As filed with the Securities and Exchange Commission
 
on August 9, 2023.
Registration No. 333-
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
 
UNDER THE SECURITIES ACT OF 1933
VAXXINITY,
 
INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
86-2083865
(State or Other Jurisdiction of Incorporation or Organization)
(I.R.S. Employer Identification Number)
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
(Address, Including Zip Code, and Telephone Number,
 
Including Area Code, of Registrant’s Principal Executive Offices)
Mei Mei Hu
Chief Executive Officer
Vaxxinity, Inc.
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
(Name, Address, Including Zip Code, and Telephone Number,
 
Including Area Code, of Agent For Service)
Copy to:
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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.
Large accelerated filer
☐
 
Accelerated filer
☐
Non-accelerated filer
☒
 
Smaller reporting company
☒
 
Emerging growth company
☒
If an emerging growth company,
 
indicate by check mark if the registrant has elected
 
not to use the extended transition period for complying
 
with any
new or revised financial accounting standards provided
 
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
The registrant hereby amends this registration
 
statement on such date or dates as may
 
be necessary to delay its effective
date until the registrant shall file a further amendment
 
which specifically states that this registration statement
 
shall
thereafter become effective in accordance with
 
Section 8(a) of the Securities Act, or until
 
the registration statement shall
become effective on such date as the Securities
 
and Exchange Commission, acting pursuant to
 
said Section 8(a), may
determine.
EXPLANATORY
 
NOTE
Vaxxinity,
 
Inc. (the “Company”) is filing this registration statement,
 
which contains two prospectuses:
●
 
a base prospectus that covers the offering and sale
 
of up to $300,000,000 of the Company’s
Class A common stock, preferred stock, debt securities,
 
warrants, subscription rights and units;
and
●
 
a sales agreement prospectus supplement that covers the offering
 
and sale of up to
$100,000,000 of the Company’s Class A common
 
stock that may be sold under the Open Market
Sale Agreement
SM
 
(the “sales agreement”) between the Company and
 
Jefferies LLC dated
August 9, 2023.
The base prospectus immediately follows this explanatory
 
note. The sales agreement prospectus
supplement immediately follows the base prospectus.
 
The Class A common stock that may be offered
and sold pursuant to the sales agreement prospectus supplement
 
is included in the $300,000,000 of
securities that may be offered and sold by the Company
 
pursuant to the base prospectus. Any portion of
the $100,000,000 included in the sales agreement prospectus
 
supplement that remains unsold pursuant
to the sales agreement will be available for sale in other
 
offerings pursuant to the base prospectus and a
corresponding prospectus supplement.
vaxxs3082023p3i0
The information contained in this prospectus is not complete
 
and may be changed. These
securities may not be sold until the registration statement
 
filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to
 
sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction
 
where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED
 
August 9, 2023
PROSPECTUS
$300,000,000
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
We may offer from time to time, in one
 
or more offerings, up to $300,000,000 of any
 
combination of the
following securities: Class A common stock, preferred stock,
 
debt securities, warrants, subscription rights
and units (collectively,
 
the “securities”). We may offer and
 
sell these securities at times, in amounts, at
prices and on terms to be determined at or prior to the
 
time of each offering. The specific terms of these
securities and information regarding the offering
 
in which these securities will be offered will
 
be provided
in supplements to this prospectus. The prospectus supplements
 
may also add, update or change the
information contained in this prospectus. You
 
should read this prospectus and any applicable
 
prospectus
supplement carefully before you invest.
Our Class A common stock is listed on the Nasdaq Global
 
Market (“Nasdaq”) under the symbol “VAXX
 
.”
As of the date of this prospectus, we are an “emerging
 
growth company” as defined under the U.S.
federal securities laws and, as such, we have elected to comply
 
with certain reduced public company
reporting requirements for this prospectus and the documents
 
incorporated by reference in this
prospectus.
Investing in our securities involves certain risks. See the
 
“Risk Factors” section beginning on
page 4 of this prospectus,
 
in any applicable prospectus supplement and in our
 
Securities and
Exchange Commission (“SEC”) filings that are incorporated
 
by reference in this prospectus.
Neither the Securities and Exchange Commission nor
 
any state securities commission has
approved or disapproved these securities, or determined
 
if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is
 
, 2023.
 
TABLE OF CONTENTS
Page
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This prospectus is part of a registration statement that
 
we filed with the SEC utilizing a “shelf” registration
process. Under this shelf registration process, we may
 
offer from time to time, in one or more offerings,
 
up
to $300,000,000 of the securities described in this prospectus.
 
This prospectus provides you with a
general description of the securities that we may offer
 
.
 
Each time we offer and sell securities, we will
provide a prospectus supplement accompanied by this
 
prospectus. The prospectus supplements will
contain the specific terms of the securities being offered
 
and information regarding the offering in which
the securities are offered. The prospectus supplements
 
may also add, update or change the information
contained in this prospectus. You
 
should read both this prospectus and any prospectus
 
supplement
together with the additional information described under
 
the heading “Where You
 
Can Find More
Information.”
The information contained in this prospectus, any applicable
 
prospectus supplement, any related free
writing prospectus and any document incorporated by
 
reference in this prospectus is accurate only as
 
of
their respective dates, regardless of the time of delivery
 
of this prospectus or the sale of any securities.
Our business, financial condition, results of operations
 
and prospects may have changed materially since
those dates.
We have not authorized anyone to provide you
 
with information that is different from that contained
 
in this
prospectus, any amendment or supplement to this prospectus,
 
or any free writing prospectus that we may
authorize to be delivered or made available to you. We
 
take no responsibility for, and
 
provide no
assurance as to the reliability of, any other information
 
that others may give you. This prospectus does
not constitute an offer to sell or the solicitation of
 
an offer to buy any securities other than the
 
securities
described in this prospectus or an offer to sell or the
 
solicitation of an offer to buy such securities
 
in any
circumstances in which such offer or solicitation
 
is unlawful.
Unless otherwise indicated or the context otherwise requires,
 
all references in this prospectus to
“Vaxxinity,” the “Company,”
 
