds from this offering; and
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other risks and uncertainties, including those incorporated by reference in the section titled “Risk Factors.”
We caution you that the risks, uncertainties and other factors referred to above, elsewhere in this prospectus supplement and the accompanying prospectus and in the documents incorporated by reference herein may not contain all of the risks, uncertainties and other factors that may affect our future results and operations. Moreover, new risks will emerge from time to time. It is not possible for our management to predict all risks. In addition, we cannot assure you that we will realize the results, benefits or developments that we expect or anticipate or, even if substantially realized, that they will result in the consequences or affect us or our business in the way expected. Forward-looking statements are not historical facts and reflect our current views with respect to future events. Given the significant uncertainties, you should evaluate all forward-looking statements made in this prospectus supplement and the accompanying prospectus in the context of these risks and uncertainties and not place undue reliance on these forward-looking statements as predictions of future events.
All forward-looking statements in this prospectus supplement apply only as of the date made and are expressly qualified in their entirety by the cautionary statements included in this prospectus supplement. We disclaim any intent to publicly update or revise any forward-looking statements to reflect subsequent events or circumstances, except as required by law.
USE OF PROCEEDS
We may offer and sell shares of our common stock having an aggregate offering price of up to $300,000,000 from time to time through Jefferies. Because there is no minimum offering amount required pursuant to the Sales Agreement, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. Actual net proceeds will depend on the number of shares we sell and the prices at which such sales occur. There can be no assurance that we will sell any shares under or fully utilize the Sales Agreement with the Sales Agent as a source of financing.
We currently intend to use the net proceeds from this offering, if any, for preclinical studies, clinical trials, and manufacturing in support of our antibody programs, as well as for additional research and development activities, working capital, and general corporate purposes. We may also use a portion of the proceeds to license, acquire or invest in complementary businesses, technology, products or assets, however, we have no current commitments to do so.
The amounts and timing of our use of the net proceeds from this offering will depend on a number of factors, such as the timing and progress of our research, development and manufacturing efforts, the timing and progress of any commercialization and partnering efforts, technological advances and the competitive environment for our products. As of the date of this prospectus supplement, we cannot specify with certainty all of the particular uses for the net proceeds to us from the sale of the securities offered by us hereunder. Accordingly, our management will have broad discretion in the timing and application of these proceeds. Pending application of the net proceeds as described above, we intend to invest the proceeds in a variety of capital preservation investments, including interest-bearing, investment-grade securities, certificates of deposit or government securities.
DILUTION
If you purchase common stock in this offering, your ownership interest will be immediately diluted to the extent of the difference between the purchase price per share of our common stock and the as adjusted net tangible book value per share of common stock and non-voting common stock immediately after giving effect to this offering. Our net tangible book value as of June 30, 2024 was $773.6 million, or $13.23 per share of common stock and non-voting common stock. Our net tangible book value is the amount of our total tangible assets less our total liabilities. Net tangible book value per share of common stock and non-voting common stock represents net tangible book value divided by an aggregate of 58,481,214 shares of our common stock and non-voting common stock outstanding as of June 30, 2024 (which includes 1,804,749 shares of unvested restricted common stock).
After giving effect to the assumed sale of 7,340,347 shares of our common stock at a sale price of $40.87 per share, the last reported sale price of our common stock on the Nasdaq Global Market on August 7, 2024, after deducting commissions and estimated aggregate offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2024, would have been $1,065.9 million, or approximately $16.19 per share of common stock and non-voting common stock. This represents an immediate increase in the as adjusted net tangible book value of $2.96 per share to our existing stockholders and an immediate dilution of approximately $24.68 per share to new investors purchasing shares of common stock in this offering. Dilution per share to new investors is determined by subtracting as adjusted net tangible book value per share of common stock and non-voting common stock after this offering from the assumed public offering price per share paid by new investors. The following table illustrates this per share dilution:
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Assumed offering price per share
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40.87 |
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Net tangible book value per share as of June 30, 2024
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13.23 |
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Increase in net tangible book value per share attributable to new investors in offering
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2.96 |
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As adjusted net tangible book value per share as of June 30, 2024, after giving effect to this offering
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$ |
16.19 |
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Dilution per share to new investors in this offering
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$ |
24.68 |
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The above illustration of dilution per share to investors participating in this offering assumes no exercise of outstanding options to purchase our common stock.
Changes in the assumed public offering price of $40.87 per share would not affect our as adjusted net tangible book value after this offering because this offering is currently limited to $300,000,000. However, each $1.00 increase (decrease) in the assumed public offering price of $40.87 per share would increase (decrease) the dilution per share to new investors by approximately $0.95 per share (($0.96) per share), assuming that the aggregate dollar amount of shares offered by us, as set forth above, remains at $300,000,000 and after deducting the commissions and estimated offering expenses payable by us. The information discussed above is illustrative only and will adjust based on the actual public offering price, the actual number of shares that we offer in this offering, and other terms of this offering determined at the time of each offer and sale.
The number of our shares of common stock and non-voting common stock outstanding after this offering is based on an aggregate of 58,481,214 shares of our common stock and non-voting common stock (of which 44,994,572 shares are common stock, which includes 1,804,749 shares of unvested restricted common stock) outstanding as of June 30, 2024, and excludes the following:
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2,873,471 shares of our common stock issuable upon the exercise of stock options outstanding as of June 30, 2024 under our 2023 Plan at a weighted-average exercise price of $24.35 per share;
•
100,000 shares of our common stock issuable upon the exercise of stock options outstanding as of June 30, 2024 under the Option Grant at a weighted-average exercise price of $23.60 per share;
•
126,101 shares of our common stock issuable upon the vesting of restricted stock units outstanding as of June 30, 2024 under our 2023 Plan;
•
6,103,739 shares of our common stock reserved for future issuance pursuant to future awards under the 2023 Plan, as well as any automatic increase in the number of shares of common stock reserved for future issuance under our 2023 Plan, as of June 30, 2024; and
•
946,832 shares of our common stock reserved for future issuance under our ESPP, as well as any automatic increase in the number of shares of common stock reserved for future issuance under our ESPP, as of June 30, 2024.
To the extent that options outstanding as of June 30, 2024 have been or are exercised, or other shares are issued, investors purchasing shares in this offering could experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
PLAN OF DISTRIBUTION
We have entered into the Sales Agreement with Jefferies, under which we may offer and sell our shares of common stock from time to time through Jefferies acting as agent. Pursuant to this prospectus supplement, we may offer and sell up to $300,000,000 of our shares of common stock. Sales of our shares of common stock, if any, under this prospectus supplement and the accompanying prospectus will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell shares of common stock under the Sales Agreement, we will notify Jefferies of the number of shares to be issued, the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Jefferies under the Sales Agreement to sell our shares of common stock are subject to a number of conditions that we must meet.
The settlement of sales of shares between us and Jefferies is generally anticipated to occur on the first trading day following the date on which the sale was made. Sales of our shares of common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission of 3.0% of the aggregate gross proceeds we receive from each sale of our shares of common stock, unless otherwise agreed to by the Sales Agent and the Company. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In addition, we have agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the Sales Agreement, in an amount not to exceed $75,000, in addition to certain ongoing disbursements of its legal counsel, unless we and Jefferies otherwise agree. We estimate that the total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the Sales Agreement, will be approximately $250,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares.
Jefferies will provide written confirmation to us before the open on the Nasdaq Global Market on the day following each day on which shares of common stock are sold under the Sales Agreement. Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of the shares of common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.
The offering of our shares of common stock pursuant to the Sales Agreement will terminate as permitted therein.
This summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions. A copy of the Sales Agreement is filed as an exhibit to the registration statement of which this prospectus supplement forms a part.
Jefferies and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
A prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus supplement and the accompanying prospectus electronically.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Gibson, Dunn & Crutcher LLP. Jefferies LLC is being represented in this offering by Cooley LLP, New York, New York.
EXPERTS
The consolidated financial statements of Apogee Therapeutics, Inc., at December 31, 2023 and 2022, and for the period from February 4, 2022 (inception) to December 31, 2022 and the year ended December 31, 2023, incorporated by reference in this prospectus and the registration statement have been audited by Ernst & Young, LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firms as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement (including amendments and exhibits to the registration statement) on Form S-3 under the Securities Act with respect to the shares of our common stock offered hereby. This prospectus supplement, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some items of which are contained in exhibits to the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our common stock, we refer you to the registration statement and its exhibits. Statements contained in this prospectus supplement concerning the contents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement in this prospectus supplement relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. The exhibits to the registration statement should be reviewed for the complete contents of these contracts and documents. A copy of the registration statement and its exhibits may be obtained from the SEC upon the payment of fees prescribed by it. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding companies that file electronically with it.
We are subject to the information and periodic and current reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith, file periodic and current reports, proxy statements and other information with the SEC. The registration statement, such periodic and current reports and other information can be obtained electronically by means of the SEC’s website at www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important information to you by referring you to those publicly available documents. The information incorporated by reference is an important part of this prospectus supplement, and information that we file after the date hereof with the SEC will automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents listed below:
•
our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 5, 2024 (and any portions of our Definitive Proxy Statement on Schedule 14A filed on April 24, 2024 that are incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2023); and
•
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024, filed with the SEC on May 13, 2024 and August 12, 2024, respectively;
•
•
the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on July 10, 2023, including any amendments or reports filed for the purposes of updating this description.
Because we are incorporating by reference future filings with the SEC, this prospectus supplement is continually updated and those future filings may modify or supersede some of the information included or incorporated by reference in this prospectus supplement. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus supplement or in any document previously incorporated by reference have been modified or superseded.
This prospectus supplement incorporates by reference the documents listed above and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of the initial registration statement and the effectiveness of the registration statement and following the effectiveness of the registration statement until the offering of the securities under the registration statement is terminated or completed, except that we are not incorporating by reference any information furnished (and not filed) with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K (unless expressly provided to the contrary).
You may request a copy of these filings (other than exhibits to such documents unless such exhibits are specifically incorporated by reference herein), at no cost, by contacting us, either orally or in writing, at the following:
Apogee Therapeutics, Inc.
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230
Information about us, including our reports filed with the SEC, is available through our website at www.apogeetherapeutics.com. Such reports are accessible at no charge through our website and are made available as soon as reasonably practicable after such material is filed with or furnished to the SEC. Our website and the information contained on that website, or connected to that website, are not incorporated by reference in this prospectus supplement. We have authorized no one to provide you with any information that differs from that contained in this prospectus supplement. Accordingly, we take no responsibility for any other information that others may give you. You should not assume that the information in this prospectus supplement is accurate as of any date other than the date of the front cover of this prospectus supplement.
Up to $300,000,000
Common Stock
PROSPECTUS SUPPLEMENT
Jefferies
August 12, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of the fees and expenses, other than the underwriting discounts and commissions, payable by the registrant in connection with the issuance and distribution of the securities being registered.
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Amount
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SEC registration fee
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$ |
* |
|
|
|
FINRA filing fee
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|
|
|
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225,500 |
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|
|
Printing and engraving expenses
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|
|
|
|
** |
|
|
|
Legal fees and expenses
|
|
|
|
|
** |
|
|
|
Accounting fees and expenses
|
|
|
|
|
** |
|
|
|
Transfer agent and registrar fees and expenses
|
|
|
|
|
** |
|
|
|
Miscellaneous fees and expenses
|
|
|
|
|
** |
|
|
|
Total
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|
|
|
$ |
** |
|
|
*
The registrant is deferring payment of the registration fee for the securities offered under this registration statement in reliance on Rule 456(b) and Rule 457(r) under the Securities Act.
**
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
The company is a Delaware corporation. Section 145(a) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or the state of Delaware or the court in which such action or suit was brought shall determine, upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Further subsections of DGCL Section 145 provide that:
(1)
to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (i) and
(ii) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith;
(2)
the indemnification and advancement of expenses provided for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and
(3)
the corporation shall have the power to purchase and maintain insurance of behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145.
As used in this Item 14, the term “proceeding” means any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the company, and whether civil, criminal, administrative, investigative or otherwise.
Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The company’s organizational documents provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the company will indemnify any and all of its officers and directors. The company has entered into indemnification agreements with its officers and directors. The company may, in its discretion, similarly indemnify its employees and agents. The company’s amended and restated certificate of incorporation also relieves its directors from monetary damages to the company or its stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for failure to act in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for willful or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends or (v) for any transactions from which the director derived an improper personal benefit.
The company has purchased and expects to maintain insurance policies that, within the limits and subject to the terms and conditions thereof, cover certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the company.
The underwriting agreements that we may enter into may provide for the indemnification by the underwriters of us and our officers and directors for certain liabilities, including liabilities arising under the Securities Act, and afford certain rights of contribution with respect thereto.
Item 16. Exhibits
A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
*
To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in this registration statement, including a Current Report on Form 8-K.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the applicable rules thereunder.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Waltham, Commonwealth of Massachusetts, on August 12, 2024.
Apogee Therapeutics, Inc.
By:
/s/ Michael Henderson, M.D.
Michael Henderson, M.D.
Director and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Michael Henderson, M.D., Jane Pritchett Henderson and Matthew Batters, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place or stead, in any and all capacities (including, without limitation, the capacities listed below), to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates set forth opposite their names.
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Signature
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Title
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Date
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/s/ Michael Henderson, M.D.
Michael Henderson, M.D.
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Director and Chief Executive Officer
(principal executive officer)
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August 12, 2024
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/s/ Jane Pritchett Henderson
Jane Pritchett Henderson
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Chief Financial Officer
(principal financial and accounting officer)
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August 12, 2024
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/s/ Mark C. McKenna
Mark C. McKenna
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Chair and Director
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August 12, 2024
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/s/ Peter Harwin
Peter Harwin
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Director
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August 12, 2024
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/s/ Jennifer Fox
Jennifer Fox
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Director
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August 12, 2024
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/s/ Andrew Gottesdiener, M.D.
Andrew Gottesdiener, M.D.
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Director
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August 12, 2024
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/s/ Tomas Kiselak
Tomas Kiselak
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Director
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August 12, 2024
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/s/ William Jones, Jr.
William Jones, Jr.
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Director
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August 12, 2024
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Signature
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Title
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Date
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/s/ Nimish Shah
Nimish Shah
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Director
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August 12, 2024
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/s/ Lisa Bollinger
Lisa Bollinger
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Director
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August 12, 2024
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Exhibit 1.2
OPEN MARKET SALE AGREEMENTSM
August 12, 2024
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Apogee Therapeutics, Inc.,
a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell
from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”), shares of the Company’s
common stock, par value $0.00001 per share (the “Common Shares”), on the terms set forth in this agreement (this “Agreement”).
Section 1. DEFINITIONS
(a) Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective
meanings:
“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such first- mentioned Person. The term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agency Period”
means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date on which the Agent
shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated pursuant to
Section 7.
“Commission”
means the U.S. Securities and Exchange Commission.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Floor Price Limitation”
means the minimum price per share set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable
period set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance
Notice by delivering written notice of such change to the Agent and which in no event shall be less than $10.00 per share without the
prior written consent of the Agent, which may be withheld in the Agent’s sole discretion.
“Issuance Amount”
means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.
“Issuance Notice”
means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached hereto as Exhibit A
that is executed by its Chief Executive Officer Chief Financial Officer.
SM “Open Market Sale Agreement” is a service
mark of Jefferies LLC
“Issuance Notice
Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered pursuant to Section 3(b)(i).
“Issuance Price”
means the Sales Price less the Selling Commission.
“Maximum Program
Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of Common Shares
registered under the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) the number
of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of any outstanding securities
of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the number or dollar amount of Common
Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (d) the number or
dollar amount of Common Shares for which the Company has filed a Prospectus (defined below).
“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any kind.
“Principal Market”
means the Nasdaq Global Market or such other national securities exchange on which the Common Shares, including any Shares, are then listed.
“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Selling Commission”
means three percent (3.0%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the Company
and the Agent with respect to any Shares sold pursuant to this Agreement.
“Settlement Date”
means the first business day following each Trading Day during the period set forth in the Issuance Notice on which Shares are sold pursuant
to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold on such Trading Day and the Agent shall deliver
to the Company the Issuance Price received on such sales.
“Shares”
means the Company’s Common Shares issued or issuable pursuant to this Agreement.
“Trading Day”
means any day on which the Principal Market is open for trading.
Section 2. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date (defined below) and (5) as of each Time of Sale (defined below) (each of the
times referenced above is referred to herein as a “Representation Date”), except as may be disclosed in the Prospectus
(including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date, and unless
such representation, warranty or agreement specifies a different time:
(a) Registration
Statement. The Company has prepared and filed or will file with the Commission a shelf registration statement on Form S-3 that
contains a base prospectus (the “Base Prospectus”). Such registration statement registers the issuance and sale by
the Company of the Shares under the Securities Act. The Company may file one or more additional registration statements from time to time
that will contain a base prospectus and related prospectus or prospectus supplement, if applicable, with respect to the Shares. Except
where the context otherwise requires, such registration statement(s), including any information deemed to be a part thereof pursuant to
Rule 430B under the Securities Act, including all financial statements, exhibits and schedules thereto and all documents incorporated
or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended
or supplemented, is herein referred to as the “Registration Statement,” and the Base Prospectus constituting a part
of such registration statement(s), together with any prospectus supplement filed with the Commission pursuant to Rule 424(b) under
the Securities Act relating to a particular issuance of the Shares, including all documents incorporated or deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time amended or supplemented,
is referred to herein as the “Prospectus,” except that if any revised prospectus is provided to the Agent by the Company
for use in connection with the offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under
the Securities Act, the term “Prospectus” shall refer to such revised prospectus from and after the time it is first
provided to the Agent for such use. The Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” As used in this Agreement, the terms “amendment” or “supplement” when applied
to the Registration Statement or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document
under the Exchange Act after the date hereof that is or is deemed to be incorporated therein by reference.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in or otherwise deemed
under the Securities Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of any specified
date; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include, without limitation, the filing of any document under the Exchange Act which is or is deemed to be incorporated by
reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the Prospectus,
as the case may be, as of any specified date. The Company’s obligations under this Agreement to furnish, provide or deliver or make
available (and all other similar references) copies of any report or statement shall be deemed satisfied if the same is filed with the
Commission through its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
At the time the Original Registration
Statement becomes automatically effective and at the time the Company’s most recent annual report on Form 10-K was filed with
the Commission, if later, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act. During the
Agency Period, each time the Company files an annual report on Form 10-K the Company will meet the then-applicable requirements for
use of Form S-3 under the Securities Act.