“we,” “us” and “our” refer to Vaxxinity,
 
Inc. and its consolidated subsidiaries.
1
VAXXINITY,
 
INC.
We are a purpose-driven biotechnology company committed
 
to democratizing healthcare across the
globe. Our vision is to disrupt the existing treatment paradigm
 
for chronic diseases, increasingly
dominated by drugs, particularly monoclonal antibodies
 
(“mAbs”), which suffer from prohibitive costs and
cumbersome administration. We believe our synthetic
 
peptide vaccine platform (“Vaxxine
 
Platform”) has
the potential to enable a new class of therapeutics
 
that will improve the quality and convenience of care,
reduce costs and increase access to treatments for a
 
wide range of indications. Our Vaxxine
 
Platform is
designed to harness the immune system to convert the body
 
into its own “drug factory,”
 
stimulating the
production of antibodies with a therapeutic or protective
 
effect. While traditional vaccines have been
 
able
to leverage this approach against infectious diseases, they have
 
historically been unable to resolve key
challenges in the fight against chronic diseases. We
 
believe our Vaxxine
 
Platform has the potential to
overcome these challenges and has the potential to bring
 
the efficiency of vaccines to a whole new
 
class
of medical conditions. Specifically,
 
our technology is designed to use synthetic peptides to mimic
 
and
optimally combine biological epitopes in order to selectively
 
activate the immune system, producing highly
specific antibodies against only the desired targets, including
 
self-antigens, making possible the safe and
effective treatment of chronic diseases by vaccines.
 
The modular and synthetic nature of our Vaxxine
Platform generally provides significant speed and efficiency
 
in candidate development and has generated
multiple product candidates that we are designing to
 
have safety and efficacy equal to or greater than
 
the
standard-of-care treatments for many chronic diseases,
 
with more convenient administration and
meaningfully lower costs. Our current pipeline consists of five
 
chronic disease product candidates from
early to late-stage development across multiple therapeutic
 
areas, including Alzheimer’s Disease (“AD”),
Parkinson’s Disease (“PD”), migraine and hypercholesterolemia.
 
Additionally, we
 
believe our Vaxxine
Platform may be used to disrupt the treatment paradigm
 
for a wide range of other chronic diseases,
including any that are or could potentially be successfully
 
treated by mAbs. We also will opportunistically
pursue infectious disease treatments. When the COVID
 
-19 pandemic struck the world in March 2020, we
quickly reallocated resources to develop a vaccine candidate.
 
We have assembled an industry-leading
team with extensive experience developing and commercializing
 
successful drugs that is committed to
realizing our mission of democratizing healthcare.
 
Our principal executive offices are located at 505
 
Odyssey Way,
 
Merritt Island, Florida 32953, and our
telephone number is (254) 244-5739. Our website address
 
is
www.vaxxinity.com
. Information on, or
accessible through, our website is not part of this prospectus,
 
nor is such content incorporated by
reference in this prospectus,
 
and should not be relied upon in determining whether
 
to make an investment
in our securities.
 
2
SPECIAL NOTE ON FORWARD
 
-LOOKING STATEMENTS
This prospectus, including the documents incorporated
 
by reference in this prospectus,
 
contains forward-
looking statements within the meaning of Section 21E of the
 
Exchange Act and Section 27A of the
Securities Act of 1933, as amended (the “Securities Act”)
 
.
 
Forward-looking statements are neither
historical facts nor assurances of future performance. Instead,
 
they are based on our current beliefs,
expectations and assumptions regarding the future of
 
our business, future plans and strategies and other
future conditions. In some cases, you can identify forward
 
-looking statements because they contain
words such as “anticipate,” “believe,” “estimate,” “expect,”
 
“intend,” “may,” “predict,”
 
“project,” “target,”
“potential,” “seek,” “will,” “would,” “could,” “should,” “continue,”
 
“contemplate,” “plan,” other words and
terms of similar meaning and the negative
 
of these words or similar terms.
All forward-looking statements speak only as of the date
 
on which they are made. Forward-looking
statements are subject to known and unknown risks
 
and uncertainties, many of which may be beyond our
control. We caution you that forward-looking statements
 
are not guarantees of future performance or
outcomes and that actual performance and outcomes
 
may differ materially from those made in or
suggested by the forward-looking statements. Factors
 
that could cause actual results and outcomes to
differ materially from those reflected in forward-looking
 
statements include, among others, the following:
the prospects of our product candidates, including the
 
progress, number, scope, cost,
 
results and timing
of data from our development activities, preclinical trials
 
and clinical trials for our product candidates or
programs, such as the target indication(s) for development or approval,
 
the size, design, population,
conduct, cost, objective or endpoints of any clinical trial,
 
or the timing for initiation or completion of or
availability of results from any clinical trial, for submission,
 
review or approval of any regulatory filing, or
for meeting with regulatory authorities; the potential benefits
 
that may be derived from any of our product
candidates; the timing of and our ability to obtain and maintain regulatory
 
approval for our existing product
candidates, any product candidates that we may develop, and
 
any related restrictions, limitations, or
warnings in the label of any approved product candidates;
 
our ability to develop and commercialize new
products and product candidates; our ability to leverage our
 
Vaxxine Platform;
 
the rate and degree of
market acceptance of our products and product candidates;
 
estimates of our addressable market and
market growth, and expectations about market trends;
 
our future operations, financial position, revenue,
costs, expenses, uses of cash, capital requirements, our needs
 
for additional financing or the period for
which our existing cash resources will be sufficient
 
to meet our operating requirements; our ability to
comply with legal and regulatory requirements relating to privacy,
 
tax, anti-corruption and other applicable
laws; our ability to hire and retain key personnel and to
 
manage our future growth effectively; our
 
ability to
access capital on acceptable terms in a rising interest rate and
 
tighter credit environment; competitive
companies and technologies within our industry and our
 
ability to compete; our and our collaborators’,
including United Biomedical’s (“UBI”), ability and willingness
 
to obtain, maintain, defend and enforce our
intellectual property protection for our proprietary and collaborative
 
product candidates, and the scope of
such protection; the performance of third-party suppliers
 
and manufacturers and our ability to find
additional suppliers and manufacturers and obtain alternative
 
sources of raw materials; our ability and the
potential to successfully manufacture our product candidates
 
for pre-clinical use, for clinical trials and, if
approved, on a larger scale for commercial use; the ability
 
and willingness of our third-party collaborators,
including UBI, to continue research and development activities
 
relating to our product candidates and our
ability to attract additional collaborators with development, regulatory
 
and commercialization expertise;
general economic, political, demographic and business conditions
 
in the United States, Taiwan
 
and other
jurisdictions where we conduct business or clinical trials;
 
the potential effects of government regulation,
including regulatory developments in the United States and other
 
jurisdictions; ability to obtain additional
financing in future offerings or otherwise; the
 
effects of the Russia-Ukraine conflict and
 
the COVID-19
pandemic on business operations and the initiation, development
 
and operation of our clinical trials,
including patient enrollment of our clinical trials; and our
 
strategies, prospects, plans, expectations,
forecasts or objectives.
These factors should not be construed as exhaustive and should
 
be read in conjunction with the other
cautionary statements and information included in this prospectus,
 
including our most recent Annual
Report on Form 10-K and subsequent Quarterly Reports
 
on Form 10-Q and Current Reports on Form
8-K. New risk factors emerge from time to time, and it
 
is not possible to predict all such risk factors, nor
3
can we assess the impact of all such risk factors on our
 
business or the extent to which any factor or
combination of factors may cause actual results to differ
 
materially from those contained in any forward-
looking statement. Undue reliance should not be placed
 
on these forward-looking statements. We do not
undertake any obligation to make any revisions to these
 
forward-looking statements to reflect events or
circumstances after the date on which such statements
 
were made or to reflect the occurrence of
unanticipated events, except as required by law.
 
 
4
RISK FACTORS
Investing in our securities involves risk. Before making
 
a decision to invest in our securities, you should
carefully consider the risks described under “Risk Factors”
 
in the applicable prospectus supplement and
in our most recent Annual Report on Form 10-K, and
 
any updates to those risk factors in our subsequent
Quarterly Reports on Form 10-Q and Current Reports
 
on Form 8-K, together with all of the other
information appearing or incorporated by reference in this prospectus,
 
in light of your particular
investment objectives and financial circumstances. Although
 
we discuss key risks in our discussion of risk
factors, new risks may emerge in the future, which may
 
prove to be significant. We cannot predict future
risks or estimate the extent to which they may affect
 
our business, results of operations, financial
condition and prospects.
 
5
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the
 
net proceeds from our sale of securities will
be used for general corporate purposes, including working
 
capital, acquisitions, retirement of debt and
other business opportunities.
 
6
DESCRIPTION OF CAPITAL
 
STOCK
The following summary describes the material terms of our capital
 
stock, does not purport to be complete
and is qualified in its entirety by reference to our amended
 
and restated certificate of incorporation (our
“Charter”) and our amended and restated bylaws (our “Bylaws”),
 
copies of which have been filed as
exhibits to the registration statement of which this prospectus forms
 
a part, and applicable provisions of
the Delaware General Corporation Law (the “DGCL”).
Authorized Capital Stock
 
Our authorized capital stock consists of 1,000,000,000
 
shares of Class A common stock, par value
$0.0001 per share; 100,000,000 shares of Class B common
 
stock, par value $0.0001 per share; and
50,000,000 shares of preferred stock, par value $0.0001 per
 
share.
Common Stock
We have two classes of common stock: Class
 
A common stock and Class B common stock. Holders of
Class A common stock and Class B common stock have
 
identical rights, except with respect to voting and
conversion.
 
Voting Rights
. Except as otherwise expressly provided in our Charter
 
or Bylaws or required by
applicable law and subject to the rights of any preferred stock,
 
holders of Class A common stock are
entitled to one vote per share on all matters submitted
 
to a vote of stockholders and holders of Class B
common stock are entitled to ten votes per share on all
 
matters submitted to a vote of stockholders.
 
Our
common stockholders are not entitled to cumulative voting
 
in the election of directors. Unless a different
vote is required by applicable law or specifically required
 
by our Charter or Bylaws, if a quorum exists at
any meeting of stockholders, stockholders shall have approved
 
any matter (other than as described
below) if such matter is approved by the affirmative
 
vote of the majority of voting power of share capital
present in person or represented by proxy and entitled
 
to vote on such matter.
 
Subject to the rights of any
preferred stock to elect directors, if a quorum exists at
 
any meeting of stockholders, stockholders shall
have approved the election of a director if such director
 
is elected by a plurality of the votes cast.
 
Holders
of Class A common stock and Class B common stock
 
vote together as a single class on all matters
submitted to a vote of stockholders, except (i) if we were to seek
 
to amend our Charter to increase or
decrease the par value of a class of our capital stock,
 
then that class would be required to vote separately
to approve the proposed amendment and (ii) if we were
 
to seek to amend our Charter in a manner that
alters or changes the powers, preferences or special rights
 
of a class of our capital stock in a manner that
affected its holders adversely,
 
then that class would be required to vote separately
 
to approve the
proposed amendment.
 
Dividend Rights
. Subject to preferences of any preferred stock,
 
holders of common stock are entitled to
receive ratably such dividends as may be declared by our
 
board of directors out of funds legally available
therefor if our board of directors, in its discretion, determines
 
to issue dividends and only then at the times
and in the amounts that our board of directors may determine.
Rights upon Liquidation
. Upon liquidation, dissolution or winding-up of the Company,
 
holders of
common stock are entitled to receive their ratable share
 
of the net assets of the Company available after
payment of all debts and other liabilities, subject to the
 
prior preferential rights and payment of liquidation
preferences, if any, of
 
any preferred stock.
Conversion Rights
. Each share of Class B common stock is convertible
 
at any time at the option of the
holder into one share of Class A common stock. In addition,
 
each share of Class B common stock will
automatically convert into one share of Class A common
 
stock upon any transfer,
 
whether or not for value
and whether voluntary or involuntary or by operation of
 
law, except for transfers to
 
trusts solely for the
benefit of the stockholder and certain related entities, transfers
 
to partnerships, corporations and other
entities exclusively owned by the stockholder or certain
 
related entities, transfers to family members of the
stockholder and transfers between certain stockholders. Holders
 
of Class A common stock have no
conversion rights.
7
Other Rights
. Holders of common stock have no preemptive, subscription
 
or redemption rights. There
are no redemption or sinking fund provisions applicable
 
to our common stock.
Preferred Stock
Our board of directors has the authority,
 
subject to limitations imposed by Delaware law
 
or Nasdaq listing
standards, without any further vote or action by our stockholders,
 
to issue preferred stock in one or more
series and to fix the designations, powers, preferences,
 
limitations and rights of each series, including
dividend rates, conversion rights, voting rights, terms of
 
redemption, liquidation preferences, sinking fund
terms and the number of shares constituting each series.
 