(b) Compliance
with Registration Requirements. The Original Registration Statement and any Rule 462(b) Registration Statement have been
or will automatically be declared effective upon filing with the Commission under the Securities Act. The Company has complied, to the
Commission’s satisfaction, with all requests of the Commission for additional or supplemental information, if any. No stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings
for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission.
The Prospectus, when filed,
complied or will comply in all material respects with the Securities Act and, if filed with the Commission through EDGAR (except as may
be permitted by Regulation S T under the Securities Act), was identical to the copy thereof delivered to the Agent for use in connection
with the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it became or becomes effective and at each Representation Date, complied and will comply
in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the date of this Agreement,
the Prospectus and any Free Writing Prospectus (as defined below) considered together (collectively, the “Time of Sale Information”)
did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The Prospectus, as amended or supplemented, as of its date
and at each Representation Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing
by the Agent expressly for use therein, it being understood and agreed that only such information furnished by the Agent to the Company
consists of the information described in Section 6 below. There are no contracts or other documents required to be described
in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. The Registration
Statement and the offer and sale of the Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act
and comply in all material respects with said rule.
(c) Free
Writing Prospectuses. As of the determination date referenced in Rule 164(h) under the Securities Act, the Company was not,
is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of the Shares pursuant to Rules 164,
405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each Free
Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements
of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending, as applicable, and each
such Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of
the Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement or the Prospectus unless such information has been superseded or modified as of such time. The representations
and warranties set forth in the immediately preceding sentence do not apply to statements made in reliance upon and in conformity with
written information relating to the Agent furnished to the Company in writing by the Agent expressly for use therein. Except for the Free
Writing Prospectus, if any, and electronic road shows, if any, furnished to the Agent before first use, the Company has not prepared,
used or referred to, and will not, without the Agent’s prior written consent (which consent shall not be unreasonably withheld,
conditioned or delayed), prepare, use or refer to, any Free Writing Prospectus.
(d) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, as applicable,
and, when read together with the other information in the Prospectus, do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become effective and at each Time of Sale (as defined below), as the case may be,
will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Agreement.
This Agreement has been duly authorized, executed and delivered by the Company.
(g) Authorization
of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered
by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and the issuance
and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
the Shares that have not been duly waived or satisfied.
(h) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived or satisfied.
(i) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been no material adverse change,
or any development that would reasonably be expected to result in a material adverse change, in (A) the condition, financial or otherwise,
or in the earnings, business, properties, operations, operating results, assets, liabilities or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity or (B) the ability
of the Company to consummate the transactions contemplated by this Agreement or perform its obligations hereunder (any such change being
referred to herein as a “Material Adverse Change”); (ii) the Company and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference
with their business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from
any strike, labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate, to the
Company and its subsidiaries, considered as one entity, and have not entered into any material transactions not in the ordinary course
of business; and (iii) there has not been any material decrease in the capital stock or any material increase in any short-term or
long-term indebtedness of the Company or its subsidiaries and there has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or other subsidiaries, by any of the Company’s subsidiaries on
any class of capital stock, or any repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(j) Independent
Accountants. Ernst & Young LLP, which has expressed its opinion with respect to the financial statements of the Company and
its consolidated subsidiary (which term as used in this Agreement includes the related notes thereto) filed with the Commission as a part
of and incorporated by reference into the Registration Statement and the Prospectus, is (i) an independent registered public accounting
firm as required by the Securities Act and the rules of the Public Company Accounting Oversight Board (“PCAOB”),
(ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation
S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been
suspended or revoked and who has not requested such registration to be withdrawn.
(k) Financial
Statements. The financial statements of the Company incorporated by reference in the Registration Statement and the Prospectus present
fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as of the dates indicated and
the results of their operations, changes in stockholders’ equity and cash flows for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting principles (“GAAP”) as applied in the United States
applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto, and except
in the case of unaudited financial statements, which are subject to normal and recurring year-end adjustments and do not contain certain
footnotes as permitted by the applicable rules of the Commission. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects
and has been prepared in accordance with the Commission’s rules and guidelines. No other financial statements or supporting
schedules are required to be included or incorporated by reference in the Registration Statement or the Prospectus. The financial data
set forth in each of the Registration Statement and the Prospectus fairly present, in all material respects, the information set forth
therein on a basis consistent with that of the audited financial statements contained in the Registration Statement and the Prospectus.
To the Company’s knowledge, no person who has been suspended or barred from being associated with a registered public accounting
firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the PCAOB, has participated in or otherwise
aided the preparation of, or audited, the financial statements, supporting schedules or other financial data filed with the Commission
as a part of the Registration Statement and the Prospectus.
(l) Company’s
Accounting System. The Company and its subsidiaries make and keep books and records that are accurate in all material respects and
maintain a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP as applied in the United States and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and
(v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(m) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established and
maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are designed
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which
the periodic reports required under the Exchange Act are being prepared, it being understood that neither subsection (l) nor this
subsection (m) requires the Company to comply with Section 404 of the Sarbanes Oxley Act of 2002 as of an earlier date than
it would otherwise be required to so comply under applicable law; (ii) are designed such that management of the Company will evaluate
effectiveness thereof as of the end of the Company’s most recent fiscal quarter, as required by the Exchange Act; and (iii) are
effective in all material respects to perform the functions for which they were established. Since the end of the Company’s most
recent audited fiscal year, there have been no significant deficiencies or material weaknesses in the Company’s internal control
over financial reporting (whether or not remediated) and no change in the Company’s internal control over financial reporting that
has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s internal control over financial
reporting. The Company is not aware of any change in its internal control over financial reporting that has occurred during its most recent
fiscal quarter that has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s internal
control over financial reporting.
(n) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where a failure to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Change.
(o) Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement
and the Prospectus, except where the failure to be in good standing would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Change. Each of the Company’s subsidiaries is duly qualified as a foreign corporation, partnership
or limited liability company, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be in good
standing would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. All of the issued
and outstanding capital stock or other equity or ownership interests of each of the Company’s subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding capital stock or equity interest
in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such subsidiary. The constitutive
or organizational documents of each of the subsidiaries comply in all material respects with the requirements of applicable laws of its
jurisdiction of incorporation or organization and are in full force and effect. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Form S-1
filed on June 22, 2023 or the Company’s most recent annual report on Form 10-K.
(p) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration
Statement and the Prospectus under the captions “Description of Securities,” “Prospectus Supplement Summary,”
and “The Offering” as of the dates set forth therein (other than for subsequent issuances, if any, pursuant to employee benefit
plans, upon the exercise of outstanding options or warrants, in each case as described in the Registration Statement and the Prospectus).
All of the issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable and have
been issued in compliance with all applicable federal and state securities laws. None of the outstanding Common Shares were issued in
violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company
that have not been duly waived or satisfied. There are no authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock
of the Company, or any of its subsidiaries other than those described in the Registration Statement and the Prospectus. The descriptions
of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder,
set forth in the Registration Statement and the Prospectus accurately and fairly present, in all material respects, the information required
to be shown with respect to such plans, arrangements, options and rights.
(q) Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed
on the Principal Market, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal Market, nor has the Company received any
notification that the Commission or Nasdaq is contemplating terminating such registration or listing. To the Company’s knowledge,
it is in compliance with all applicable listing requirements of the Principal Market.
(r) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, or is in default
(or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture, loan, credit
agreement, note, lease, license agreement, contract, franchise or other instrument (including, without limitation, any pledge agreement,
security agreement, mortgage or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which
the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of their respective properties
or assets are subject (each, an “Existing Instrument”), except for such Defaults as would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change. The Company’s execution, delivery and performance of this
Agreement, consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus and the issuance
and sale of the Shares (including the use of proceeds from the sale of the Shares as described in the Registration Statement and the Prospectus
under the caption “Use of Proceeds”) (i) have been duly authorized by all necessary corporate action and will not result
in any violation of the provisions of the charter or by-laws, partnership agreement or operating agreement or similar organizational documents,
as applicable, of the Company or any of its subsidiaries, (ii) will not conflict with or constitute a breach of, or Default or a
Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing
Instrument, except for such conflicts, breaches, Default or Debt Repayment Triggering Events or liens, charges or encumbrances that would
not, singly or in the aggregate, result in a Material Adverse Change, and (iii) will not result in any violation of any law, administrative
regulation or administrative or court decree applicable to the Company or any of its subsidiaries, except for such violations as would
not be expected, individually or in the aggregate, to result in a Material Adverse Change. No consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Registration
Statement and the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities
Act and such as may be required under applicable state securities or blue sky laws or the Financial Industry Regulatory Authority, Inc
(“FINRA”). As used herein, a “Debt Repayment Triggering Event” means any event or condition which
gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(s) Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations,
except where failure to be so in compliance could not be expected, individually or in the aggregate, to result in a Material Adverse Change.
(t) No
Material Actions or Proceedings. There is no action, suit, proceeding, inquiry or investigation brought by or before any legal or
governmental entity now pending or, to the Company’s knowledge, threatened, against or affecting the Company or any of its subsidiaries,
which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. No material labor dispute
with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer, customer
or contractor of the Company, exists or, to the Company’s knowledge, is threatened or imminent, which would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change.
(u) Intellectual
Property Rights. The Company and its subsidiaries own, or have obtained valid and enforceable licenses for the material inventions,
patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described
in the Registration Statement and the Prospectus as being owned or licensed by them or, to the Company’s knowledge, which are necessary
for the conduct of their respective businesses as currently conducted or as currently proposed to be conducted as described in the Registration
Statement and the Prospectus (collectively, “Intellectual Property”), and, to the Company’s knowledge, the conduct
of their respective businesses does not currently infringe, misappropriate or otherwise conflict in any material respect with any such
rights of others. The Intellectual Property owned or licensed by the Company has not been adjudged by a court of competent jurisdiction
to be invalid or unenforceable, in whole or in part, and the Company is unaware of any facts which would form a reasonable basis for any
such adjudication. To the Company’s knowledge: (i) there are no third parties who have rights to any Intellectual Property,
except for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration
Statement and the Prospectus as licensed to the Company or one or more of its subsidiaries; and (ii) there is no infringement by
third parties of any Intellectual Property. There is no action, suit or other proceeding that is pending or is threatened in writing:
(A) challenging the Company’s rights in or to any Intellectual Property; (B) challenging the validity, enforceability
or scope of any Intellectual Property; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise violates
any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others. The Company and its subsidiaries
have complied in all material respects with the terms of each agreement pursuant to which Intellectual Property has been licensed to the
Company or any of its subsidiaries, and, to the Company’s knowledge, all such agreements are in full force and effect. To the Company’s
knowledge, there are no material defects in any of the patents or patent applications included in the Intellectual Property. To the Company’s
knowledge, the Company and its subsidiaries have taken all commercially reasonable steps to protect, maintain and safeguard their Intellectual
Property, including the execution of appropriate nondisclosure, confidentiality agreements and invention assignment agreements and invention
assignments with their employees, and no employee of the Company is in or has been in violation of any term relating to Intellectual Property
in any employment contract, patent disclosure agreement, invention assignment agreement, nondisclosure agreement or any restrictive covenant
relating to any Intellectual Property to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company. To the Company’s knowledge, the duty of candor and good faith as required by the United States Patent
and Trademark Office (“USPTO”) during the prosecution of the United States patents and patent applications included
in the Intellectual Property have been complied with. To the Company’s knowledge, there is no prior art that may render any patent
within the Intellectual Property invalid or that may render any patent application within the Intellectual Property unpatentable that
has not been disclosed to the USPTO. The product candidates under development by the Company or any of its subsidiaries and described
as covered by one or more patents or applications in the Registration Statement and the Prospectus fall within the scope of the claims
of those patents or applications, owned by, or exclusively licensed to, the Company or any of its subsidiaries. To the Company’s
knowledge, all patents and patent applications owned by or licensed to the Company and its subsidiaries, or under which the Company or
any of its subsidiaries has rights have, been duly and properly filed and maintained.
(v) All
Necessary Permits, etc. The Company and its subsidiaries possess such valid and current licenses, certificates, authorizations,
approvals, consents or permits required by state, federal or foreign regulatory agencies or bodies to conduct their respective businesses
as currently conducted and as described in the Registration Statement or the Prospectus (“Permits”), except where failure
to so possess would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. Neither the
Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any written notice of
proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit, except
as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
(w) Title
to Properties. The Company and its subsidiaries have good and marketable title to all of the real and personal property and other
assets reflected as owned in the financial statements referred to in Section 2(k) above (or elsewhere in the Registration
Statement or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse
claims and other defects, except where failure to have such title would not be expected, individually or in the aggregate, to result in
a Material Adverse Change (provided that, for the avoidance of doubt, rights to Intellectual Property are addressed exclusively in Section 2(u) above).
The real property, improvements, equipment and personal property held under lease by the Company or any of its subsidiaries are held under
valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to
be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
(x) Tax
Law Compliance. The Company and its subsidiaries have timely filed all necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have timely paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith
and by appropriate proceedings or where failure to do so could not reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred
to in Section 2(k) above in respect of all federal, state and foreign income and franchise taxes for all periods
as to which the tax liability of the Company or any of its subsidiaries has not been finally determined, except to the extent that failure
to do so would not be expected to result in a Material Adverse Change.
(y) Insurance.
Each of the Company and its subsidiaries are insured by recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as the Company reasonably believes are generally adequate and customary for
their businesses including, but not limited to, policies covering real and personal property owned or leased by the Company and its subsidiaries
against theft, damage, destruction and acts of vandalism, and earthquakes and policies covering the Company and its subsidiaries for product
liability claims and clinical trial liability claims. The Company has no reason to believe that it or any of its subsidiaries will not
be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably
be expected to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has been denied any insurance coverage
which it has sought or for which it has applied.
(z) Compliance
with Environmental Laws. Except as could not be expected, individually or in the aggregate, to result in a Material Adverse Change:
(i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”);
(ii) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements; (iii) there are no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries; and (iv) to the Company’s
knowledge, there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(aa) Periodic
Review of Costs of Environmental Compliance. In the ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). No facts or circumstances have come to the Company’s attention
that could result in costs or liabilities that would reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change.
(bb) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or, to the Company’s knowledge, their “ERISA Affiliates”
(as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to
the Company or any of its subsidiaries, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”)
of which the Company or such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or
any of their ERISA Affiliates that would reasonably be expected to result in material liability to the Company or its subsidiaries. No
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under
ERISA) that would reasonably be expected to result in material liability to the Company and its subsidiaries. Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any material liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971,
4975 or 4980B of the Code. Each employee benefit plan established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the Company’s knowledge,
nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(cc) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Shares or after
the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement or the Prospectus,
required to register as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(dd) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, without giving effect to any activities by the Agent, any action designed to or that would reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Shares or of any “reference security” (as defined in
Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect to the Common Shares, whether to
facilitate the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation
M.
(ee) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries or
any other person required to be described in the Registration Statement or the Prospectus that have not been described as required.
(ff) FINRA
Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel, its officers and directors
and, to the Company’s knowledge, the holders of any securities (debt or equity) or options to acquire any securities of the Company
in connection with the offering of the Shares is true, complete and correct in all material respects and compliant with FINRA’s
rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules or NASD Conduct Rules is
true, complete and correct in all material respects.
(gg) Statistical
and Market-Related Data. All statistical, demographic and market-related data included or incorporated by reference in the Registration
Statement or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and
accurate in all material respects. To the extent required, the Company has obtained the written consent to the use of such data from such
sources.
(hh) Sarbanes-Oxley
Act. There is, and has been, no failure on the part of the Company or any of its directors or officers, in their capacities as such,
to comply with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated
in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ii) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any applicable law or of the character required to be disclosed in the Registration Statement
or the Prospectus.
(jj) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees of the Company or any of
its subsidiaries, nor, to the Company’s knowledge, any agent, Affiliate or other representative acting on behalf of the Company
or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used
any corporate funds for any unlawful expense relating to political activity, including any contribution, gift, entertainment or other
expenses; (ii) made or taken any act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment
or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or public
international organization, or any political party, party official, or candidate for political office; (iii) violated or is in violation
of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK Bribery
Act 2010, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested, or taken an
act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other benefit. The Company and its subsidiaries
and, to the Company’s knowledge, the Company’s Affiliates, have conducted their respective businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith. Neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the
offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of
value, to any person in violation of any applicable anti-bribery or anti-corruption laws.
(kk) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(ll) Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the Company’s knowledge, any agent, Affiliate
or other representative acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State,
the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom, or other relevant sanctions
authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located, organized or resident
in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea, so-called Donetsk People’s
Republic and so-called Luhansk People’s Republic regions of Ukraine, Cuba, Iran, North Korea, and Syria; and the Company will
not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or
in any country or territory, that at the time of such financing, is the subject or the target of Sanctions prohibiting such activities
or business, in violation of Sanctions, or in any other manner that will result in a violation by any person (including any person participating
in the transaction whether as agent, advisor, investor or otherwise) of applicable Sanctions. Since their inception, the Company and its
subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person, country
or territory that at the time of the dealing or transaction is or was the subject or the target of Sanctions prohibiting such dealing
or transaction, in violation of Sanctions.
(mm) Brokers.
Except pursuant to this Agreement and as otherwise disclosed in the Registration Statement and the Prospectus, there is no broker, finder
or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result
of any transactions contemplated by this Agreement.
(nn) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was
so included by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions,
estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary statements identifying those
factors that could cause actual results to differ materially from those in such forward-looking statement. No such statement was made
with the knowledge of an executive officer or director of the Company that was false or misleading.
(oo) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of a personal
loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit as are expressly
permitted by Section 13(k) of the Exchange Act.
(pp) Cybersecurity.