Satisfaction of any dividend preferences of
outstanding preferred stock would reduce the amount
 
of funds available for the payment of dividends on
Class A common stock. Holders of preferred stock may
 
be entitled to receive a preference payment in the
event of our liquidation, dissolution or winding-up before any
 
payment is made to the holders of Class A
common stock. Our board of directors 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 Class
 
A
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 making it more difficult
 
for a third
party to acquire, or could discourage a third party from
 
seeking to acquire, a majority of our outstanding
voting stock, and may adversely affect the market
 
price of Class A common stock and the voting and
other rights of the holders of Class A common stock.
 
See “—Certain Anti-Takeover
 
Provisions of our
Charter, our Bylaws and Delaware
 
Law.”
When we offer to sell a particular series of preferred
 
stock, we will describe the specific terms of the
securities in a supplement to this prospectus. The preferred
 
stock will be issued under a certificate of
designations relating to each series of preferred stock
 
and is also subject to our Charter.
Voting Agreement
Our co-founders (Mei Mei Hu and Louis Reese), one of their affiliates
 
and United Biomedical, Inc.
(collectively our “principal stockholders”) entered into a
 
voting agreement on October 1, 2021 (the “Voting
Agreement”). We are not a party to the Voting
 
Agreement. The Voting Agreement
 
provides the
proxyholder, Ms. Hu, with the
 
authority (and irrevocable proxies) to direct the vote
 
and vote the shares of
capital stock held by the principal stockholders at her discretion
 
on all matters to be voted upon by
stockholders. The Voting Agreement
 
does not restrict any of the principal stockholders from transferring
any shares of our capital stock and, if any such shares
 
of capital stock are transferred, there is no
obligation for the transferee to join the Voting
 
Agreement (unless the transferee is an affiliate or family
member (or an entity or trust whose beneficial owner
 
or primary beneficiary is a family member) of one of
the parties to the Voting Agreement).
 
Mr. Reese will replace Ms.
 
Hu as the proxyholder under the Voting
 
Agreement upon the earliest of (i) Ms.
Hu’s death, (ii) a determination by a court of competent
 
jurisdiction in a final non-appealable order that
Ms. Hu is permanently and totally disabled and unable to engage
 
in any substantial gainful activity due to
a medically determinable physical or mental impairment that can
 
be expected to result in death within 12
months or which has lasted or can be expected to last
 
for a continuous period of at least 12 months and
(iii) six months after the later of Ms. Hu ceasing to be (x)
 
Chief Executive Officer and (y) Actively Engaged
(as defined below) (the “Replacement Date”);
provided
 
that the Replacement Date will be the date on
which Ms. Hu ceases to be Actively Engaged if Ms. Hu
 
is not then Chief Executive Officer and Ms. Hu
ceases to be Actively Engaged pursuant to clause (B)
 
of the definition of Actively Engaged below.
 
For
purposes of the Voting Agreement,
 
“Actively Engaged” means, on the date of determination,
 
Ms. Hu (A) is
then a director of the Company and (B) has not sold, or
 
otherwise disposed for pecuniary gain, shares of
Class B common stock in excess of 65% of the Class
 
B common stock she held on the date of the Voting
Agreement.
 
The Voting Agreement will terminate
 
upon the earliest to occur of the following: (i) the liquidation,
dissolution or winding up of the Company; (ii) the execution
 
by the Company of a general assignment for
8
the benefit of creditors or the appointment of a receiver
 
or trustee to take possession of the property and
assets of the Company; (iii) the unilateral decision of the
 
then current proxyholder (in such person’s sole
discretion) to terminate the Voting
 
Agreement, subject to a 30-day notice period; (iv)
 
on the Replacement
Date, if Mr. Reese is then (x)
 
deceased, (y) determined by a court of competent jurisdiction
 
in a final non-
appealable order to be permanently and totally disabled and
 
unable to engage in any substantial gainful
activity due to a medically determinable physical or mental
 
impairment that can be expected to result in
death within 12 months or which has lasted or can be expected
 
to last for a continuous period of at least
12 months or (z) not a director of the Company; or (v) after
 
the Replacement Date, upon the earliest to
occur of (x) Mr. Reese’s
 
death, (y) a determination by a court of competent jurisdiction
 
in a final non-
appealable order that Mr. Reese
 
is permanently and totally disabled and unable to
 
engage in any
substantial gainful activity due to a medically determinable
 
physical or mental impairment that can be
expected to result in death within 12 months or which
 
has lasted or can be expected to last for a
continuous period of at least 12 months or (z) Mr.
 
Reese ceasing to be director of the Company.
 
The foregoing summary does not purport to be complete
 
and is qualified in its entirety by reference to the
Voting Agreement,
 
a copy of which has
 
been filed as an exhibit to our most recent Annual Report
 
on
Form 10-K.
Certain Anti-Takeover
 
Provisions of our Charter, our
 
Bylaws and Delaware Law
Certain provisions of our Charter,
 
our Bylaws and the DGCL may discourage or make more
 
difficult a
takeover attempt that a stockholder might consider to
 
be in his, her or its best interest. These provisions
may also adversely affect the prevailing market
 
price for our Class A common stock. We believe
 
that the
benefits of increased protection give us the potential ability to
 
negotiate with the proponent of an
unsolicited proposal to acquire or restructure us, which
 
may result in an improvement of the terms of any
such proposal in favor of our stockholders, and outweigh
 
any potential disadvantage of discouraging
those proposals.
Authorized but Unissued Shares of Capital Stock
Our authorized but unissued common stock and preferred
 
stock are available for future issuance without
stockholder approval, subject to the applicable provisions
 
of the DGCL and Nasdaq listing standards.
These additional shares may be used for a variety of corporate
 
purposes, including future public offerings
to raise additional capital, corporate acquisitions and employee
 
benefit plans. One of the effects of the
existence of authorized but unissued common stock or preferred stock
 
may be to enable our board of
directors to issue shares to persons friendly to current
 
management, which issuance could render more
difficult or discourage an attempt to obtain control
 
of the Company by means of a merger,
 
tender offer,
proxy contest or otherwise, and thereby protect the continuity
 
of our management and possibly deprive
our stockholders of opportunities to sell their Class A common
 
stock at a price higher than the prevailing
market price.
Board Vacancies and Board Size
Our Charter provides that, subject to the rights of any
 
preferred stock, any vacancies, including any newly
created directorships, on our board of directors will be
 
filled by the affirmative vote of a majority
 
of the
remaining directors then in office, even if such directors
 
constitute less than a quorum, or by a sole
remaining director. In addition, the
 
number of directors constituting our board of directors
 
is exclusively to
be set by a resolution adopted by a majority vote of our
 
entire board of directors. These provisions
prevent a stockholder from increasing the size of our board
 
of directors and then gaining control of our
board of directors by filling the resulting vacancies with
 
its own nominees. This makes it more difficult to
change the composition of our board of directors and promotes
 
continuity of management.
No Cumulative Voting
Under the DGCL, stockholders are not entitled to cumulate
 
votes in the election of directors unless a
corporation’s certificate of incorporation provides otherwise.
 
Our Charter does not provide for cumulative
voting.
9
Stockholder Action by Written Consent and
 
Special Meetings of Stockholders
Our Charter and Bylaws provide that our stockholders
 
may take action by written consent so long as the
Voting Agreement is in effect
 
and our principal stockholders hold a majority of the
 
voting power of then-
outstanding shares of our capital stock. Our Charter and Bylaws
 
further provide that special meetings of
our stockholders may be called only by the chairperson
 
of our board of directors, the lead independent
director, our board of directors
 
pursuant to a written resolution adopted by the affirmative
 
vote of the
majority of the total numbers of directors assuming no
 
vacancies or, so long as the
 
Voting Agreement is
in effect and our principal stockholders hold a majority
 
of the voting power of then-outstanding shares of
our capital stock, the corporate secretary upon the written
 
request of holders of a majority of the voting
power of all then-outstanding shares of capital stock.
 
These provisions may delay the ability of our
stockholders to force consideration of a proposal or for
 
stockholders controlling a majority of our capital
stock to take any action, including the removal of directors.
Advance Notice Requirements for Stockholder Proposals
 
and Director Nominations
Our Bylaws establish advance notice procedures with
 
respect to stockholder proposals and the
nomination of candidates for election as directors at our
 
annual meeting of stockholders, and also specify
certain procedural requirements regarding the form, content
 
and timing of such notice. These provisions
might preclude our stockholders from bringing matters
 
before our annual meeting
 
of stockholders or from
making nominations for directors at our annual meeting of stockholders
 
if the proper procedures are not
followed. We expect that these provisions may
 
also discourage or deter a potential acquirer from
conducting a solicitation of proxies to elect the acquirer’s own slate
 
of directors or otherwise attempting to
obtain control of the Company.
Amendments to Our Charter and Bylaws
The DGCL provides generally that the affirmative
 
vote of a majority of the outstanding shares entitled to
vote thereon, voting together as a single class, is required to
 
amend a corporation’s certificate of
incorporation or bylaws, unless the corporation’s certificate
 
of incorporation requires a greater
percentage. Our Charter provides that at any time the
 
Voting Agreement is not in
 
effect or our principal
stockholders do not hold a majority of the voting power
 
of then-outstanding shares of our capital stock,
certain specified provisions in our Charter,
 
including provisions relating to the size of the board,
classification of the board, removal of directors, special meetings,
 
actions by written consent and
cumulative voting, may be amended, altered, rescinded
 
or repealed only by the affirmative vote of the
holders of at least 66 2/3% in voting power of all the then outstanding
 
shares of our capital stock entitled
to vote thereon, voting together as a single class. Our
 
Charter provides that our board of directors is
expressly authorized to amend, alter,
 
rescind or repeal, in whole or in part, or add
 
to, our Bylaws without
a stockholder vote in any manner not inconsistent with the
 
laws of the State of Delaware or our Charter.
Our Charter provides that at any time the Voting
 
Agreement is not in effect or our principal
 
stockholders
do not hold a majority of the voting power of then-outstanding
 
shares of our capital stock, any
amendment, alteration, rescission or repeal, in whole or in
 
part, of, or addition to, our Bylaws by our
stockholders requires the affirmative vote of
 
the holders of at least 66 2/3% in voting power of all the
 
then-
outstanding shares of our capital stock entitled to vote thereon,
 
voting together as a single class.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of
 
the DGCL. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a “business
 
combination” with an “interested stockholder” for
three years following the date that such stockholder became
 
an interested stockholder,
 
unless:
 
●
 
before such date, the board of directors of the corporation approved
 
either the business
combination or the transaction that resulted in the stockholder
 
becoming an interested
stockholder;
●
 
upon closing of the transaction that resulted in the stockholder
 
becoming an interested
stockholder, the interested
 
stockholder owned at least 85% of the voting stock of the
 
corporation
10
outstanding at the time the transaction began, excluding
 
for purposes of determining the voting
stock outstanding (but not the outstanding voting stock
 
owned by the interested stockholder)
those shares owned by (1) persons who are directors and
 
also officers and (2) employee stock
plans in which employee participants do not have the right to
 
determine confidentially whether
shares held subject to the plan will be tendered in a tender
 
or exchange offer; or
●
 
on or after such date, the business combination is approved
 
by the board of directors and
authorized at an annual or special meeting of the stockholders,
 
and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding
 
voting stock that is not owned by the
interested stockholder.
In general, Section 203 defines a “business combination”
 
to include, among other things, mergers, asset
and stock sales and other transactions resulting in a financial
 
benefit to an interested stockholder.
 
An
“interested stockholder” is a person who, together with its affiliates
 
and associates, owns, or did own
within three years prior to the determination of interested
 
stockholder status, 15% or more of the
corporation’s outstanding voting stock.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, our stockholders
 
will have appraisal rights in connection with a
merger or consolidation in which we are a constituent entity.
 