Except as would not reasonably be expected to result in a Material Adverse Change, the Company and its subsidiaries’ information
technology assets and equipment, computers, systems, networks, hardware, software, websites, applications and databases over which they
have control (collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with
the operation of the business of the Company and its subsidiaries as currently conducted, and, to the Company’s knowledge, are free
and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have
implemented and maintained commercially reasonable physical, technical and administrative controls designed to maintain and protect the
confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data of the Company or maintained
by the Company on behalf of third parties (“Confidential Data”) used or maintained in connection with their businesses
and Personal Data (as defined below), and the integrity, continuous operation, redundancy and security of all IT Systems. “Personal
Data” means the following data received, used, stored, maintained, or otherwise processed in connection with the Company’s
and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone
number, e-mail address, photograph, social security number or other tax identification number, driver’s license number, passport
number, credit card number, bank information, or customer or account number; (ii) information that identifies, relates to, or may
reasonably be used to identify an individual; (iii) any information regarding an individual’s medical history, mental or physical
condition, or medical treatment or diagnosis by a health care professional; (iv) an individual’s health insurance policy number
or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in
an individual’s application and claims history; (v) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “HIPAA”); (vi) any information which would qualify as “personal data,”
“personal information” (or similar term) under the Privacy Laws (as defined below); and (vii) any other piece of information
that alone, or combined with other information, allows the identification of such natural person, or his or her family, or permits the
collection or analysis of any data related to an identified person’s health or sexual orientation. To the Company’s knowledge,
there have been no breaches, violations, outages or unauthorized uses of or accesses to same nor any incidents under internal review or
investigations relating to the same, including, without limitation, with respect to the Company’s IT Systems and Confidential Data
or Personal Data, except for those that have been remedied without material cost or liability or the duty to notify any other person.
The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments and orders
binding the Company, applicable binding rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations, each relating to the Processing (as defined below), privacy and security of Confidential
Data, the privacy and security of IT Systems and the protection of such IT Systems and Confidential Data from unauthorized use, access,
misappropriation or modification.
(qq) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer,
disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data, including
without limitation HIPAA. Currently, the Company does not meet the thresholds required for compliance with the California Consumer Privacy
Act (“CCPA”), the California Privacy Rights Act (“CPRA”), or other similar state privacy laws, nor
does the Company meet the conditions that would require that it comply with the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679), and the UK GDPR. The Company intends to, and will, be in compliance with the CCPA, the CPRA, other similar state privacy
laws, the GDPR and the UK GDPR when such laws apply to the Company. HIPAA, CCPA, CPRA, other similar state privacy laws, GDPR and the
UK GDPR are collectively, the “Privacy Laws.” To ensure compliance with applicable Privacy Laws, the Company and its
subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure compliance in all material respects with their
policies and procedures relating to data privacy and security, and the Processing of Confidential Data (the “Privacy Statements”).
The Company and its subsidiaries have, except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change, at all times since inception provided accurate and complete notice of its Privacy Statements then in effect to its customers,
employees, third party vendors and representatives, including as required by applicable laws and regulatory rules or requirements.
None of such disclosures made or contained in any Privacy Statement have been materially inaccurate or in material violation of any applicable
Privacy Laws. The execution, delivery and performance of this Agreement or any other agreement referred to in this Agreement, will not
result in a breach or violation of any Privacy Laws or Privacy Statements. The Company further represents that neither it nor any subsidiary:
(i) has received written notice of any actual or potential claim, complaint, proceeding, regulatory proceeding or liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, contracts related to the Processing of Confidential Data
or Privacy Statements, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice;
(ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant
to any Privacy Law or contract; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under
any Privacy Law.
(rr) Emerging
Growth Company Status. The Company has been and is an “emerging growth company,” as defined in Section 2(a) of
the Securities Act (an “Emerging Growth Company”).
(ss) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies conducted by or on behalf of the Company
or its subsidiaries (collectively, “studies”) that are described in, or the results of which are referred to in, the
Registration Statement or the Prospectus were and, if still pending, are being conducted in all material respects in accordance with the
protocols, procedures and controls designed and approved for such studies and with standard medical and scientific research procedures;
each description of the results of such studies is accurate and complete in all material respects and fairly presents in all material
respects the data derived from such studies, and the Company and its subsidiaries have no knowledge of any other studies the results of
which are materially inconsistent with, or otherwise reasonably call into question in any material respect, the results described or referred
to in the Registration Statement or the Prospectus; the Company and its subsidiaries have made all such filings and obtained all such
approvals as required by the Food and Drug Administration of the U.S. Department of Health and Human Services or from any other U.S. or
foreign government or drug regulatory agency, or health care facility Institutional Review Board, each having jurisdiction over biopharmaceutical
products (collectively, the “Regulatory Agencies”) for the conduct of its business as described in the Registration
Statement and the Prospectus, except where the failure to do so would not reasonably be expected to result in a Material Adverse Change;
neither the Company nor any of its subsidiaries has received any written notice of, or correspondence from, any Regulatory Agency requiring
the termination or suspension of any clinical trials that are described or referred to in the Registration Statement or the Prospectus;
and the Company and its subsidiaries have each operated and currently are in compliance in all material respects with all applicable rules,
regulations and policies of the Regulatory Agencies.
(tt) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all Health Care Laws in
all material respects and to the extent applicable to the Company’s current business. For purposes of this Agreement, “Health
Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Public Health
Service Act (42 U.S.C. Section 201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state,
local and foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b));
(iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et
seq.); (iv) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act
of 2010; (v) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws or
regulatory bodies; and (vi) all other local, state, federal, national, supranational and foreign laws, relating to the regulation
of the Company or its subsidiaries, and (vii) the directives and regulations promulgated pursuant to such statutes and any state
or non-U.S. counterpart thereof. Neither the Company nor any of its subsidiaries has received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in material violation of any Health Care Laws nor, to the
Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action
threatened. The Company and its subsidiaries have filed, maintained or submitted all material reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all
material respects (or were corrected or supplemented by a subsequent submission). Neither the Company nor any of its subsidiaries is a
party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or
imposed by any governmental or regulatory authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective
employees, officers, directors, or, to the Company’s knowledge, agents has been excluded, suspended or debarred from participation
in any U.S. federal health care program or human clinical research or, to the Company’s knowledge, is subject to a governmental
inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(uu) No
Contract Terminations. Neither the Company nor any of its subsidiaries has sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to or described in the Prospectus or any Free Writing Prospectus,
or referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has been
threatened by the Company or any of its subsidiaries or, to the Company’s knowledge, any other party to any such contract or agreement,
which threat of termination or non-renewal has not been rescinded as of the date hereof.
(vv) Dividend
Restrictions. No subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any
other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from
the Company or from transferring any property or assets to the Company or to any other subsidiary.
(ww) Other
Underwriting Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market”
or continuous equity transaction.
Any certificate signed by
any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent in connection
with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby
on the date of such certificate.
The Company acknowledges that
the Agent and, for purposes of the opinions to be delivered pursuant to Section 4(p) hereof, counsel to the Company
and counsel to the Agent will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 3. ISSUANCE
AND SALE OF COMMON SHARES
(a) Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through the Agent, acting
as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency Period.
(b) Mechanics
of Issuances.
(i) Issuance
Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period on which the conditions
set forth in Section 5(a) and Section 5(b) shall have been satisfied, the Company may exercise
its right to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however, that (A) in no event
may the Company deliver an Issuance Notice to the extent that the sum of (x) the aggregate Sales Price of the requested Issuance
Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected pursuant to this Agreement,
would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period set forth for any previous
Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered on the Trading Day that it is
received by e-mail to the persons set forth in Schedule A hereto and confirmed by the Company by telephone (including a voicemail message
to the persons so identified), with the understanding that, with adequate prior written notice, the Agent may modify the list of such
persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice, the Agent
will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares with respect to
which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified in, the Issuance Notice,
unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of
this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance Notice at any time provided they both
agree in writing to any such modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in negotiated transactions with the consent of the Company or (B) by
any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under
the Securities Act, including block transactions, sales made directly on the Principal Market or sales made into any other existing trading
market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to the method of offer and sale
specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of any Shares by the Agent
shall be at the Agent’s discretion.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than the opening
of the next Trading Day following the Trading Day on which it has placed Shares hereunder setting forth the number of shares sold on such
Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.
(v) Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions of
Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Agent or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal
At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt
of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, the Agent will
deliver, by wire transfer of immediately available funds, the related Issuance Price in same day funds delivered to an account designated
by the Company prior to the Settlement Date. The Company may sell Shares to the Agent as principal at a price agreed upon at each relevant
time Shares are sold pursuant to this Agreement (each, a “Time of Sale”).
(vi) Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to the other
party hereto in writing or by telephone (confirmed immediately by verifiable e-mail), suspend any sale of Shares, and the period set forth
in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and termination shall not affect or
impair either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt of such notice; (B) if
the Company suspends or terminates any sale of Shares after the Agent confirms such sale to the Company, the Company shall still be obligated
to comply with Section 3(b)(v) with respect to such Shares; and (C) if the Company defaults in its obligation
to deliver Shares on a Settlement Date, the Company agrees that it will hold the Agent harmless against any loss, claim, damage or expense
(including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company. The parties hereto acknowledge and agree that, in performing its obligations under this Agreement, the
Agent may borrow Common Shares from stock lenders in the event that the Company has not delivered Shares to settle sales as required by
subsection (v) above, and may use the Shares to settle or close out such borrowings. The Company agrees that no such notice shall
be effective against the Agent unless it is made to the persons identified in writing by the Agent pursuant to Section 3(b)(i).
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful
in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does not sell Shares;
and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise
specifically agreed by the Agent and the Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company shall
not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period in which the
Company is in possession of material non-public information.
(c) Fees.
As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date, the Selling Commission for
the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi)) by
the Agent deducting the Selling Commission from the applicable Issuance Amount. For the avoidance of doubt, the Company shall not be required
to pay to the Agent any Selling Commission with respect to any Issuance Notice, except to the extent Shares are placed pursuant thereto.
(d) Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and
delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent
of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares;
(iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors;
(v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Prospectus, any Free Writing
Prospectus (as defined below) prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Agent in connection
with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Shares for offer
and sale under the state securities or blue sky laws or the provincial securities laws of Canada, and, if requested by the Agent, preparing
and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”, and any supplements thereto, advising
the Agent of such qualifications, registrations, determinations and exemptions; (vii) the reasonable fees and disbursements of the
Agent’s counsel, including the reasonable fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and
approval of the Agent’s participation in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA
review, if any; (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken
in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation
or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses
of the representatives, employees and officers of the Company and of the Agent and any such consultants, and the cost of any aircraft
chartered in connection with the road show; and (x) the fees and expenses associated with listing the Shares on the Principal Market.
The fees and disbursements of Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed (A) $75,000
in connection with execution of this Agreement and (B) $25,000 in connection with each Triggering Event Date (as defined below) involving
the filing of a Form 10-K on which the Company is required to provide a certificate pursuant to Section 4(o) and
(C) $15,000 in connection with each other Triggering Event Date (as defined below) on which the Company is required to provide a
certificate pursuant to Section 4(o).
Section 4. ADDITIONAL
COVENANTS
The Company covenants and
agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a) Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K,
a summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant to this Agreement
and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include
in such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”), such
summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under
the Securities Act).
(b) Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or supplement
to the Prospectus, any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to the Registration
Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule 462(b) Registration
Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use of any Free Writing Prospectus
or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Shares from any securities
exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain
the lifting of such order as soon as reasonably practicable. Additionally, the Company agrees that it shall comply with the provisions
of Rule 424(b) and Rule 433, as applicable, under the Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(c) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel for the Agent it is otherwise necessary to amend
or supplement the Prospectus to comply with applicable law, including the Securities Act, the Company agrees (subject to Section 4(d) and
Section 4(f)) to promptly prepare, file with the Commission and furnish at its own expense to the Agent, amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law including
the Securities Act. Neither the Agent’s consent to, or delivery of, any such amendment or supplement shall constitute a waiver of
any of the Company’s obligations under Section 4(d) and Section 4(f); provided, however, that the only
remedy the Agent shall have with respect to the failure by the Company to make such filing (other than the Agent’s rights under
Section 3(d) or Section 6 hereof) shall be to cease making sales under this Agreement until such
amendment or supplement is filed; provided further, that the failure of the Company to file such amendment or supplement request shall
not relieve the Company of any obligation or liability under Section 3(d) or Section 6 hereof,
or affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement. Notwithstanding
the foregoing, the Company shall not be required to file such amendment or supplement if there is no pending Issuance Notice and the Company
believes that it is in its best interest not to file such amendment or supplement.
(d) Agent’s
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement (including any registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement through
incorporation of any report filed under the Exchange Act), insofar as such proposed amendment or supplement relates to the Shares or the
transactions contemplated hereby, the Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed
amendment or supplement without the Agent’s prior consent, which shall not be unreasonably withheld, conditioned or delayed, and
to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
(e) Use
of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed, or will prepare, use,
refer to or distribute, without the other party’s prior written consent, any “written communication” that constitutes
a “free writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect to the offering
contemplated by this Agreement (any such free writing prospectus being referred to herein as a “Free Writing Prospectus”).
(f) Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of
filing or use thereof, a copy of each proposed Free Writing Prospectus or any amendment or supplement thereto to be prepared by or on
behalf of, used by, or referred to by the Company, insofar as such proposed Free Writing Prospectus or amendment or supplement relates
to the Shares or the transactions contemplated hereby, and the Company shall not file, use or refer to any proposed Free Writing Prospectus
or any amendment or supplement thereto without the Agent’s consent, which shall not be unreasonably withheld, conditioned or delayed.
The Company shall furnish to the Agent, without charge, as many copies of any Free Writing Prospectus prepared by or on behalf of, or
used by the Company, insofar as such proposed Free Writing Prospectus or amendment or supplement relates to the Shares or the transactions
contemplated hereby, as the Agent may reasonably request. If at any time when a prospectus is required by the Securities Act (including,
without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares (but in any event if at any time
through and including the date of this Agreement) there occurred or occurs an event or development as a result of which any Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict with the information contained
in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company shall promptly amend or supplement such Free Writing Prospectus to eliminate or correct such conflict or so
that the statements in such Free Writing Prospectus as so amended or supplemented will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such
subsequent time, not misleading, as the case may be; provided, however, that prior to amending or supplementing any such Free Writing
Prospectus, the Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of filing or use
thereof, a copy of such proposed amended or supplemented Free Writing Prospectus and the Company shall not file, use or refer to any such
amended or supplemented Free Writing Prospectus without the Agent’s consent, which shall not be unreasonably withheld, conditioned
or delayed.
(g) Filing
of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agent or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf
of the Agent that the Agent otherwise would not have been required to file thereunder.
(h) Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required by
the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares,
the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement and each amendment
thereto (which may be electronic copies), and with copies of the Prospectus and each amendment or supplement thereto in the form in which
it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities
as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under
the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any period set forth
in an Issuance Notice in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, to notify the Agent and to request that the Agent suspend offers to sell Shares (and, if so notified, the Agent shall
cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Prospectus
as then amended or supplemented, to advise the Agent promptly by telephone (with confirmation in writing) and to prepare and cause to
be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance; provided, however, that if during such same period the Agent is
required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission
such an amendment or supplement.
(i) Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares for sale under
(or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws of those jurisdictions
designated by the Agent, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take
any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company will advise the Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof as soon as reasonably practicable.
(j) Earnings
Statement. As soon as reasonably practicable, the Company will make generally available to its security holders and to the Agent an
earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act.
(k) Listing;
Reservation of Shares. (a) The Company will maintain the listing of the Shares on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its
obligations under this Agreement.
(l) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(m) Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review conducted
by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during normal business hours and at the Company’s principal offices, as the Agent
may reasonably request from time to time.
(n) Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement Date
shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as the case may be,
as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and (ii) an undertaking that the Company will advise the Agent if any of such representations
and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Issuance Notice, as though made
at and as of each such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented relating to such Shares).
(o) Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and, during
the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)),
by means of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration
Statement or Prospectus;
(B) the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A
or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K
or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than information
“furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any such event, a “Triggering Event
Date”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines
that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering
Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar to the form previously provided
to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented,
(A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct, (B) confirming
that the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and as to
the matters set forth in Section 5(a)(iii) hereof, and (C) containing any other certification that the Agent shall
reasonably request. The requirement to provide a certificate under this Section 4(o) shall be automatically waived for
any Triggering Event Date occurring at a time when no Issuance Notice is pending or a suspension is in effect, which waiver shall continue
until the earlier to occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter
shall be considered a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the Agent with
a certificate under this Section 4(o), then before the Company delivers the instructions for the sale of Shares or the Agent
sells any Shares pursuant to such instructions, the Company shall provide the Agent with a certificate in conformity with this Section 4(o) dated
as of the date that the instructions for the sale of Shares are issued.
(p) Legal
Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, the Company shall cause to be furnished to the Agents (i) a negative assurances letter and the written
legal opinion of Gibson, Dunn & Crutcher LLP, counsel to the Company, and (ii) a written legal opinion of Goodwin Procter
LLP, intellectual property counsel to the Company, each dated the date of delivery, in form and substance reasonably satisfactory to Agent
and its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented. In lieu of such opinions for subsequent periodic filings,
in the discretion of the Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the Agent to rely
on a previously delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such
Triggering Event Date).
(q) Comfort
Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which the
Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, the Company shall cause Ernst & Young LLP, the independent registered public accounting firm who
has audited the financial statements included or incorporated by reference in the Registration Statement, to furnish the Agent a comfort
letter, dated the date of delivery, in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar
to the form previously provided to the Agent and its counsel; provided, however, that any such comfort letter will only be required on
the Triggering Event Date specified to the extent that it contains financial statements filed with the Commission under the Exchange Act
and incorporated or deemed to be incorporated by reference into a Prospectus. If requested by the Agent, the Company shall also cause
a comfort letter to be furnished to the Agent on the date of occurrence of any material transaction or event requiring the filing of a
current report on Form 8-K containing material amended financial information of the Company, including the restatement of the Company’s
financial statements; provided, the Company shall not be required to deliver a comfort letter pursuant to this sentence if there is no pending Issuance Notice
and shall not be required to so deliver a comfort letter until the earlier of the next "Triggering Event Date" or the next time the Company
gives the Agent an Issuance Notice. The Company shall be required to furnish no more than one comfort letter hereunder per each filing of an annual
report on Form 10-K or a quarterly report on Form 10-Q.
(r) Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable, the Company
shall furnish the Agent a certificate executed by the Secretary of the Company, signing in such capacity, dated the date of delivery (i) certifying
that attached thereto are true and complete copies of the resolutions duly adopted by the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation,
the issuance of the Shares pursuant to this Agreement), which authorization shall be in full force and effect on and as of the date of
such certificate, (ii) certifying and attesting to the office, incumbency, due authority and specimen signatures of each Person who
executed this Agreement for or on behalf of the Company, and (iii) containing any other certification that the Agent shall reasonably
request.
(s) Agent’s
Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with applicable law, in the Common Shares
for the Agent’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
(t) Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such
a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
(u) Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate the sale
or resale of the Shares or otherwise, and the Company will, and shall cause each of its Affiliates to, comply with all applicable provisions
of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to
the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly
upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause each of its Affiliates
to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by
the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements set forth in Section (d) of
Rule 102.
(v) Notice
of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for Common
Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, or effect a reverse stock split, recapitalization,
share consolidation, reclassification or similar transaction affecting the outstanding Common Shares, during the period beginning on the
third Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Agent hereunder and ending on the earlier
of (A) the third Trading Day immediately following the Settlement Date with respect to Shares sold pursuant to such Issuance Notice
and (B) the date an Issuance Notice is cancelled if no Shares have been sold pursuant to such Issuance Notice; and will not directly
or indirectly enter into any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Shares (other than the Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire, Common Shares prior to the termination
of this Agreement; provided, however, that such restrictions will not be required in connection with the Company’s (i) issuance
or sale of Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or other equity awards
pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan, long-term incentive plan,
dividend reinvestment plan, inducement award under Nasdaq rules or other compensation plan of the Company or its subsidiaries, whether
now in effect on the date of this Agreement or hereafter implemented, (ii) issuance or sale of Common Shares issuable upon exchange,
conversion or redemption of securities or the exercise or vesting of warrants, options or other equity awards outstanding at the date
of this Agreement, and (iii) modification of any outstanding options, warrants of any rights to purchase or acquire Common Shares.
(w) Emerging
Growth Company Status. During the Agency Period, the Company agrees to notify the Agent as soon as practicable upon the Company ceasing
to be an Emerging Growth Company.
Section 5. CONDITIONS
TO DELIVERY OF ISSUANCE NOTICES AND TO SETTLEMENT
(a) Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell Shares. The right of the
Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance Notice, and the
obligation of the Agent to use its commercially reasonable efforts to place Shares during the applicable period set forth in the Issuance
Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in the Issuance Notice, of each of the
following conditions:
(i) Accuracy
of the Company’s Representations and Warranties; Performance by the Company. The Company shall have delivered the certificate required
to be delivered pursuant to Section 4(o) on or before the date on which delivery of such certificate is required pursuant to
Section 4(o). The Company shall have performed, satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Company at or prior to such date, including, but not limited to, the
covenants contained in Section 4(p), Section 4(q) and Section 4(r).
(ii) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of
the transactions contemplated by this Agreement.
(iii) Material
Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information, (a) in the judgment of the Agent there
shall not have occurred any Material Adverse Change; and (b) there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.
(iv) No
Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common Shares (including without limitation
the Shares) shall not have been suspended by the Commission, the Principal Market or FINRA and the Common Shares (including without limitation
the Shares) shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market or any of
their constituent markets. There shall not have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below)
any of the following: (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the
Commission or by the Principal Market or trading in securities generally on the Principal Market shall have been suspended or limited,
or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the FINRA; (ii) a
general banking moratorium shall have been declared by any of federal or New York, authorities; or (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable to market
the Shares in the manner and on the terms described in the Prospectus or to enforce contracts for the sale of securities.
(b) Documents
Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially reasonable efforts to
place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the Issuance Notice Date of a certificate
in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive Officer, President or Chief Financial Officer
of the Company, to the effect that all conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of
such certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Issuance Notice).
(c) No
Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement, the Prospectus or the
Time of Sale Information, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable
opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) Agent
Counsel Legal Opinion. Agent shall have received from Cooley LLP, counsel for Agent, such opinion or opinions, on or before the date
on which the delivery of the Company counsel legal opinion is required pursuant to Section 4(p), with respect to such matters
as Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for enabling
them to pass upon such matters.
Section 6. INDEMNIFICATION
AND CONTRIBUTION
(a) Indemnification
of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees, and each person, if any, who
controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which the Agent or such officer, employee or controlling person may become subject, under the Securities Act, the Exchange
Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered
or sold or at common law or otherwise (including in settlement of any litigation), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading and to reimburse the Agent and each such officer, employee and controlling person for any and all documented
expenses (including the reasonable and documented fees and disbursements of counsel chosen by the Agent) as such expenses are reasonably
incurred by the Agent or such officer, employee or controlling person in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall
not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information
furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto), it being understood and agreed that only such information furnished by the Agent to the Company
consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 6(a) shall
be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or
regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at common law or otherwise (including
in settlement of any litigation), and which arises out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; but, for each of (i) and (ii) above, only to the extent arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information
furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto), it being understood and agreed that only such information furnished by the Agent to the Company
consists of the information set forth in the first sentence of the ninth paragraph under the caption “Plan of Distribution”
in the Prospectus, and to reimburse the Company and each such director, officer and controlling person for any and all documented expenses
(including the reasonable and documented fees and disbursements of counsel chosen by the Company) as such expenses are reasonably incurred
by the Company or such officer, director or controlling person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 6(b) shall
be in addition to any liabilities that the Agent or the Company may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 6 or to the extent it is not prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election
so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the fees and expenses
of more than one separate counsel (together with local counsel), representing the indemnified parties who are parties to such action),
which counsel (together with any local counsel) for the indemnified parties shall be selected by the indemnified party (in the case of
counsel for the indemnified parties referred to in Section 6(a) and Section 6(b) above), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request; and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action, suit or proceeding.
(e) Contribution.
If the indemnification provided for in this Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Agent, on the other hand, from the offering of the Shares pursuant to this
Agreement; or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Agent, on the other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company,
on the one hand, and the Agent, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total gross proceeds from the offering of the Shares (before deducting expenses) received
by the Company bear to the total commissions received by the Agent. The relative fault of the Company, on the one hand, and the Agent,
on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the
Agent, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(c), any reasonable and documented legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 6(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 6(e);
provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 6(c) for
purposes of indemnification.
The Company and the Agent
agree that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(e).
Notwithstanding the provisions
of this Section 6(e), the Agent shall not be required to contribute any amount in excess of the Selling Commission
received by the Agent in connection with the offering contemplated hereby. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(e), each officer and employee of the Agent and each
person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution
as the Agent, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution
as the Company.
Section 7. TERMINATION &
SURVIVAL
(a) Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement
until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section 7.
(b) Termination;
Survival Following Termination.
(i) Either
party may terminate this Agreement prior to the end of the Agency Period, by giving written notice as required by this Agreement, upon
ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company terminates this Agreement after the
Agent confirms to the Company any sale of Shares, the Company shall remain obligated to comply with Section 3(b)(v) with
respect to such Shares and (B) Section 2, Section 3(d), Section 6, Section 7
and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any
sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement.
(ii) In
addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations, warranties
and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any of its or their partners, officers
or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery
of and payment for the Shares sold hereunder and any termination of this Agreement.
Section 8. MISCELLANEOUS
(a) Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
following the date of this Agreement, and may file with the Commission a Current Report on Form 8 K, with this Agreement attached
as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and the Company shall consult with the Agent
prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree
upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any press
release or like public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant
to the Exchange Act, other than disclosure related to entry into this Agreement or related to periodic sales pursuant to this Agreement
as required to be included in any reports filed with the Commission pursuant to the Securities Act or Exchange Act) related to this Agreement
or any of the transactions contemplated hereby without the prior written approval of the other party hereto, except as may be necessary
or appropriate in the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or
stock exchange rules. If any such press release or like public statement is so required, the party making such disclosure shall consult
with the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith,
to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
(b) No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this Agreement,
including the determination of any fees, are arm’s-length commercial transactions between the Company and the Agent, (ii) when
acting as a principal under this Agreement, the Agent is and has been acting solely as a principal and is not the agent or fiduciary of
the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has not assumed nor will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Agent has advised or is currently advising the Company on other matters) and the Agent does not have any
obligation to the Company with respect to the transactions contemplated hereby except the obligations expressly set forth in this Agreement,
(iv) the Agent and its respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (v) the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(c) Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required to and
should be independent from their respective investment banking divisions and are subject to certain regulations and internal policies,
and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions. The Company
understands that the Agent is a full service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, sent via electronic mail (if applicable) or telecopied
and confirmed to the parties hereto as follows:
If to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 786-5719
Attention: General Counsel
with a copy (which shall not constitute notice)
to:
Cooley LLP
55 Hudson Yards
New York, NY 10001
Attention: Daniel I. Goldberg, Esq.
E-mail: dgoldberg@cooley.com
If to the Company:
Apogee Therapeutics, Inc.
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
Attention: Jane Pritchett Henderson, CFO and Matthew
Batters, CLO
E-mail:
jane.henderson@apogeetherapeutics.com; matt.batters@apogeetherapeutics.com
with a copy (which shall not constitute notice)
to:
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Attention: Ryan Murr and Branden Berns
E-mail:
RMurr@gibsondunn.com; BBerns@gibsondunn.com
Any party hereto may change the address for receipt
of communications by giving written notice to the others in accordance with this Section 8(d).
(e) Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 6, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Shares as such from
the Agent merely by reason of such purchase.
(f) Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
(g) Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable
to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the Borough
of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
(h) General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic delivery of a portable document
format (PDF) file (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act,
the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com). This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. The Article and Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
[Signature Page Immediately Follows]
If the foregoing is in accordance
with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms
| |
Very truly yours, |
| |
|
| |
APOGEE THERAPEUTICS, INC. |
| |
|
| |
By: |
/s/ Michael Henderson |
| |
|
Name: |
Michael Henderson, M.D. |
| |
|
Title: |
Chief Executive Officer |
The foregoing Agreement is
hereby confirmed and accepted by the Agent in New York, New York as of the date first above written.
| JEFFERIES LLC |
|
| |
|
| By: |
/s/ Michael Magarro |
|
| |
Name: Michael Magarro |
|
| |
Title: Managing Director |
|
[Signature Page to Sales Agreement]
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale AgreementSM
between Apogee Therapeutics, Inc. (the “Company”) and Jefferies LLC (the “Agent”) dated as
of August 12, 2024. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied as of the date
hereof.
Date of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
_______________________
Issuance Amount (equal to the total Sales Price for such Shares):
|
$ |
|
| |
|
| Number of days in selling period: |
|
| |
|
| First date of selling period: |
|
| |
|
| Last date of selling period: |
|
| |
|
| Settlement Date(s) if other than standard
T+1 settlement: |
|
| |
|
| |
|
Floor Price Limitation (in no event less than $10.00 without the prior
written consent of the Agent, which consent may be withheld in the Agent’s sole discretion): $ ____ per share
Exhibit 4.3
APOGEE THERAPEUTICS, INC.
Debt Securities
Indenture
Dated as of , 202
[ ],
as Trustee
CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of
the Indenture
| TIA Section |
|
Indenture Section |
| 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
N.A. |
| (a)(4) |
|
N.A. |
| (b) |
|
7.08; 7.10; 12.02 |
| |
|
| 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
N.A. |
| |
|
| 312(a) |
|
2.05 |
| (b) |
|
12.03 |
| (c) |
|
12.03 |
| |
|
| 313(a) |
|
7.06 |
| (b)(1) |
|
N.A. |
| (b)(2) |
|
7.06 |
| (c) |
|
12.02 |
| (d) |
|
7.06 |
| |
|
| 314(a) |
|
4.03; 12.02 |
| (b) |
|
N.A. |
| (c)(1) |
|
12.04 |
| (c)(2) |
|
12.04 |
| (c)(3) |
|
N.A. |
| (d) |
|
N.A. |
| (e) |
|
12.05 |
| |
|
| 315(a) |
|
7.01(b) |
| (b) |
|
7.05; 12.02 |
| (c) |
|
7.01(a) |
| (d) |
|
7.01(c) |
| (e) |
|
6.11 |
| |
|
| 316(a)(last sentence) |
|
12.06 |
| (a)(1)(A) |
|
6.05 |
| (a)(1)(B) |
|
6.04 |
| (a)(2) |
|
N.A. |
| (b) |
|
6.07 |
| |
|
| 317(a)(1) |
|
6.08 |
| (a)(2) |
|
6.09 |
| (b)d |
|
2.04 |
| |
|
| 318(a) |
|
12.01 |
N.A. means Not Applicable.
TABLE OF CONTENTS
This Table of Contents is not a part of the
Indenture
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
| Section 1.01 |
|
Definitions |
1 |
| Section 1.02 |
|
Other Definitions |
4 |
| Section 1.03 |
|
Incorporation by Reference of Trust Indenture Act |
4 |
| Section 1.04 |
|
Rules of Construction |
4 |
| |
| ARTICLE TWO |
| THE SECURITIES |
| |
|
|
| Section 2.01 |
|
Form and Dating |
5 |
| Section 2.02 |
|
Execution and Authentication |
6 |
| Section 2.03 |
|
Registrar and Paying Agent |
6 |
| Section 2.04 |
|
Paying Agent to Hold Money in Trust |
7 |
| Section 2.05 |
|
Securityholder Lists |
7 |
| Section 2.06 |
|
Transfer and Exchange |
7 |
| Section 2.07 |
|
Replacement Securities |
7 |
| Section 2.08 |
|
Outstanding Securities |
8 |
| Section 2.09 |
|
Temporary Securities |
8 |
| Section 2.10 |
|
Cancellation |
8 |
| Section 2.11 |
|
Defaulted Interest |
8 |
| Section 2.12 |
|
Treasury Securities |
9 |
| Section 2.13 |
|
CUSIP/ISIN Numbers |
9 |
| Section 2.14 |
|
Deposit of Moneys |
9 |
| Section 2.15 |
|
Book-Entry Provisions for Global Security |
9 |
| Section 2.16 |
|
No Duty to Monitor |
10 |
ARTICLE THREE
REDEMPTION |
| |
|
|
| Section 3.01 |
|
Notices to Trustee |
11 |
| Section 3.02 |
|
Selection of Securities to be Redeemed |
11 |
| Section 3.03 |
|
Notice of Redemption |
11 |
| Section 3.04 |
|
Effect of Notice of Redemption |
12 |
| Section 3.05 |
|
Deposit of Redemption Price |
12 |
| Section 3.06 |
|
Securities Redeemed in Part |
12 |
| |
| ARTICLE FOUR |
| COVENANTS |
| |
|
|
| Section 4.01 |
|
Payment of Securities |
12 |
| Section 4.02 |
|
Maintenance of Office or Agency |
13 |
| Section 4.03 |
|
Reports |
13 |
| Section 4.04 |
|
Compliance Certificate |
13 |
| Section 4.05 |
|
Waiver of Stay, Extension or Usury Laws |
13 |
| |
| ARTICLE FIVE |
| SUCCESSOR CORPORATION |
| |
|
|
| Section 5.01 |
|
When Company May Merge, etc. |
13 |
| |
| ARTICLE SIX |
| DEFAULTS AND REMEDIES |
| |
|
|
| Section 6.01 |
|
Events of Default |
14 |
| Section 6.02 |
|
Acceleration |
15 |
| Section 6.03 |
|
Other Remedies |
15 |
| Section 6.04 |
|
Waiver of Existing Defaults |
15 |
| Section 6.05 |
|
Control by Majority |
15 |
| Section 6.06 |
|
Limitation on Suits |
15 |
| Section 6.07 |
|
Rights of Holders to Receive Payment and Convert |
16 |
| Section 6.08 |
|
Collection Suit by Trustee |
16 |
| Section 6.09 |
|
Trustee May File Proofs of Claim |
16 |
| Section 6.10 |
|
Priorities |
16 |
| Section 6.11 |
|
Undertaking for Costs |
17 |
| ARTICLE SEVEN |
| TRUSTEE |
| |
|
|
| Section 7.01 |
|
Duties of Trustee |
17 |
| Section 7.02 |
|
Rights of Trustee |
18 |
| Section 7.03 |
|
Individual Rights of Trustee |
19 |
| Section 7.04 |
|
Trustee’s Disclaimer |
19 |
| Section 7.05 |
|
Notice of Defaults |
19 |
| Section 7.06 |
|
Reports by Trustee to Holders |
19 |
| Section 7.07 |
|
Compensation and Indemnity |
20 |
| Section 7.08 |
|
Replacement of Trustee |
20 |
| Section 7.09 |
|
Successor Trustee by Merger, etc. |
20 |
| Section 7.10 |
|
Eligibility; Disqualification |
21 |
| Section 7.11 |
|
Preferential Collection of Claims Against Company |
21 |
| |
| ARTICLE EIGHT |
| DISCHARGE OF INDENTURE |
| |
|
|
| Section 8.01 |
|
Defeasance upon Deposit of Moneys or Government Obligations |
21 |
| Section 8.02 |
|
Survival of the Company’s Obligations |
23 |
| Section 8.03 |
|
Application of Trust Money |
23 |
| Section 8.04 |
|
Repayment to the Company |
23 |
| Section 8.05 |
|
Reinstatement |
23 |
| ARTICLE NINE |
| RESERVED |
| |
| ARTICLE TEN |
| AMENDMENTS, SUPPLEMENTS AND WAIVERS |
| |
|
|
| Section 10.01 |
|
Without Consent of Holders |
24 |
| Section 10.02 |
|
With Consent of Holders |
24 |
| Section 10.03 |
|
Compliance with Trust Indenture Act |
25 |
| Section 10.04 |
|
Revocation and Effect of Consents |
25 |
| Section 10.05 |
|
Notation on or Exchange of Securities |
26 |
| Section 10.06 |
|
Trustee to Sign Amendments, etc. |
26 |
| |
| ARTICLE ELEVEN |
| SECURITIES IN FOREIGN CURRENCIES |
| |
|
|
| Section 11.01 |
|
Applicability of Article |
26 |
| |
| ARTICLE TWELVE |
| MISCELLANEOUS |
| |
|
|
| Section 12.01 |
|
Trust Indenture Act Controls |
27 |
| Section 12.02 |
|
Notices |
27 |
| Section 12.03 |
|
Communications by Holders with Other Holders |
27 |
| Section 12.04 |
|
Certificate and Opinion as to Conditions Precedent |
27 |
| Section 12.05 |
|
Statements Required in Certificate or Opinion |
28 |
| Section 12.06 |
|
Rules by Trustee and Agents |
28 |
| Section 12.07 |
|
Legal Holidays |
28 |
| Section 12.08 |
|
Governing Law |
28 |
| Section 12.09 |
|
No Adverse Interpretation of Other Agreements |
28 |
| Section 12.10 |
|
No Recourse Against Others |
28 |
| Section 12.11 |
|
Successors and Assigns |
29 |
| Section 12.12 |
|
Duplicate Originals |
29 |
| Section 12.13 |
|
Severability |
29 |
| Section 12.14 |
|
Waiver of Jury Trial |
29 |
| |
|
| SIGNATURES |
30 |
| EXHIBIT A – Form of Security |
31 |
INDENTURE dated as of ,
202 , (the “Base Indenture”), by and among APOGEE THERAPEUTICS, INC., a Delaware corporation (the “Company”)
and [ ], as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Company’s debt securities issued under this Base Indenture:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“Affiliate” means, when used
with reference to a specified person, any Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Person specified.