Pursuant to the DGCL, stockholders who
properly demand and perfect appraisal rights in connection with
 
such merger or consolidation will have
the right to receive payment of the fair value of their shares
 
as determined by the Delaware Court of
Chancery, if any,
 
on the amount determined to be the fair value, from the
 
effective time of the merger or
consolidation through the date of payment of the judgment.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring an action
 
in our name to procure a judgment in our
favor, also known as a derivative
 
action, provided that the stockholder bringing the
 
action is a holder of
our shares at the time of the transaction to which the action
 
relates or such stockholder’s stock thereafter
devolved by operation of law.
 
To
 
bring such an action, the stockholder must otherwise
 
comply with
Delaware law regarding derivative actions.
Exclusive Forum
Our Charter requires, to the fullest extent permitted by law,
 
that (1) any derivative action or proceeding
brought on behalf of the Company,
 
(2) any action asserting a claim of breach of a
 
fiduciary duty owed by
any of our directors, officers, other employees
 
or our stockholders to us or our stockholders, (3) any
action asserting a claim against us arising pursuant to
 
any provision of the DGCL, our Charter or our
Bylaws, or as to which the DGCL confers jurisdiction on
 
the Court of Chancery of the State of Delaware,
(4) any action to interpret, apply,
 
enforce or determine the validity of our Charter or Bylaws
 
and (5) any
action asserting a claim against us that is governed by
 
the internal affairs doctrine, in each case, may be
brought only in the Court of Chancery of the State of Delaware
 
(or, if the Court of
 
Chancery of the State of
Delaware does not have jurisdiction, the United States
 
District Court for the District of Delaware).
 
This
provision will not apply to suits brought to enforce any
 
duty or liability created by the Securities Act, the
Exchange Act or any other claim for which there is exclusive
 
federal or concurrent federal and state
jurisdiction.
Our Charter also provides that the federal district courts
 
of the United States of America will be the
exclusive forum for the resolution of any complaint asserting
 
a cause of action against us or any of our
directors, officers, employees or agents and arising
 
under the Securities Act. However,
 
Section 22 of the
Securities Act provides that federal and state courts have
 
concurrent jurisdiction over lawsuits brought
pursuant to the Securities Act or the rules and regulations
 
thereunder. To
 
the extent the exclusive forum
provision restricts the courts in which claims arising under
 
the Securities Act may be brought, there is
uncertainty as to whether a court would enforce such a
 
provision. Our Charter also provides that any
person or entity purchasing or otherwise acquiring any interest
 
in shares of our capital stock will be
11
deemed to have notice of and to have consented to the foregoing
 
provision;
provided
,
 
however
, that
investors cannot waive compliance with the federal securities
 
laws and the rules and regulations
thereunder.
 
We recognize that the forum selection clause in our
 
Charter may impose additional litigation costs on
stockholders in pursuing any such claims, particularly
 
if the stockholders do not reside in or near the State
of Delaware. Additionally,
 
the forum selection clause in our Charter may limit
 
our stockholders’ ability to
bring a claim in a forum that they find favorable for disputes with
 
us or our directors, officers, employees
or agents, which may discourage such lawsuits against
 
us and our directors, officers, employees and
agents even though an action, if successful, might benefit
 
our stockholders. The Court of Chancery of the
State of Delaware may also reach different judgments
 
or results than would other courts, including courts
where a stockholder considering an action may be located or would
 
otherwise choose to bring the action,
and such judgments may be more or less favorable to
 
us than our stockholders.
Limitation of Liability and Indemnification of Directors and
 
Officers
Our Charter includes provisions that limit the personal liability
 
of our directors for monetary damages for
breach of their fiduciary duties as directors, except to the extent
 
that such limitation is not permitted under
the DGCL. Such limitation shall not apply,
 
except to the extent permitted by the DGCL, to (1)
 
any breach
of a director’s duty of loyalty to us or our stockholders, (2) acts
 
or omissions not in good faith or that
involve intentional misconduct or a knowing violation of
 
law, (3) any unlawful payment
 
of a dividend or
unlawful stock repurchase or redemption, as provided
 
in Section 174 of the DGCL or (4) any transaction
from which a director derived an improper personal benefit. These
 
provisions will have no effect on the
availability of equitable remedies such as an injunction
 
or rescission based on a director’s breach of his or
her duty of care. Any amendment to, or repeal of, these
 
provisions will not eliminate or reduce the effect
of these provisions in respect of any act, omission or claim
 
that occurred or arose prior to that amendment
or repeal.
Our Bylaws provide for indemnification, to the fullest extent permitted
 
by the DGCL, of any person made
or threatened to be made a party to any action, suit or
 
proceeding by reason of the fact that such person
is or was a director, officer,
 
employee or agent of the Company,
 
or, at the request of the
 
Company,
serves or served as a director,
 
officer, employee
 
or agent of another corporation or of a partnership, joint
venture, trust or any other enterprise, against all expenses,
 
judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection
 
with the defense or settlement of such action,
suit or proceeding. In addition, we have entered into indemnification
 
agreements with each of our
directors pursuant to which we have agreed to indemnify
 
each such director to the fullest extent permitted
by the DGCL.
Insofar as indemnification for liabilities arising under the Securities
 
Act may be permitted to directors or
officers,
 
we have been informed that in the opinion of the SEC such
 
indemnification is against public
policy and is therefore unenforceable.
Registration Rights
We and certain of our stockholders entered into a
 
Registration Rights Agreement on November 15, 2021
(the “Registration Rights Agreement”) pursuant to which
 
such stockholders have specified rights to
require us to register all or a portion of their shares of Class
 
A common stock (including shares received
upon conversion of shares of Class B common stock)
 
under the Securities Act.
 
The registration rights will terminate upon the earlier of (i)
 
with respect to any stockholder who then holds
less than five percent of the then-outstanding common
 
stock, such time as Rule 144 or another similar
exemption under the Securities Act is available for the sale of
 
all of such stockholder’s shares without
limitation and without regard to the availability of current public
 
information and (ii) four years following our
initial public offering. We will generally
 
pay the registration expenses (other than underwriting
 
discounts
and selling commissions), including the reasonable fees
 
and disbursements, not to exceed $50,000 of
one counsel, of the holders of the securities registered
 
pursuant to the registrations described below.
 
12
S-1 Registration Rights
. The holders of a majority of the registrable securities
 
then outstanding may
make a written request that we register the offer and
 
sale of their shares on a registration statement on
Form S-1. Such request for registration must cover at least 30%
 
of the registrable securities then
outstanding. We are obligated to effect
 
only one such registration
 
and we are not required to effect a
registration on Form S-1 if such registrable securities
 
may be registered on Form S-3 as described below.
In an underwritten public offering, the underwriters
 
have the right, subject to specified conditions, to limit
the number of shares that such holders may include for
 
registration.
S-3 Registration Rights
. The holders of at least 20% of the registrable securities
 
then outstanding may
make a written request that we register the offer and
 
sale of their shares on a registration statement
 
on
Form S-3 if we are eligible to file a registration statement
 
on Form S-3, so long as the request covers
securities the anticipated aggregate offering price of
 
which, net of underwriting discounts, selling
commissions and other selling expenses, is at least $3.0 million.
 
These stockholders may make an
unlimited number of requests for registration on Form
 
S-3;
 
provided,
however
, we are not required to
effect a registration on Form S-3 if we have effected
 
two such registrations within the 12-month period
preceding the date of the request. In an underwritten public
 
offering, the underwriters have the right,
subject to specified conditions, to limit the number of shares
 
that such holders may include for
registration.
 
Piggyback Registration Rights
. If we propose to register the offer and sale of our
 
common stock under
the Securities Act in connection with the public
 
offering of such common stock solely for cash,
 
the holders
of registrable securities will be entitled to certain “piggyback”
 
registration rights allowing the holders to
include their shares in such registration, subject to certain
 
marketing and other limitations. As a result,
whenever we propose to file a registration statement under the
 
Securities Act, other than with respect to
(i) a registration related to the sale or grant of securities
 
to our employees or a subsidiary’s employees
pursuant to a stock option, stock purchase, equity incentive
 
or similar plan, (ii) a registration relating to a
Rule 145 transaction, (iii) a registration on any registration
 
form that does not include substantially the
same information as would be required to be included in a registration
 
statement covering the sale of
registrable securities or (iv) a registration in which the only common
 
stock being registered is common
stock issuable upon conversion of debt securities that are also
 
being registered, the holders of registrable
securities are entitled to notice of the registration and have the
 
right, subject to certain limitations, to
include their shares in the registration. We have
 
the right to terminate or withdraw any registration
initiated pursuant to such “piggyback registration” rights
 
described above before the effective date of such
registration, whether or not any stockholder has elected to
 
include shares of their common stock in such
registration. In an underwritten public offering, the
 
underwriters have the right, subject to specified
conditions, to limit the number of shares that such holders
 
may include for registration.
The foregoing summary does not purport to be complete
 
and is qualified in its entirety by reference to the
Registration Rights Agreement, a copy of which has been filed
 
as an exhibit to our most recent Annual
Report on Form 10-K.
Listing
Our Class A common stock is listed on Nasdaq under
 
the symbol “VAXX
 
.”
 
13
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, which may be secured
 
or unsecured and may be exchangeable for and/or
convertible into other securities, including our Class A
 
common stock. The debt securities will be issued
under one or more separate indentures between us and
 
a designated trustee. The terms of each series of
debt securities being offered, including the terms,
 
if any, on which a
 
series of debt securities may be
convertible into or exchangeable for other securities, and the
 
material terms of the indenture will be set
forth in the applicable prospectus supplement.
The applicable prospectus supplement will set forth, to
 
the extent required, the following terms of the debt
securities in respect of which the prospectus supplement
 
is delivered:
●
 
the title of the series;
●
 
the aggregate principal amount;
●
 
the issue price or prices, expressed as a percentage of the
 
aggregate principal amount of the
debt securities;
●
 
any limit on the aggregate principal amount;
●
 
the date or dates on which principal is payable;
●
 
the interest rate or rates (which may be fixed or variable)
 
or, if applicable, the method
 
used to
determine such rate or rates;
●
 
the date or dates on which interest, if any,
 
will be payable and any regular record date for the
interest payable;
●
 
the place or places where principal and, if applicable, premium
 
and interest, is payable;
●
 
the terms and conditions upon which we may,
 
or the holders may require us to, redeem or
repurchase the debt securities;
●
 
the denominations in which such debt securities may be
 
issuable, if other than denomination of
$1,000 or any integral multiple of that number;
●
 
whether the debt securities are to be issuable in the form of certificated
 
debt securities or global
debt securities;
●
 
the portion of principal amount that will be payable upon declaration
 
of acceleration of the
maturity date if other than the principal amount of the debt securities;
●
 
the currency of denomination;
●
 
the designation of the currency,
 
currencies or currency units in which payment of principal and,
 
if
applicable, premium and interest, will be made;
●
 
if payments of principal and, if applicable, premium or
 
interest, on the debt securities are to be
made in one or more currencies or currency units other
 
than the currency of denominations, the
manner in which exchange rate with respect to such
 
payments will be determined;
●
 
if amounts of principal and, if applicable, premium and interest may
 
be determined by reference
to an index based on a currency or currencies, or by reference
 
to a commodity,
 
commodity index,
stock exchange index, or financial index, then the manner
 
in which such amounts will be
determined;
14
●
 
the provisions, if any,
 
relating to any collateral provided for such debt securities;
●
 
any events of default;
●
 
the terms and conditions, if any,
 
for conversion into or exchange for common stock
 
;
●
 
any depositaries, interest rate calculation agents, exchange rate
 
calculation agents, or other
agents; and
●
 
the terms and conditions, if any,
 
upon which the debt securities shall be subordinated
 
in right of
payment to other indebtedness of our company.
 