“Agent” means any Registrar,
Paying Agent or co-Registrar or agent for service of notices and demands.
“Authorizing Resolution” means
a resolution adopted by the Board of Directors or by an Officer or committee of Officers pursuant to Board delegation authorizing a Series of
Securities.
“Bankruptcy Law” means Title
11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
“Board of Directors” means
the Board of Directors of the Company or any duly authorized committee thereof.
“Capital Stock” means, with
respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of or in such Person’s
capital stock or other equity interests.
“Company” means the party named
as such in this Indenture until a successor replaces it pursuant to the Indenture and thereafter means the successor.
“control” means, when used
with respect to any Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Default” means any event,
act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
“Definitive Security” means
a certificated Security registered in the name of the Securityholder thereof.
“Depositary” means, with respect
to Securities of any Series which the Company shall determine will be issued in whole or in part as a Global Security, DTC, another
clearing agency, or any successor registered as a clearing agency under the Exchange Act, and any other applicable U.S. or foreign statute
or regulation, which, in each case, shall be designated by the Company pursuant to Section 2.01.
“Dollars” and “$”
mean United States Dollars.
“DTC” means The Depository
Trust Company, New York, New York.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Foreign Currency” means any
currency, currency unit or composite currency, including, without limitation, the Euro, issued by the government of one or more countries
other than the United States of America or by any recognized confederation or association of such governments.
“GAAP” means generally accepted
accounting principles set forth in the accounting standards codification of the Financial Accounting Standards Board or in such other
statements by such or any other entity as may be approved by a significant segment of the accounting profession of the United States,
as in effect on the date of this Base Indenture.
“Global Security” means, with
respect to any Series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
“Government Obligations” means
securities which are (i) direct obligations of the United States or the other government or governments in the confederation which
issued the Foreign Currency in which the principal of or any interest on the Security of the applicable Series shall be payable,
in each case for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States or such other government or governments, in each case the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government or governments,
which, in either case are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such Government Obligations or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest
on or principal of the Government Obligation evidenced by such depositary receipt.
“Holder” or “Securityholder”
means the Person in whose name a Security is registered on the Registrar’s books.
“Indenture” means this Base
Indenture as amended or supplemented from time to time, including pursuant to any Authorizing Resolution or supplemental indenture pertaining
to any Series, and including, for all purposes of this instrument and any such Authorizing Resolution or supplemental indenture, the provisions
of the TIA that are deemed to be a part of and govern this Base Indenture and any such Authorizing Resolution or supplemental indenture,
respectively.
“Issue Date” means, with respect
to any Series of Securities, the date on which the Securities of such Series are originally issued under this Indenture.
“NYUCC” means the New York
Uniform Commercial Code, as in effect from time to time.
“Officer” means the Chairman
of the Board, the President, any Vice President, the Treasurer, the Controller or the Secretary of the Company.
“Officers’ Certificate”
means a certificate signed by two Officers or by an Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
“Opinion of Counsel” means
a written opinion, in form and substance reasonably satisfactory to the Trustee, from legal counsel. The counsel may be an employee of
or counsel to the Company. Each such opinion shall include the statements provided for in Section 12.05 if and to the extent required
by the provisions of such Section.
“Person” means any individual,
corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“principal” of a debt security
means the principal of the security plus, when appropriate, the premium, if any, on the security.
“Property” of any Person means
all types of real, personal, tangible, intangible or mixed property owned by such Person, whether or not included in the most recent consolidated
balance sheet of such Person and its Subsidiaries under GAAP.
“SEC” means the Securities
and Exchange Commission or any successor agency performing the duties now assigned to it under the TIA.
“Securities” means any Securities
that are issued under this Base Indenture.
“Securities Act” means the
Securities Act of 1933, as amended.
“Series” means a series of
Securities established under this Base Indenture.
“Significant Subsidiary” means
any Subsidiary of the Company which would constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act.
“Subsidiary” of any Person
means any corporation or other entity of which a majority of the Capital Stock having ordinary voting power to elect a majority of the
board of directors of such entity or other persons performing similar functions is at the time directly or indirectly owned or controlled
by such Person.
“TIA” means the Trust Indenture
Act of 1939, as in effect from time to time, except as otherwise provided herein.
“Trustee” means the party named
as such in this Base Indenture until a successor replaces it pursuant to this Base Indenture and thereafter means the successor serving
hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as used with
respect to the Securities of any Series shall mean only the Trustee with respect to Securities of that Series.
“Trust Officer” means, when
used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant
vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be such officers or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
“United States” means the United
States of America.
Section 1.02 Other Definitions.
| Term |
Defined in
Section |
|
| Agent Members |
|
2.15 |
|
| Base Indenture |
|
Preamble |
|
| Business Day |
|
12.07 |
|
| Covenant Defeasance |
|
8.01 |
|
| Custodian |
|
6.01 |
|
| Event of Default |
|
6.01 |
|
| Legal Defeasance |
|
8.01 |
|
| Legal Holiday |
|
12.07 |
|
| Paying Agent |
|
2.03 |
|
| Payment Default |
|
6.01 |
|
| Registrar |
|
2.03 |
|
| Security Register |
|
2.03 |
|
| Successor |
|
5.01 |
|
Section 1.03 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities
of a particular Series.
“indenture security holder” means
a Securityholder.
“indenture to be qualified” means
this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities
means the Company or any other obligor on the Securities of a Series.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
| |
(1) |
a term has the meaning assigned to it herein; |
| |
(2) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP and all accounting determinations shall be made in accordance with GAAP; |
| |
(3) |
“or” is not exclusive and “including” means “including without limitation”; |
| |
(4) |
words in the singular include the plural, and in the plural include the singular; |
| |
(5) |
“herein,” “hereof” and “hereunder,” and other words of similar import, refer to this Indenture as a whole (including any Authorizing Resolution or supplemental indenture relating to the relevant Series) and not to any particular Article, Section or other subdivision; |
| |
(6) |
all exhibits are incorporated by reference herein and expressly made a part of this Indenture; and |
| |
(7) |
any transaction or event shall be considered “permitted by” or made “in accordance with” or “in compliance with” this Indenture or any particular provision thereof if such transaction or event is not expressly prohibited by this Indenture or such provision, as the case may be. |
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating.
The aggregate principal amount of Securities that
may be issued under this Base Indenture is unlimited. The Securities may be issued from time to time in one or more Series. Each Series shall
be created by an Authorizing Resolution or a supplemental indenture that establishes the terms of the Series, which may include the following:
| |
(1) |
the title of the Series (which shall distinguish the Securities of such Series from all other Securities); |
| |
(2) |
the aggregate principal amount (or any limit on the aggregate principal amount) of the Series and, if any Securities of a Series are to be issued at a discount from their face amount, the method of computing the accretion of such discount; |
| |
(3) |
the interest rate or method of calculation of the interest rate; |
| |
(4) |
the date from which interest will accrue; |
| |
(5) |
the record dates for interest payable on Securities of the Series; |
| |
(6) |
the dates when, places where and manner in which principal and interest are payable; |
| |
(7) |
the Registrar and Paying Agent; |
| |
(8) |
the terms of any mandatory (including any sinking fund requirements) or optional redemption by the Company; |
| |
(9) |
the terms of any redemption at the option of Holders; |
| |
(10) |
the permissible denominations in which Securities of such Series are issuable, if different from $2,000 and multiples of $1,000 in excess thereof; |
| |
(11) |
whether Securities of such Series will be issued in registered or bearer form and the terms of any such forms of Securities; |
| |
(12) |
whether the Securities of the Series shall be issued in whole or in part in the form of a Global Security or Securities, the terms and conditions, if different from those contained in this Base Indenture, upon which such Global Security or Securities may be exchanged in whole or in part for Definitive Securities; the Depositary for such Global Security or Securities; and the form of any legend or legends, if any, to be borne by any such Global Security or Securities in addition to or in lieu of the legends referred to in Section 2.15; |
| |
(13) |
the currency or currencies (including any composite currency) in which principal or interest or both may be paid; |
| |
(14) |
if payments of principal or interest may be made in a currency other than that in which Securities of such Series are denominated, the manner for determining such payments, including the time and manner of determining the exchange rate between the currency in which such Securities are denominated and the currency in which such Securities or any of them may be paid, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a Foreign Currency; |
| |
(15) |
provisions for electronic issuance of Securities or issuance of Securities of such Series in uncertificated form; |
| |
(16) |
any Events of Default, covenants and/or defined terms in addition to or in lieu of those set forth in this Base Indenture; |
| |
(17) |
whether and upon what terms Securities of such Series may be defeased or discharged if different from the provisions set forth in this Base Indenture; |
| |
(18) |
the form of the Securities of such Series, which, unless the Authorizing Resolution or supplemental indenture otherwise provides, shall be in the form of Exhibit A; |
| |
(19) |
any terms that may be required by or advisable under applicable law; |
| |
(20) |
the percentage of the principal amount of the Securities of such Series which is payable if the maturity of the Securities of such Series is accelerated in the case of Securities issued at a discount from their face amount; |
| |
(21) |
whether Securities of such Series will or will not have the benefit of guarantees and the Company’s Subsidiaries that will be the initial guarantors of such Series and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors; |
| |
(22) |
whether the Securities of such Series are senior or subordinated debt securities, and if subordinated debt securities, the terms of such subordination; |
| |
(23) |
whether the Securities of the Series will be convertible into or exchangeable for other Securities, common shares or other securities of any kind of the Company or another obligor, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or at the Company’s option, the conversion or exchange period, and any other provision in relation thereto; and |
| |
(24) |
any other terms in addition to or different from those contained in this Base Indenture applicable to such Series. |
All Securities of one Series need not be
issued at the same time and, unless otherwise provided, a Series may be reopened for issuances of additional Securities of such Series pursuant
to an Authorizing Resolution, an Officers’ Certificate or in any indenture supplemental hereto.
The creation and issuance of a Series and
the authentication and delivery thereof are not subject to any conditions precedent.
Section 2.02 Execution and Authentication.
One Officer shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security
no longer holds that office at the time the Trustee authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until the Trustee
manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Base Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication.
Each Security shall be dated the date of its authentication. The Trustee shall authenticate Securities for original issue upon receipt
of, and shall be fully protected in relying upon:
(a) an order to the Trustee signed by an officer of the Company
directing the Trustee to authenticate the Securities;
(b) a copy of the resolution or resolutions of the Board of Directors
in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate,
and if the terms and form of such Securities are established by an Officers’ Certificate pursuant to general authorization of the
Board of Directors, such Officers’ Certificate;
(c) an Officers’ Certificate of the Company delivered in
accordance with Section 12.04; and
(d) an Opinion of Counsel delivered in accordance with Section 12.04.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability
to existing Holders.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency
where Securities may be presented for registration of transfer or where Securities of a Series that are convertible or exchangeable
may be surrendered for conversion or exchange (“Registrar”), an office or agency where Securities may be presented
for payment (“Paying Agent”) and an office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Registrar shall keep a register of the Securities and of their transfer and exchange
(the “Security Register”). The Company may have one or more co-Registrars and one or more additional paying agents.
The term “Paying Agent” includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Base Indenture. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company shall promptly notify the Trustee in writing of the name and address of any such Agent and the Trustee shall
have the right to inspect the Securities Register at all reasonable times to obtain copies thereof, and the Trustee shall have the right
to rely upon such register as to the names and addresses of the Holders and the principal amounts and certificate numbers thereof. If
the Company fails to maintain a Registrar or Paying Agent or fails to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as
Registrar and Paying Agent.
Section 2.04 Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the
benefit of Securityholders and the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities,
and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate the money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon doing so the Paying Agent shall have no further liability for the money.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least five (5) Business Days before each semiannual interest payment date
and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders.
Section 2.06 Transfer and Exchange.
Where a Security is presented to the Registrar
or a co-Registrar with a request to register a transfer, the Registrar shall register the transfer as requested if the requirements of
Section 8-401(a) of the NYUCC are met and the other provisions of this Section 2.06 are satisfied. Where Securities
are presented to the Registrar or a co-Registrar with a request to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit transfers and exchanges,
the Trustee shall authenticate Securities at the Registrar’s request. The Registrar need not transfer or exchange any Security selected
for redemption or repurchase, except the unredeemed or repurchased part thereof if the Security is redeemed or repurchased in part, or
transfer or exchange any Securities for a period of 15 days before a selection of Securities to be redeemed or repurchased. Any exchange
or transfer shall be without charge, except that the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto except in the case of exchanges pursuant to 2.09, 3.06, or 10.05 not
involving any transfer.
Any Holder of a Global Security shall, by acceptance
of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book entry
system maintained by the Holder of such Global Security (or its agent), and that ownership of a beneficial interest in the Security shall
be required to be reflected in a book entry.
Section 2.07 Replacement Securities.
If the Holder of a Security claims that the Security
has been lost, destroyed, mutilated or wrongfully taken, the Company shall issue and execute a replacement security and, upon written
request of any Officer of the Company, the Trustee shall authenticate such replacement Security, provided, in the case of a lost,
destroyed or wrongfully taken Security, that the requirements of Section 8-405 of the NYUCC are met. If any such lost, destroyed,
mutilated or wrongfully taken Security shall have matured or shall be about to mature, the Company may, instead of issuing a substitute
Security therefor, pay such Security without requiring (except in the case of a mutilated Security) the surrender thereof. An indemnity
bond must be sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee and any Agent from any loss
which any of them may suffer if a Security is replaced, including the acquisition of such Security by a bona fide purchaser. The Company
and the Trustee may charge for its expenses in replacing a Security.
Section 2.08 Outstanding Securities.
Securities outstanding at any time are all Securities
authenticated by the Trustee except for those cancelled by it and those described in this Section. A Security does not cease to be outstanding
because the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a “protected
purchaser” (as such term is defined in the NYUCC).
If the Paying Agent holds on a redemption date,
purchase date or maturity date money sufficient to pay Securities payable on that date, then on and after that date such Securities cease
to be outstanding and interest on them ceases to accrue.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 2.09 Temporary Securities.
Until Definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form
of Definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and, upon surrender for cancellation of the temporary Security, the Company shall execute and the Trustee
shall authenticate Definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as Definitive Securities authenticated and delivered hereunder.
Section 2.10 Cancellation.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, redemption, purchase or payment. The Trustee and no one else shall cancel and dispose of such cancelled or tendered
securities, or retain in accordance with its standard retention policy, all Securities surrendered for registration of transfer, exchange,
redemption, purchase, payment or cancellation. Unless the Authorizing Resolution or supplemental indenture so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or delivered to the Trustee for cancellation.
Section 2.11 Defaulted Interest.
If the Company defaults in a payment of interest
on the Securities of any Series, it shall pay the defaulted interest plus any interest payable on the defaulted interest to the
persons who are Securityholders of such Series on a subsequent special record date. The Company shall fix such special record date
and a payment date which shall be reasonably satisfactory to the Trustee. At least 15 days before such special record date, the Company
shall mail to each Securityholder of the relevant Series a notice that states the record date, the payment date and the amount of
defaulted interest to be paid. On or before the date such notice is mailed, the Company shall deposit with the Paying Agent money sufficient
to pay the amount of defaulted interest to be so paid. The Company may pay defaulted interest in any other lawful manner if, after notice
given by the Company to the Trustee of the proposed payment, such manner of payment shall be deemed practicable by the Trustee.
Section 2.12 Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities of a Series have concurred in any direction, waiver, consent or notice, Securities owned by the Company
or any of its Affiliates shall be considered as though they are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually
knows are so owned shall be so considered.
Section 2.13 CUSIP/ISIN Numbers.
The Company in issuing the Securities of any Series may
use a “CUSIP” and/or “ISIN” or other similar number, and if so, the Trustee shall use the CUSIP and/or ISIN or
other similar number in notices of redemption or exchange as a convenience to Holders of such Securities; provided that no representation
is hereby deemed to be made by the Trustee as to the correctness or accuracy of any such CUSIP and/or ISIN or other similar number printed
in the notice or on such Securities, and that reliance may be placed only on the other identification numbers printed on such Securities.
The Company shall promptly notify the Trustee of any change in any CUSIP and/or ISIN or other similar number.
Section 2.14 Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each
interest payment date and maturity date with respect to each Series of Securities, the Company shall have deposited with the Paying
Agent in immediately available funds money in the applicable currency sufficient to make cash payments due on such interest payment date
or maturity date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders of such Series on
such interest payment date or maturity date, as the case may be.
Section 2.15 Book-Entry Provisions for Global Security.
(a) Any Global Security of a Series initially
shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as
custodian for such Depositary and (iii) bear any required legends.
Members of, or participants in, the Depositary
(“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf
by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.
(b) Transfers of any Global Security shall
be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial
owners in the Global Security may be transferred or exchanged for Definitive Securities in accordance with the rules and procedures
of the Depositary. In addition, Definitive Securities shall be transferred to all beneficial owners in exchange for their beneficial interests
in a Global Security if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the
Global Security or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor
depository is not appointed by the Company within 90 days of such notice, or (ii) the Company elects, at any time in its sole discretion,
to discontinue use of the system of book entry transfer through any Depositary. Any Security that is held in the form of a Global Security
and that is exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Security that is held
in the form of a Global Security and that is exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time
in part as directed by the Company.
(c) In connection with any transfer or exchange
of a portion of the beneficial interest in any Global Security to beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Definitive Securities are to be issued) reflect on its books and records the date and a decrease in the principal amount
of the Global Security in an amount equal to the principal amount of the beneficial interest in the Global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities of like Series and
amount.
(d) In connection with the transfer of an
entire Global Security to beneficial owners pursuant to paragraph (b), the Global Security shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of Definitive
Securities of the same Series in authorized denominations.
(e) The Holder of any Global Security may
grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture or the Securities of such Series.
(f) Unless otherwise provided in the Authorizing
Resolution or supplemental indenture for a particular Series of Securities, each Global Security of such Series shall bear legends
in substantially the following forms:
“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE HOLDERS OF BENEFICIAL INTERESTS
HEREIN, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06 AND SECTION 2.15 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.”
“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
Section 2.16 No Duty to Monitor.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or beneficial owners
of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any
responsibility for any actions taken or not taken by the Depositary.
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee.
Securities of a Series that are redeemable
prior to maturity shall be redeemable in accordance with their terms and, unless the Authorizing Resolution or supplemental indenture
provides otherwise, in accordance with this Article Three.
If the Company wants to redeem Securities pursuant
to Paragraph 4 of the Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed. Any such notice may be cancelled at any time prior to notice of such redemption being mailed to Holders. Any such cancelled
notice shall be void and of no effect.
If the Company wants to credit any Securities
previously redeemed, retired or acquired against any redemption pursuant to Paragraph 5 of the Securities, it shall notify the
Trustee of the amount of the credit and it shall deliver any Securities not previously delivered to the Trustee for cancellation with
such notice.
The Company shall give each notice provided for
in this Section 3.01 at least 30 days before the notice of any such redemption is to be delivered to Holders (unless a shorter
notice shall be satisfactory to the Trustee).
Section 3.02 Selection of Securities to be Redeemed.
If fewer than all of the Securities of a Series are
to be redeemed, the Trustee (or depository, as applicable) shall select the Securities to be redeemed by lot, pro rata, or such other
method the Trustee (or depository, as applicable) considers fair and appropriate and in a manner that complies with applicable requirements
of the Depositary. The Trustee (or depository, as applicable) shall make the selection from Securities outstanding not previously called
for redemption and shall promptly notify the Company of the serial numbers or other identifying attributes of the Securities so selected.
The Trustee (or depository, as applicable) may select for redemption portions of the principal of Securities that have denominations larger
than the minimum denomination for the Series. Securities and portions of them it selects shall be in amounts equal to a permissible denomination
for the Series. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called
for redemption.
Unless otherwise provided in the Authorizing Resolution
or supplemental indenture relating to a Series, if any Security selected for partial redemption is converted into or exchanged for the
Company’s Capital Stock or other securities, cash or other property in part before termination of the conversion or exchange right
with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to
be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as outstanding for the purpose of such selection.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before
a redemption date, the Company shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be
redeemed and shall state:
| |
(1) |
the redemption date; |
| |
(2) |
the redemption price or the formula pursuant to which such price will be calculated; |
| |
(3) |
if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Security; |
| |
(4) |
in the case of Securities of a Series that are convertible or exchangeable into shares of the Company’s Capital Stock or other securities, cash or other property, the conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such Series to be redeemed will commence or terminate and the place or places where such Securities may be surrendered for conversion or exchange; |
| |
(5) |
the name and address of the Paying Agent; |
| |
(6) |
that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
| |
(7) |
that interest on Securities called for redemption ceases to accrue on and after the redemption date; |
| |
(8) |
that the Securities are being redeemed pursuant to the mandatory redemption or the optional redemption provisions, as applicable; and |
| |
(9) |
the CUSIP number and/or ISIN or other similar number used to identify the Securities, that no representation is hereby deemed to be made be made by the Trustee as to the correctness or accuracy of any such CUSIP and/or ISIN or other similar number printed in the notice or on such Securities, and that reliance may be placed only on the other identification numbers printed on such Securities. |
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company shall
deliver to the Trustee at least 15 days prior to the date on which notice of redemption is to be mailed or such shorter period as may
be satisfactory to the Trustee, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities
called for redemption become due and payable on the redemption date and at the redemption price as set forth in the notice of redemption,
which notice, and which obligation to redeem such Securities, may, at the Company’s discretion, be subject to one or more conditions
precedent as set forth in such notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price, plus
accrued and unpaid interest to the redemption date.
Section 3.05 Deposit of Redemption Price.
On or before the redemption date, the Company
shall deposit with the Paying Agent immediately available funds in the applicable currency sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed
in part, the Company shall execute and the Trustee shall authenticate for each Holder a new Security of the same Series equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of, premium,
if any, and interest on a Series on the dates, in the currency and in the manner provided in the Securities of the Series. An installment
of principal, premium, if any, or interest shall be considered paid on the date it is due if the Paying Agent holds on that date money
in the applicable currency designated for and sufficient to pay the installment.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain the office or agency
required under Section 2.03. The Company shall give prior written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee.
Section 4.03 Reports.
At any time when the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the Trustee, within fifteen (15)
days after it actually files the same with the SEC (regardless of when the same is required to be filed with the SEC), each annual, quarterly
or current report, information or proxy statement other report which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to file or deliver to the Trustee
any material for which the Company has sought and received, or is seeking, confidential treatment by the SEC; and, provided further,
that the Company shall be deemed to have filed such information with the Trustee if the Company has filed such information on the SEC’s
EDGAR system (or any successor system) and such information is publicly available. The Company also shall comply with the other provisions
of TIA Section 314(a). The Trustee
does not have the duty to review such information, documents or reports,
is not considered to have notice of the content of such information, documents or reports and does not have a duty to verify the accuracy
of such information, documents or reports.
Section 4.04 Compliance Certificate.
The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an Officers’ Certificate stating whether or not the signers know of any
continuing Default by the Company in performing any of its obligations under this Indenture. If they do know of such a Default, the certificate
shall describe the Default. In addition, the Company will notify the Trustee within 5 business days upon the Company’s knowledge
of a Default.
Section 4.05 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Securities of any Series as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company
expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, etc.
The Company will not consolidate or merge with
or into, or sell, lease, convey or otherwise dispose of all or substantially all of its assets (including by way of liquidation or dissolution),
to any Person (in each case other than in a transaction in which the Company is the survivor of a consolidation or merger, or the transferee
in a sale, lease, conveyance or other disposition) unless:
| |
(1) |
the Person formed by or surviving such consolidation or merger (if other than the Company), or to which such sale, lease, conveyance or other disposition will be made (collectively, the “Successor”) assumes by supplemental indenture in a form reasonably satisfactory to the Trustee all of the obligations of the Company under the Securities, as the case may be, and the Indenture, and |
| |
(2) |
immediately after giving effect to such transaction, no Default or Event of Default has occurred and is continuing. |
The foregoing provisions shall not apply to a
transaction the purpose of which is to change the state of incorporation of the Company.
Upon any such consolidation, merger, sale, lease,
conveyance or other disposition, the Successor will be substituted for the Company under the Indenture. The Successor may then exercise
every power and right of the Company under this Indenture, and except in the case of a lease, the Company will be released from all of
its liabilities and obligations in respect of the Securities and the Indenture. If the Company leases all or substantially all of its
assets, the Company will not be released from its obligations to pay the principal of and interest, if any, on the Securities.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An “Event of Default” with
respect to a Series occurs upon the occurrence of any of the following:
| |
(1) |
the failure by the Company to pay interest on any Security of such Series when the same becomes due and payable and the continuance of any such failure for a period of 30 days; |
| |
(2) |
the failure by the Company to pay the principal of any Security of such Series when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; |
| |
(3) |
the failure by the Company to comply with any of its agreements or covenants in, or provisions of, the Securities of such Series or this Indenture (as they relate thereto) and such failure continues for the period and after the notice specified below (except in the case of a default with respect to Article Five (or any other provision specified in the applicable supplemental indenture or Authorizing Resolution), which will constitute an Event of Default with notice but without passage of time); |
| |
(4) |
the Company or any Subsidiary that is a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: |
| |
(A) |
commences a voluntary case, |
| |
(B) |
consents to the entry of an order for relief against it in an involuntary case, |
| |
(C) |
consents to the appointment of a Custodian of it or for all or substantially all of its Property, or |
| |
(D) |
makes a general assignment for the benefit of its creditors; |
| |
(5) |
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| |
(A) |
is for relief against the Company or any Subsidiary that is a Significant Subsidiary as debtor in an involuntary case, |
| |
(B) |
appoints a Custodian of the Company or any Subsidiary that is a Significant Subsidiary or a Custodian for all or substantially all of the Property of the Company, or |
| |
(C) |
orders the liquidation of the Company or any Subsidiary that is a Significant Subsidiary, and the order or decree remains unstayed and in effect for 60 days. |
A Default as described in subclause (3) above
will not be deemed an Event of Default until the Trustee notifies the Company, or the Holders of at least 25 percent in principal amount
of the then outstanding Securities of the applicable Series notify the Company and the Trustee, of the Default and (except in the
case of a default with respect to Article Five (or any other provision specified in the applicable supplemental indenture
or Authorizing Resolution)) the Company does not cure the Default within 60 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a “Notice of Default.” If such a Default is cured within
such time period, it ceases to exist, without any action by the Trustee or any other Person.
The term “Custodian” means
any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
Section 6.02 Acceleration.
If an Event of Default (other than an Event of
Default with respect to the Company resulting from subclause (4) or (5) above), shall have occurred and be continuing
under the Indenture, the Trustee by notice to the Company, or the Holders of at least 25 percent in principal amount of the Securities
of the applicable Series then outstanding by notice to the Company and the Trustee, may declare all Securities of such Series to
be due and payable immediately. Upon such declaration of acceleration, the amounts due and payable on the Securities of such Series will
be due and payable immediately. If an Event of Default with respect to the Company specified in subclauses (4) or (5) above
occurs, all amounts due and payable on the Securities of such Series will ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee and the Company or any Holder.
Holders of a majority in principal amount of the
then outstanding Securities of such Series may rescind an acceleration with respect to such Series and its consequence (except
an acceleration due to nonpayment of principal or interest) if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (other than the non-payment of accelerated principal) have been cured or waived.
No such rescission shall extend to or shall affect
any subsequent Event of Default, or shall impair any right or power consequent thereon.
Section 6.03 Other Remedies.
If an Event of Default on a Series occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of
or interest on the Series or to enforce the performance of any provision in the Securities or this Indenture applicable to the Series.
The Trustee may maintain a proceeding even if
it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Existing Defaults.
Subject to Section 10.02, the Holders
of a majority in principal amount of the outstanding Securities of a Series on behalf of all the Holders of the Series by notice
to the Trustee may waive an existing Default on such Series and its consequences. When a Default is waived, it is cured and stops
continuing, and any Event of Default arising therefrom shall be deemed to have been cured; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount
of the outstanding Securities of a Series may direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it with respect to such Series. The Trustee, however, may refuse to follow
any direction (i) that conflicts with law or this Indenture, (ii) that, subject to Section 7.01, the Trustee determines
is unduly prejudicial to the rights of other Securityholders, (iii) that would involve the Trustee in personal liability, if there
shall be reasonable grounds for believing that adequate indemnity against such liability is not reasonably assured to it, or (iv) if
the Trustee shall not have been provided with indemnity satisfactory to it.
Section 6.06 Limitation on Suits.
A Securityholder of a Series may not pursue
any remedy with respect to this Indenture or the Securities of a Series unless:
| |
(1) |
the Holder gives to the Trustee written notice of a continuing Event of Default on the Series; |
| |
(2) |
the Holders of at least 25% in principal amount of the outstanding Securities of the Series make a written request to the Trustee to pursue the remedy; |
| |
(3) |
such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; |
| |
(4) |
the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and |
| |
(5) |
no written request inconsistent with such written request shall have been given to the Trustee pursuant to this Section 6.06. |
A Securityholder may not use this Indenture to
prejudice the rights of another Holder of Securities of the same Series or to obtain a preference or priority over another Holder
of Securities of the same Series (it being understood that the Trustee does not have an affirmative duty to ascertain whether or
not such actions or forbearances by such Holder are unduly prejudicial to another Holder).
Section 6.07 Rights of Holders to Receive Payment and Convert.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal of, premium, if any, and interest on any Security, on or after the respective
due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of the Holder. Notwithstanding anything to the contrary in
this Indenture or the Securities, the right of any Holder of Securities to convert such Securities in accordance with this Indenture,
or to bring suit for the enforcement of such right, shall not be impaired or affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment of interest
or principal specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the whole amount of principal and interest remaining unpaid.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company or its creditors or Property, and unless prohibited by applicable law or regulation, may vote on behalf
of the Holders in any election of a Custodian, and shall be entitled and empowered to collect and receive any moneys or other Property
payable or deliverable on any such claims and to distribute the same and any Custodian in any such judicial proceeding is hereby authorized
by each Securityholder to make such payments to the Trustee. Nothing herein shall be deemed to authorize the Trustee to authorize or consent
to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder or to authorize the Trustee to vote in respect of the claim of any Securityholder except as
aforesaid for the election of the Custodian.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to
this Article with respect to Securities of any Series, it shall pay out the money in the following order:
| First: |
to the Trustee for amounts due under Section 7.07; |
| Second: |
to Securityholders of the Series for amounts due and unpaid on the Series for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Series for principal and interest, respectively; and |
| Third: |
to the Company or as a court of competent jurisdiction shall direct. |
The Trustee may fix a record date and payment
date for any payment to Securityholders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having the
due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Series.
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and
is continuing with respect to Securities of any Series, the Trustee shall, prior to the receipt of directions from the Holders of a majority
in principal amount of the Securities of the Series, exercise its rights and powers and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event
of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture. The Trustee, however, in the case of certificates or opinions specifically
required by any provision hereof to be furnished to it, shall examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture but need not confirm or investigate the accuracy of mathematical calculations or other facts or
matters stated therein.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 or any other
direction of the Holders permitted hereunder.
(d) Every provision of this Indenture that
in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably assured to it.
Section 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting on any document, resolution, certificate, instrument, report, or direction
believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter
stated in the document, resolution, certificate, instrument, report, or direction.
(b) Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to Sections 12.04 and
12.05 hereof and containing such other statements as the Trustee reasonably deems necessary to perform its duties hereunder. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate, Opinion
of Counsel or any other direction of the Company permitted hereunder.
(c) The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(e) The Trustee may consult with counsel
of its selection, and the advice of such counsel or any Opinion of Counsel as to matters of law shall be full and complete authorization
and protection in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) Unless otherwise specifically provided
in the Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(g) For all purposes under this Indenture,
the Trustee shall not be deemed to have notice or knowledge of any Event of Default unless written notice of any Event of Default is received
by the Trustee at its address specified in Section 12.02 hereof and such notice references the Securities generally, the Company
and this Indenture.
(h) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(i) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry
or investigation.
(j) In no event shall the Trustee be responsible
or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(l) The Trustee may request that the Company
deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture.
(m) In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however, must comply with Sections 7.10 and
7.11.
Section 7.04 Trustee’s Disclaimer.
The Trustee makes no representation as to the
validity or adequacy of this Indenture, the Securities or of any prospectus used to sell the Securities of any Series; it shall not be
accountable for the Company’s use of the proceeds from the Securities; it shall not be accountable for any money paid to the Company,
or upon the Company’s direction, if made under and in accordance with any provision of this Indenture; it shall not be responsible
for the use or application of any money received by any Paying Agent other than the Trustee; and it shall not be responsible for any statement
of the Company in this Indenture or in the Securities other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default on a Series occurs and is continuing
and if it is known to the Trustee, the Trustee shall deliver to each Securityholder of the Series notice of the Default (which shall
specify any uncured Default known to it) within 90 days after the Trustee obtains such knowledge. Except in the case of a default in payment
of principal of or interest on a Series, the Trustee may withhold the notice if and so long as the board of directors of the Trustee,
the executive or any trust committee of such directors and/or responsible officers of the Trustee in good faith determine(s) that
withholding the notice is in the interests of Holders of the Series.
Section 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning
with the May 15 following the date of this Base Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA § 313(a) (but if no event described in TIA § 313(1) through (8) has
occurred within the twelve months preceding the reporting date no report in relation thereto need be transmitted). The Trustee also shall
comply with TIA § 313(b).
A copy of each report at the time of its mailing
to Securityholders shall be delivered to the Company and filed by the Trustee with the SEC and each national securities exchange on which
the Securities are listed. The Company agrees to notify the Trustee of each national securities exchange on which the Securities are listed.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time
to time reasonable compensation for its services subject to any written agreement between the Trustee and the Company (which compensation
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust). The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel. The Company shall indemnify the Trustee, its officers, directors, employees and
agents and hold it harmless against any loss, liability or expense incurred or made by or on behalf of it in connection with the administration
of this Indenture or the trust hereunder and its duties hereunder including the costs and expenses of defending itself against or investigating
any claim in the premises. The Trustee shall notify the Company promptly of any claim of which it has received written notice and for
which it may seek indemnity. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee
through the Trustee’s, or its officers’, directors’, or employees’ negligence or willful misconduct.
Unless otherwise provided in any supplemental
indenture or Authorizing Resolution relating to any Series, to ensure the Company’s payment obligations in this Section, the Trustee
shall have a claim prior to the Securities of all Series on all money or Property held or collected by the Trustee, except that held
in trust to pay principal of or interest on particular Securities. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01 or in connection with Article Six hereof, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute expenses
of administration under any Bankruptcy Law. Section 7.07 shall survive the discharge of the Indenture or resignation of Trustee.
Section 7.08 Replacement of Trustee.
The Trustee may resign with respect to Securities
of any or all Series by so notifying the Company. The Holders of a majority in principal amount of the outstanding Securities (or
of the relevant Series) may remove the Trustee by so notifying the removed Trustee in writing and may appoint a successor trustee with
the Company’s consent. Such resignation or removal shall not take effect until the appointment by the Securityholders of the relevant
Series or the Company as hereinafter provided of a successor trustee and the acceptance of such appointment by such successor trustee.
The Company may remove the Trustee and any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee for any or no reason, including if:
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(1) |
the Trustee fails to comply with Section 7.10 after written request by the Company or any bona fide Securityholder who has been a Securityholder for at least six months; |
| |
(2) |
the Trustee is adjudged a bankrupt or an insolvent; |
| |
(3) |
a receiver or other public officer takes charge of the Trustee or its Property; or |
| |
(4) |
the Trustee becomes incapable of acting. |
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor trustee with respect to the Securities
of the relevant Series. If a successor trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee at the expense of the Company, the Company or any Holder may petition any court of competent jurisdiction for the appointment
of a successor trustee.
A successor trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall, upon payment of its
charges hereunder, transfer all
Property held by it as Trustee to the successor trustee, the resignation
or removal of the retiring Trustee shall become effective, and the successor trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor trustee shall mail notice of its succession to each Securityholder.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges with
or into or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA § 310(a)(1). The Trustee shall have a combined capital and surplus of at least $10,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA § 311(a),
excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA §
311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01 Defeasance upon Deposit of Moneys or Government
Obligations.
(a) The Company may, at its option and at
any time, elect to have either paragraph (b) or paragraph (c) below be applied to the outstanding Securities of
any Series upon compliance with the applicable conditions set forth in paragraph (d).
(b) Upon the Company’s exercise under
paragraph (a) of the option applicable to this paragraph (b) with respect to any Series, the Company shall be
deemed to have been released and discharged from its obligations with respect to the outstanding Securities of the Series on the
date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such
Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding
Securities of a Series, which shall thereafter be deemed to be “outstanding” only for the purposes of the Sections and matters
under this Indenture referred to in (i) and (ii) below, and the Company shall be deemed to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities of a Series to receive solely
from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of
the principal of and interest on such Securities when such payments are due and (ii) obligations listed in Section 8.02,
subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) with
respect to a Series notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities
of the Series.
(c) Upon the Company’s exercise
under paragraph (a) of the option applicable to this paragraph (c) with respect to a Series, the Company
shall be released and discharged from the obligations under any covenant contained in Article Five, Sections 4.03
and any other covenant contained in or referenced in the Authorizing Resolution or supplemental indenture relating to such
Series (to the extent such release and discharge shall not be prohibited thereby), on and after the date the conditions set
forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such Series shall
thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to
the outstanding Securities of a Series, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in the covenants described in the preceding sentence, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01(3) or
otherwise, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions
to application of either paragraph (b) or paragraph (c) above to the outstanding Securities of the applicable
Series:
(1) The Company shall have irrevocably deposited
in trust with the Trustee (or another qualifying trustee), pursuant to an irrevocable trust and security agreement in form and substance
reasonably satisfactory to the Trustee, money in the currency in which the Securities of such Series are payable or Government Obligations
or a combination thereof in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of and interest on the outstanding Securities of such Series to maturity or redemption;
provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company
instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such Government Obligations to said payments
with respect to the Securities of such Series to maturity or redemption;
(2) No Default or Event of Default (other
than a Default or Event of Default resulting from non-compliance with any covenant from which the Company is released upon effectiveness
of such Legal Defeasance or Covenant Defeasance pursuant to paragraph (b) or (c) hereof, as applicable) shall
have occurred and be continuing on the date of such deposit or result therefrom;
(3) (i) In the event the Company elects
paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance
reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Issue Date pertaining to such Series, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in
the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii),
and subject to customary assumptions and exclusions, Holders of the Securities of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal
income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance
had not occurred;
(4) The Company shall have delivered to the
Trustee an Officers’ Certificate, stating that the deposit under clause (1) was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company or others;
(5) The Company shall have delivered to the
Trustee an Opinion of Counsel (subject to customary assumptions and qualifications) to the effect that, assuming no intervening bankruptcy
of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider”
of the Company under applicable Bankruptcy Law, after the 91st day following the deposit, the trust funds shall not be subject to the
effect of Section 547 of the United States Bankruptcy Code or any analogous New York State law provision; and
(6) The Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the
defeasance contemplated by this Section 8.01 have been complied with.
In the event all or any portion of the Securities of a Series are
to be redeemed through such irrevocable trust, the Company must make arrangements satisfactory to the Trustee, at the time of such deposit,
for the giving of the notice of such redemption or redemptions by the Trustee in the name and at the expense of the Company.
(e) In addition to the Company’s rights
above under this Section 8.01, the Company may terminate all of its obligations under this Indenture with respect to a Series,
when:
(1) All Securities of such Series theretofore
authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07 and Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation
or all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, (B) will become
due and payable at maturity within one year or (C) are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and in each such
case, the Company has irrevocably deposited or caused to be deposited with the Trustee (or another qualifying trustee) as trust funds
in trust solely for that purpose an amount of money in the currency in which the Securities of such Series are payable or Government
Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants, to
pay and discharge the entire indebtedness on the Securities of such Series not theretofore delivered to the Trustee for cancellation,
for principal of and interest on the Securities of such Series, on the date of such deposit or to the maturity or redemption date, as
the case may be;
(2) The Company has paid or caused to be
paid all other sums payable hereunder by the Company;
(3) The Company has delivered irrevocable
instructions to the Trustee (or such other qualifying trustee), to apply the deposited money toward the payment of the Securities of such
Series at maturity or redemption, as the case may be; and
(4) The Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, stating that all conditions precedent specified in this Section 8.01(e) relating
to the satisfaction and discharge of this Indenture have been complied with.
Section 8.02 Survival of the Company’s Obligations.
Notwithstanding the satisfaction and discharge
of this Indenture under Section 8.01, the Company’s obligations in Paragraph 8 of the Securities and Sections
2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall survive until the Securities
of an applicable Series are no longer outstanding. Thereafter, the Company’s obligations in Paragraph 8 of the Securities
of such Series and Sections 7.07, 8.04 and 8.05 shall survive (as they relate to such Series) such satisfaction
and discharge.
Section 8.03 Application of Trust Money.
The Trustee shall hold in trust money or Government
Obligations deposited with it pursuant to Section 8.01. It shall apply the deposited money and the money from Government Obligations
in accordance with this Indenture to the payment of principal of and interest on the Securities of the defeased Series.
Section 8.04 Repayment to the Company.
The Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess money or securities held by them at any time. The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment of principal or interest that remains unclaimed for two years, provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company
cause to be published once in a newspaper of general circulation in the City of New York or mail to each such Holder notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors unless applicable abandoned property law designates another
person and all liability of the Trustee or such Paying Agent with respect to such money shall cease.
Section 8.05 Reinstatement.
If the Trustee is unable to apply any money or
Government Obligations in accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations
under this Indenture and the Securities relating to the Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee is permitted to apply all such money or Government Obligations in
accordance with Section 8.01; provided, however, that (a) if the Company has made any payment of interest
on or principal of any Securities of the Series because of the reinstatement of its obligations hereunder, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee and
(b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental authority, the Trustee
shall return all such money or Government Obligations to the Company promptly after receiving a written request therefor at any time,
if such reinstatement of the Company’s obligations has occurred and continues to be in effect.
ARTICLE NINE
RESERVED
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement
this Indenture or the Securities of a Series without notice to or consent of any Securityholder of such Series:
| |
(1) |
to cure any ambiguity, omission, defect or inconsistency; |
| |
(2) |
to comply with Article Five; |
| |
(3) |
to provide that specific provisions of this Indenture shall not apply to a Series not previously issued or to make a change to specific provisions of this Indenture that only applies to any Series not previously issued or to additional Securities of a Series not previously issued; |
| |
(4) |
to create a Series and establish its terms; |
| |
(5) |
to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(6) |
to release a guarantor in respect of any Series which, in accordance with the terms of this Indenture applicable to the particular Series, ceases to be liable in respect of its guarantee; |
| |
(7) |
to add a guarantor in respect of any Series; |
| |
(8) |
to secure any Series; |
| |
(9) |
to add to the covenants of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company; |
| |
(10) |
to appoint a successor trustee with respect to the Securities; |
| |
(11) |
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; |
| |
(12) |
to make any other change that does not adversely affect the rights of Securityholders; and |
| |
(13) |
to conform the provisions of the Indenture to the final offering memorandum or prospectus in respect of any Series. |
After an amendment under this Section 10.01
becomes effective, the Company shall mail notice of such amendment to the Securityholders.
Section 10.02 With Consent of Holders.
The Company and the Trustee may amend or supplement
any provision of the Securities of a Series or of this Indenture relating to such Series without notice to any Securityholder
of such Series but with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities
of such Series (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities of
such Series). Each such Series shall vote as a separate class. The Holders of a majority in principal amount of the outstanding Securities
of any Series may waive compliance by the Company with any provision of the Securities of such Series or of this Indenture relating
to such Series without notice to any Securityholder (including any waiver granted in connection with a purchase of, or tender offer
or exchange offer for, Securities of such Series). Without the consent of each Holder of a Security the terms of which are directly amended,
supplemented or waived, however, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not
(with respect to any Securities of such Series held by a non-consenting Holder):
(1) reduce the amount of Securities of the
relevant Series whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time
for payment of interest, including defaulted interest, on any Security;
(3) reduce the principal of or extend the
fixed maturity of any Security or alter the provisions (including related definitions) with respect to redemption of any Security pursuant
to Article Three hereof or with respect to any obligations on the part of the Company to offer to purchase or to redeem Securities
of a Series pursuant to the Authorizing Resolution or supplemental indenture pertaining to such Series in a manner adverse to
Holders;
(4) make any change that adversely affects
any right of a Holder to convert or exchange any Security into or for shares of the Company’s Capital Stock or other securities,
cash or other property in accordance with the terms of such Security;
(5) modify the ranking or priority of the
Securities of the relevant Series or any guarantee thereof;
(6) release any guarantor of any Series from
any of its obligations under its guarantee or this Indenture otherwise than in accordance with the terms of this Indenture;
(7) make any change in Sections 6.04,
6.07 or this Section 10.02, except to increase the percentage required for modification or waiver or to provide for
consent of each affected Holder of Securities of such Series;
(8) waive a continuing Default or Event of
Default in the payment of the principal of or interest on any Security; or
(9) make any Security payable at a place
or in money other than that stated in the Security, or impair the right of any Securityholder to bring suit as permitted by Section 6.07.
An amendment of a provision included solely for
the benefit of one or more Series does not affect the interests of Securityholders of any other Series.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any proposed supplement, but it shall be sufficient if such consent
approves the substance thereof.
Section 10.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture
or any Securities shall comply with the TIA as then in effect.
Section 10.04 Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver
by a Holder shall bind the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on any Security. Unless otherwise provided in the consent
or the consent solicitation statement or other document describing the terms of the consent, any Holder or subsequent Holder may revoke
the consent as to its Security or portion of a Security. Any revocation of a consent by the Holder of a Security or any such subsequent
Holder shall be effective only if the Trustee receives the notice of revocation before the date on which the Trustee receives an Officers’
Certificate from the Company certifying that the requisite number of consents have been received.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders of Securities of any Series entitled to consent to any amendment, supplement
or waiver, which record date shall be at least 10 days prior to the first solicitation of such consent. If a record date is fixed, and
if Holders otherwise have a right to revoke their consent under the consent or the consent solicitation statement or other document describing
the terms of the consent, then notwithstanding the second to last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
An amendment, supplement or waiver with respect
to a Series becomes effective upon the (i) receipt by the Company or the Trustee of the requisite consents, (ii) satisfaction
of any conditions to effectiveness as set forth in this Indenture or any indenture supplemental hereto containing such amendment, supplement
or waiver and (iii) execution of such amendment, supplement or waiver (or the related supplemental indenture) by the Company and
the Trustee. After an amendment, supplement or waiver with respect to a Series becomes effective, it shall bind every Holder of such
Series, unless it makes a change described in any of clauses (1) through (9) of Section 10.02, in
which case, the amendment, supplement or waiver shall bind a Holder of a Security of such Series only if it has consented to such
amendment, supplement or waiver and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security; provided that no such waiver shall impair or affect the right of any Holder to receive payment
of principal of and interest on a Security, on or after the respective due dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates without the consent of such Holder.
Section 10.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes
the terms of a Security, the Company may require the Holder of the Security to deliver it to the Trustee, at which time the Trustee shall
place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects
the changed terms.
Section 10.06 Trustee to Sign Amendments, etc.
Subject to Section 7.02(b), the Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing
or refusing to sign such amendment or supplemental indenture, the Trustee shall be provided with and shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that such amendment, supplement or waiver is authorized
or permitted by this Indenture, and (solely with respect to such Opinion of Counsel) that it will be valid and binding upon the Company
and enforceable in accordance with its terms.
ARTICLE ELEVEN
SECURITIES IN FOREIGN CURRENCIES
Section 11.01 Applicability of Article.
Whenever this Indenture provides for (i) any
action by, or the determination of any of the rights of, Holders of Securities of any Series in which not all of such Securities
are denominated in the same currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary
pursuant to this Indenture or the Securities of any particular Series, any amount in respect of any Security denominated in a Foreign
Currency shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such
reasonable basis of exchange and as of the record date with respect to Securities of such Series (if any) for such action, determination
of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies
or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control.
Section 12.02 Notices.
Any order, consent, notice or communication shall
be sufficiently given if in writing and delivered in person or mailed by first class mail, postage prepaid, addressed as follows:
if to the Company:
[ ]
if to the Trustee:
[ ]
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder
shall be mailed to him by first class mail at his address as it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the addressee receives it except that notice to the Trustee shall
only be effective upon receipt thereof by the Trustee.
If the Company mails notice or communications
to the Securityholders, it shall mail a copy to the Trustee at the same time.
In addition to the foregoing, the Trustee agrees
to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission
or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions
by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party
providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk
of interception and misuse by third parties.
Section 12.03 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA
§ 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company
to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
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(1) |
an Officers’ Certificate (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
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(2) |
an Opinion of Counsel (which shall include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent, if any, provided for in this Indenture relating to the proposed action or inaction, have been complied with. |
Any Officers’ Certificate may be based,
and may state that it is so based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, internal
or external legal counsel. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an Officer or Officers of the Company or any guarantor stating that the information
with respect to such factual matters is known to the Company or such guarantor, unless such counsel knows that the certificate or opinion
or representations with respect to such matters are erroneous.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
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(1) |
a statement that the person making such certificate or opinion has read such covenant or condition; |
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(2) |
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
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(3) |
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
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(4) |
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. |
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for
action by or a meeting of Securityholders. The Registrar or Paying Agent may make reasonable rules for its functions.
Section 12.07 Legal Holidays.
A “Legal Holiday” is a Saturday,
a Sunday, a legal holiday or a day on which banking institutions in New York, New York are not required to be open. If a payment date
is a Legal Holiday, payment may be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period. If this Indenture provides for a time period that ends or requires performance of any non-payment obligation by a day that is
not a Business Day, then such time period shall instead be deemed to end on, and such obligation shall instead be performed by, the next
succeeding Business Day. A “Business Day” is any day other than a Legal Holiday.
Section 12.08 Governing Law.
The laws of the State of New York shall govern
this Indenture and the Securities of each Series.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.10 No Recourse Against Others.
All liability described in Paragraph 12
of the Securities of any director, officer, employee or stockholder, as such, of the Company is, to the fullest extent permitted by applicable
law, waived and released.
Section 12.11 Successors and Assigns.
All covenants and agreements of the Company in
this Indenture and the Securities shall bind its successors and assigns. All agreements of the Trustee in this Indenture shall bind its
successors and assigns.
Section 12.12 Duplicate Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 12.13 Severability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of a Series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities.
Section 12.14 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed, all as of the date first above written.
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APOGEE THERAPEUTICS, INC. |
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[ ], as Trustee |
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EXHIBIT A
[Title of Security]
APOGEE THERAPEUTICS, INC.
a Delaware corporation
promises to pay to or registered assigns the principal sum of [Dollars]*
on .
Interest Payment Dates: and
Record Dates: and
Authenticated: Dated:
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APOGEE THERAPEUTICS, INC. |
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By: |
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Name: |
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Title: |
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[ ],
as Trustee, certifies that this is one of the Securities
referred to in the within mentioned Indenture.
* Or other currency. Insert corresponding provisions on reverse side of Security in respect of foreign currency denomination or interest payment requirement.
APOGEE THERAPEUTICS, INC.
[Title of Security]
APOGEE THERAPEUTICS, INC., a Delaware corporation
(together with its successors and assigns, the “Company”), issued this Security under an Indenture dated as of (as
amended, modified or supplemented from time to time in accordance therewith, the “Base Indenture”), as supplemented
by the Supplemental Indenture dated as of (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”),
by and among the Company and [ ], as trustee (in such capacity, the “Trustee”), to
which reference is hereby made for a statement of the respective rights, obligations, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and are to be, authorized and delivered. All terms used in
this Security that are defined in the Indenture shall have the meanings assigned to them therein.
1.
Interest. The Company promises to pay interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semiannually on and of
each year, commencing , ,
until the principal is paid or made available for payment. Interest on the Securities will accrue from the most recent date to which interest
has been paid or duly provided for or, if no interest has been paid, from .
Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2.
Method of Payment. The Company will pay interest on the Securities (except defaulted interest, if any, which will be
paid on such special payment date to Holders of record on such special record date as may be fixed by the Company) to the persons who
are registered Holders of Securities at the close of business on the [Insert record dates] immediately preceding the interest payment
date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal and interest in
money of [Insert applicable country or currency] that at the time of payment is legal tender for payment of public and private debts.
3.
Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change or
appoint any Paying Agent, Registrar or co-Registrar without notice. The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Registrar or co-Registrar.
4.
Optional Redemption.1 The Company may redeem the Securities at any time on or after ,
in whole or in part, at the following redemption prices (expressed as a percentage of their principal amount) together with interest accrued
and unpaid to the date fixed for redemption:
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If redeemed during the twelve-month period
commencing on and ending on in each of
the following years |
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Percentage |
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[Insert provisions relating to redemption at option
of Holders, if any]
Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder of Securities to be redeemed at its registered address. Securities
in denominations larger than 2 may be redeemed in part. On and after the redemption date
interest ceases to accrue on Securities or portions of them called for redemption, provided that if the Company shall default in
the payment of such Securities at the redemption price together with accrued interest, interest shall continue to accrue at the rate borne
by the Securities.
1
If applicable
2
Insert applicable denominations and multiples.
5.
Mandatory Redemption.3 The Company shall redeem [ ]% of the aggregate
principal amount of Securities originally issued under the Indenture on each of [ ],
which redemptions are calculated to retire[ ]% of the Securities originally issued prior to maturity. Such redemptions
shall be made at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the redemption date.
The Company may reduce the principal amount of Securities to be redeemed pursuant to this Paragraph 5 by the principal amount of
any Securities previously redeemed, retired or acquired, otherwise than pursuant to this Paragraph 5, that the Company has delivered
to the Trustee for cancellation and not previously credited to the Company’s obligations under this Paragraph 5. Each such
Security shall be received and credited for such purpose by the Trustee at the redemption price and the amount of such mandatory redemption
payment shall be reduced accordingly.
6.
Denominations, Transfer, Exchange. The Securities are in registered form only without coupons in denominations of 4
and integral multiples of in excess thereof.5
A Holder may transfer or exchange Securities by presentation of such Securities to the Registrar or a co-Registrar with a request to register
the transfer or to exchange them for an equal principal amount of Securities of other denominations. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Security selected for redemption or purchase, except the unredeemed
or unpurchased part thereof if the Security is redeemed or purchased in part, or transfer or exchange any Securities for a period of 15
days before a selection of Securities to be redeemed or purchased.
7.
Persons Deemed Owners. The registered Holder of this Security shall be treated as the owner of it for all purposes.
8.
Unclaimed Money. Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of principal or interest that remains unclaimed for two years, and
thereafter, Holders entitled to the money must look to the Company for payment as general creditors.
9.
Amendment, Supplement, Waiver. Subject to certain exceptions, the Indenture or the Securities of a Series may be
amended or supplemented with the consent of the Holders of at least a majority in principal amount of the outstanding Securities of such
Series and any past default or compliance with any provision relating to any Series of the Securities may be waived in a particular
instance with the consent of the Holders of a majority in principal amount of the outstanding Securities of such Series.6
Without the consent of any Securityholder, the Company and the Trustee may amend or supplement the Indenture or the Securities in certain
respects as specified in the Indenture.
10.
Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Securities
and the Indenture, the predecessor corporation will be released from those obligations.
11.
Trustee Dealings With Company. Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its affiliates,
and may otherwise deal with the Company or its affiliates, as if it were not Trustee, including owning or pledging the Securities.
12.
No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities. The waiver may not be effective to waive liabilities under the federal
securities laws.
13.
Discharge of Indenture. The Indenture contains certain provisions pertaining to defeasance and discharge, which provisions
shall for all purposes have the same effect as if set forth herein.
3
If applicable.
4
Insert applicable denominations and multiples.
5
Insert applicable denominations and multiples.
6
If different terms apply, insert a brief summary thereof.
14.
Authentication. This Security shall not be valid until an authorized signatory of the Trustee signs the certificate
of authentication on the other side of this Security.
15.
Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= custodian), and U/G/M/A (= Uniform Gift to Minors Act).
16.
GOVERNING LAW. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17.
CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and has directed the Trustee to use CUSIP and
ISIN numbers in notices of repurchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of repurchase and reliance may be placed only on the other identification numbers
placed thereon.
18.
Copies. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and the
applicable Authorizing Resolution or supplemental indenture. Requests may be made to: Apogee Therapeutics, Inc., [ ], Attention:
[Chief Financial Officer].
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to (insert assignee’s
social security or tax ID number)
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| (Print or type assignee’s name, address, and zip code) |
and irrevocably appoint agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
| Date: |
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Your signature
(Sign exactly as your name appears on the other side of this Security) |
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| Signature Guarantee: |
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Exhibit 5.1
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Gibson, Dunn & Crutcher LLP
T:+1 415.393.4631
gibsondunn.com |
August 12, 2024
Apogee Therapeutics, Inc.
221 Crescent St. Building 17, Suite 102b
Waltham, MA 02453
Re: Apogee Therapeutics, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Apogee Therapeutics, Inc., a Delaware
corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission
(the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”) under
the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act
and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act, together or separately and in
one or more series (if applicable) of:
(i) the Company’s debt securities (the
“Debt Securities”);
(ii) shares of the Company’s common
stock, par value $0.00001 per share (the “Common Stock”);
(iii) shares of the Company’s preferred
stock, par value $0.00001 per share (the “Preferred Stock”);
(iv) warrants for the purchase of Debt Securities,
Common Stock, and Preferred Stock (the “Warrants”); and
(v) units of the Company comprised of any
combination of Debt Securities, Common Stock, Preferred Stock, and Warrants (the “Units”).
The Debt Securities, Common Stock, Preferred Stock, Warrants, and Units
are collectively referred to herein as the “Securities.” The Debt Securities are to be issued under an indenture substantially
in the form attached to the Registration Statement (the “Base Indenture”).
In arriving at the opinions expressed below, we have examined originals,
or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of the form of the
Base Indenture, form of the Debt Securities, specimen Common Stock certificates, and such other documents, corporate records, certificates
of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render
these opinions. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural
persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted
to us as copies. As to any facts material to these opinions, we have relied to the extent we deemed appropriate and without independent
investigation upon statements and representations of officers and other representatives of the Company and others.
Gibson, Dunn & Crutcher LLP
One Embarcadero Center Suite 2600 | San Francisco, CA 94111-3715 | T: 415.393.8200 | F: 415.393.8306 | gibsondunn.com
Apogee Therapeutics, Inc. |
August 12, 2024
Page 2 |
We have assumed without independent investigation that:
(i) at the time any Securities are sold pursuant
to the Registration Statement (the “Relevant Time”), the Registration Statement and any supplements and amendments
thereto (including post-effective amendments) will be effective and will comply with all applicable laws;
(ii) at the Relevant Time, a prospectus supplement
will have been prepared and filed with the Commission describing the Securities offered thereby and all related documentation and will
comply with all applicable laws;
(iii) all Securities will be issued and sold
in the manner stated in the Registration Statement and the applicable prospectus supplement;
(iv) at the Relevant Time, all corporate
or other action required to be taken by the Company to duly authorize each proposed issuance of Securities and any related documentation
(including (i) the due reservation of any shares of Common Stock or Preferred Stock for issuance upon exercise, conversion or exchange
of any Securities for Common Stock or Preferred Stock (a “Convertible Security”), and (ii) the execution (in the
case of certificated Securities), delivery and performance of the Securities and any related documentation referred to in paragraphs 1
through 5 below) shall have been duly completed and shall remain in full force and effect;
(v) upon issuance of any Common Stock or
Preferred Stock, including upon exercise, conversion or exchange of any Convertible Security, the total number of shares of Common Stock
or Preferred Stock issued and outstanding will not exceed the total number of shares of Common Stock or Preferred Stock, as applicable,
that the Company is then authorized to issue under its certificate of incorporation and other relevant documents;
(vi) in the case of Debt Securities,
at the Relevant Time, the relevant trustee shall have been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”),
a Statement of Eligibility of the Trustee on Form T-1 shall have been properly filed with the Commission and the relevant Base Indenture
shall have been duly executed and delivered by the Company and all other parties thereto and duly qualified under the TIA;
(vii) at the Relevant Time, a definitive
purchase, underwriting or similar agreement and any other necessary agreement with respect to any Securities offered or issued will have
been duly authorized by all necessary corporate or other action of the Company duly executed and delivered by the Company or any relevant
trust and the other parties thereto.
Apogee Therapeutics, Inc. |
August 12, 2024
Page 3 |
Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
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1. |
With respect to any Debt Securities when: |
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a. |
the terms and conditions of such Debt Securities have been duly established by supplemental indenture or officers’ certificate in accordance with the terms and conditions of the relevant Base Indenture, |
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b. |
any such supplemental indenture has been duly executed and delivered by the Company and the relevant trustee (together with the relevant Base Indenture, the “Indenture”), and |
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c. |
such Debt Securities have been executed (in the case of certificated Debt Securities), delivered and authenticated in accordance with the terms of the applicable Indenture and issued and sold for the consideration set forth in the applicable definitive purchase, underwriting or similar agreement, |
such Debt Securities will be legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
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2. |
With respect to any shares of Preferred Stock, when: |
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a. |
the certificate of designations relating to such Preferred Stock has been duly executed and filed with the Office of the Secretary of State of the State of Delaware, |
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b. |
such shares have been issued either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement and for the consideration therefor provided for therein or (ii) upon exercise, conversion or exchange of any Convertible Security and for any additional consideration specified in such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise, which consideration (including any consideration paid for such Convertible Security), on a per-share basis, shall in either event not be less than the par value of the Preferred Stock, and |
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c. |
any such Convertible Security was previously validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, |
such shares of Preferred Stock will be validly
issued, fully paid and non-assessable.
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3. |
With respect to shares of Common Stock, when: |
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a. |
such shares of Common Stock have been duly executed (in the case of certificated shares) and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, or (ii) upon conversion or exercise of any Convertible Security, in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise, and for any additional consideration specified therein, which consideration (including any consideration paid for such Convertible Security), on a per-share basis, shall in either event not be less than the par value of the Common Stock, and |
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b. |
any such Convertible Security was previously validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, |
such shares of Common Stock will be validly issued,
fully paid and non-assessable.
Apogee Therapeutics, Inc. |
August 12, 2024
Page 4 |
| 4. | With respect to any Warrants, when: |
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a. |
the warrant agreement relating to such Warrants (the “Warrant Agreement”), if any, has been duly executed and delivered by the Company and each other party thereto, |
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b. |
the terms of the Warrants have been established in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and |
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c. |
the Warrants have been duly executed (in the case of certificated Warrants) and delivered in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
such Warrants will be legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
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5. |
With respect to any Units, when: |
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a. |
the unit agreement relating to the Units (the “Unit Agreement”), if any, has been duly executed and delivered by the Company and each other party thereto, |
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b. |
the terms of the Units have been duly established in accordance with the Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and |
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c. |
the Units have been duly executed (in the case of certificated Units) and delivered in accordance with the Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
the Units will be legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
The opinions expressed above are subject to the following exceptions,
qualifications, limitations and assumptions:
A. We render no opinion herein as to matters involving
the laws of any jurisdiction other than the State of New York and the United States of America and, for purposes of paragraphs 2 and 3
above, the Delaware General Corporation Law. We are not admitted to practice in the State of Delaware; however, we are generally familiar
with the Delaware General Corporation Law as currently in effect and have made such inquiries as we consider necessary to render the opinions
contained in paragraphs 2 and 3 above. This opinion is limited to the effect of the current state of the laws of the State of New York,
the United States of America and, to the limited extent set forth above, the laws of the State of Delaware and the facts as they currently
exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations
thereof or such facts.
B. The opinions above with respect to the Indenture,
the Debt Securities, the Warrants, the Warrant Agreement, the Units and the Unit Agreement (collectively, the “Documents”)
are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting
the rights and remedies of creditors’ generally, including without limitation the effect of statutory or other laws regarding fraudulent
transfers or preferential transfers, and (ii) general principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable
remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
Apogee Therapeutics, Inc. |
August 12, 2024
Page 5 |
C. We express no opinion regarding the effectiveness
of (i) any waiver of stay, extension or usury laws; (ii) provisions relating to indemnification, exculpation or contribution,
to the extent such provisions may be held unenforceable as contrary to public policy or federal or state securities laws; (iii) any
provision in any Document waiving the right to object to venue in any court; (iv) any agreement to submit to the jurisdiction of
any Federal court; or (v) any waiver of the right to jury trial.
D. To the extent relevant to our opinions in paragraphs
4 and 5 and not covered by our opinions in paragraphs 1, 2, and 3, we have assumed that any securities underlying, comprising or issuable
upon exchange, conversion or exercise of any Warrants or Units are validly issued, fully paid and non-assessable (in the case of an equity
security) or a legal, valid and binding obligation of the issuer thereof, enforceable against such issuer in accordance with its terms.
You have informed us that you intend to issue Securities from time
to time on a delayed or continuous basis, and we understand that prior to issuing any Securities pursuant to the Registration Statement
(i) you will advise us in writing of the terms thereof, and (ii) you will afford us an opportunity to (x) review the operative
documents pursuant to which such Securities are to be issued or sold (including the applicable offering documents), and (y) file
such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and
the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
Exhibit 5.2
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Gibson, Dunn & Crutcher LLP
T: +1 415.393.4631
gibsondunn.com |
August 12, 2024
Apogee Therapeutics, Inc.
221 Crescent St. Building 17, Suite 102b
Waltham, MA 02453
Re: Apogee Therapeutics, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (the “Registration
Statement”) of Apogee Therapeutics, Inc., a Delaware corporation (the “Company”), filed with the Securities and
Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”),
and the prospectus supplement thereto dated August 12, 2024 (the “Prospectus Supplement”), in connection with the offering
by the Company of up to $300,000,000 of the Company’s common stock, par value $0.00001 per share (the “Shares”).
In arriving at the opinion expressed below, we have examined originals,
or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of specimen common
stock certificates and such other documents, corporate records, certificates of officers of the Company and of public officials and other
instruments as we have deemed necessary or advisable to enable us to render the opinions set forth below. In our examination, we have
assumed without independent investigation the genuineness of all signatures, the legal capacity and competency of all natural persons,
the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to
us as copies. We have further assumed that all offers and sales of the Shares will comply with the minimum offering price and pricing
formula set forth in the authorization of the offering and sale of the Shares by the Company’s Board of Directors.
Based upon the foregoing, and subject to the assumptions, exceptions,
qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against payment therefor as set forth
in the Registration Statement and the Prospectus Supplement thereto, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and
the Prospectus Supplement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
| Very Truly yours, |
|
| |
|
| /s/ Gibson, Dunn & Crutcher LLP |
|
Gibson,
Dunn & Crutcher LLP
One Embarcadero
Center Suite 2600 | San Francisco, CA 94111-3715 | T: 415.393.8200 | F: 415.393.8306 | gibsondunn.com
Exhibit 23.1
Consent of Independent Registered
Public Accounting Firm
We consent to the reference to our firm under
the caption "Experts" in this Registration Statement (Form S-3) and related Prospectus of Apogee Therapeutics, Inc.
for the registration of shares of its common stock, preferred stock, debt securities, warrants and/or units and to the incorporation by
reference therein of our report dated March 5, 2024, with respect to the consolidated financial statements of Apogee Therapeutics, Inc.,
included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 12, 2024
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
Registration Statement under the Securities
Act of 1933
(Form Type)
Apogee Therapeutics, 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 |
|
|
Proposed
Maximum
Offering
Price per
Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee
Rate (3) |
|
|
Amount of
Registration
Fee (3) |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Newly Registered Securities |
|
| Fees to Be Paid |
|
Equity |
|
Common Stock, $0.00001 par value per share(1) |
|
Rule 456(b) and 457(r) |
|
|
(1) |
|
|
(2) |
|
|
(2) |
|
|
(3) |
|
|
(3) |
|
|
| Fees to Be Paid |
|
Equity |
|
Preferred Stock, $0.00001 par value per share(1) |
|
Rule 456(b) and 457(r) |
|
|
(1) |
|
|
(2) |
|
|
(2) |
|
|
(3) |
|
|
(3) |
|
|
| Fees to Be Paid |
|
Debt |
|
Debt Securities |
|
Rule 456(b) and 457(r) |
|
|
(1) |
|
|
(2) |
|
|
(2) |
|
|
(3) |
|
|
(3) |
|
|
| Fees to Be Paid |
|
Other |
|
Warrants(1) (4) |
|
Rule 456(b) and 457(r) |
|
|
(1) |
|
|
(2) |
|
|
(2) |
|
|
(3) |
|
|
(3) |
|
|
| Fees to Be Paid |
|
Other |
|
Units(1) |
|
Rule 456(b) and 457(r) |
|
|
(1) |
|
|
(2) |
|
|
(2) |
|
|
(3) |
|
|
(3) |
|
|
| Fees to Be Paid |
|
Equity |
|
Common Stock, $0.00001 par value per share |
|
Rule 457(o) and Rule 457(r) |
|
|
$300,000,000 |
|
|
|
|
|
$300,000,000 |
|
|
0.00014760 |
|
|
$44,280.00 |
|
|
| Fees Previously Paid |
|
|
|
N/A |
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
| |
|
|
|
Total Offering Amounts |
|
|
|
|
|
$300,000,000 |
|
|
|
|
|
$44,280.00 |
|
|
| |
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
| |
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
| |
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
$44,280.00 |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (1) |
An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to time be issued at indeterminate prices and as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable antidilution provisions. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. |
| (2) |
The proposed maximum per security and aggregate offering prices per class of securities will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in units. |
| (3) |
In accordance with Rule 456(b) and 457(r) under the Securities Act, the Registrant is deferring payment of all registration fees other than the registration fee due in connection with $300,000,000 of shares of common stock that may be issued and sold from time to time under the sale agreement prospectus supplement included in this registration statement. Any subsequent registration fees will be paid on a pay-as-you-go basis. |
| (4) |
The warrants covered by this registration statement may be warrants to purchase common stock, preferred stock or other securities of the Registrant. |
Apogee Therapeutics (NASDAQ:APGE)
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