15
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or
 
equity securities or securities of third parties or other
rights, including rights to receive payment in cash or securities
 
based on the value, rate or price of one or
more specified commodities, currencies, securities or indices,
 
or any combination of the foregoing.
Warrants may be issued independently
 
or together with any other securities and may be attached to, or
separate from, such securities. Each series of warrants
 
will be issued under a separate warrant
agreement to be entered into between us and a warrant
 
agent. The terms of any warrants to be issued
and a description of the material provisions of the applicable
 
warrant agreement will be set forth in the
applicable prospectus supplement.
The applicable prospectus supplement will describe the
 
following terms of any warrants in respect of
which this prospectus is being delivered:
●
 
the title of such warrants;
●
 
the aggregate number of such warrants;
●
 
the price or prices at which such warrants will be issued;
●
 
the currency or currencies in which the price of such warrants
 
will be payable;
●
 
the securities or other rights, including rights to receive
 
payment in cash or securities based on
the value, rate or price of one or more specified commodities, currencies,
 
securities or indices, or
any combination of the foregoing, purchasable upon exercise
 
of such warrants;
●
 
the price at which and the currency or currencies in which
 
the securities or other rights
purchasable upon exercise of such warrants may be purchased;
●
 
the date on which the right to exercise such warrants shall
 
commence and the date on which
such right shall expire;
●
 
if applicable, the minimum or maximum amount of such
 
warrants which may be exercised at any
one time;
●
 
if applicable, the designation and terms of the securities
 
with which such warrants are issued and
the number of such warrants issued with each such security;
●
 
if applicable, the date on and after which such warrants and
 
the related securities will be
separately transferable;
●
 
information with respect to book-entry procedures, if any;
●
 
if applicable, a discussion of any material United States
 
Federal income tax considerations; and
●
 
any other terms of such warrants, including terms, procedures
 
and limitations relating to the
exchange and exercise of such warrants.
 
16
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our securities.
 
The subscription rights may be issued
independently or together with any other securities, may
 
be attached to, or separate from, such securities
and may or may not be transferable by the shareholder
 
receiving the subscription rights. In connection
with any offering of subscription rights, we may
 
enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the
 
underwriters or other purchasers may be required
to purchase any unsubscribed securities after such offering.
 
The terms of any subscription rights being
offered will be set forth in the applicable prospectus
 
supplement.
The applicable prospectus supplement will set forth the
 
following terms of the subscription rights in
respect of which this prospectus is delivered:
●
 
the exercise price;
●
 
the aggregate number of rights to be issued;
●
 
the type and number of securities purchasable upon exercise
 
of each right;
●
 
the procedures and limitations relating to the exercise of the rights;
●
 
the date upon which the exercise of rights will commence;
●
 
the record date, if any,
 
to determine who is entitled to the rights;
●
 
the expiration date;
●
 
the extent to which the rights are transferable;
●
 
information regarding the trading of rights, including the
 
stock exchanges, if any,
 
on which the
rights will be listed;
●
 
the extent to which the subscription rights may include an over-subscription
 
privilege with respect
to unsubscribed securities;
●
 
if appropriate, a discussion of material U.S. federal income
 
tax considerations;
●
 
if applicable, the material terms of any standby underwriting
 
or purchase arrangement entered
into by us in connection with the offering of the rights;
 
and
●
 
any other material terms of the rights.
If fewer than all of the subscription rights issued in any
 
rights offering are exercised, we may offer
 
any
unsubscribed securities directly to persons other than
 
shareholders, to or through agents, underwriters or
dealers or through a combination of such methods, including
 
pursuant to standby arrangements, as
described in the applicable prospectus supplement.
 
17
DESCRIPTION OF UNITS
We may issue units consisting of one or more warrants,
 
debt securities, shares of preferred stock, shares
of common stock or any combination of such securities.
 
The terms of any units being offered will be set
forth in the applicable prospectus supplement.
 
The applicable prospectus supplement will set forth the
 
following terms of the units in respect of which
this prospectus is delivered:
●
 
the terms of the units and of the warrants, debt securities
 
and common stock comprising the
units, including whether and under what circumstances
 
the securities comprising the units may be
traded separately;
●
 
a description of the terms of any unit agreement governing the
 
units; and
●
 
a description of the provisions for the payment, settlement,
 
transfer or exchange of the units.
 
18
FORMS OF SECURITIES
Each debt security,
 
warrant and unit will be represented either by a certificate
 
issued in definitive form to
a particular investor or by one or more global securities
 
representing the entire issuance of securities.
Certificated securities in definitive form and global securities
 
will be issued in registered form. Definitive
securities name you or your nominee as the owner of the
 
security, and
 
in order to transfer or exchange
these securities or to receive payments other than interest
 
or other interim payments, you or your
nominee must physically deliver the securities to the trustee, registrar,
 
paying agent or other agent, as
applicable. Global securities name a depositary or its nominee
 
as the owner of the debt securities,
warrants or units represented by these global securities.
 
The depositary maintains a computerized
system that will reflect each investor’s beneficial ownership of the
 
securities through an account
maintained by the investor with its broker/dealer,
 
bank, trust company or other representative, as we
explain more fully below.
Global Securities
We may issue the registered debt securities, warrants
 
and units in the form of one or more fully registered
global securities that will be deposited with a depositary or
 
its nominee identified in the applicable
prospectus supplement and registered in the name of
 
that depositary or nominee. In those cases, one or
more registered global securities will be issued in a denomination
 
or aggregate denominations equal to
the portion of the aggregate principal or face amount
 
of the securities to be represented by registered
global securities. Unless and until it is exchanged in whole for
 
securities in definitive registered form, a
registered global security may not be transferred except
 
as a whole by and among the depositary for the
registered global security,
 
the nominees of the depositary or any successors
 
of the depositary or those
nominees.
If not described below, any
 
specific terms of the depositary arrangement with respect
 
to any securities to
be represented by a registered global security will be
 
described in the prospectus supplement relating to
those securities. We anticipate that the following provisions
 
will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will
 
be limited to persons, called
participants, that have accounts with the depositary or
 
persons that may hold interests through
participants. Upon the issuance of a registered global security,
 
the depositary will credit, on its book-entry
registration and transfer system, the participants’
 
accounts with the respective principal or face amounts
of the securities beneficially owned by the participants.
 
Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts
 
to be credited. Ownership of beneficial
interests in a registered global security will be shown on,
 
and the transfer of ownership interests will be
effected only through, records maintained by the
 
depositary, with respect
 
to interests of participants, and
on the records of participants, with respect to interests
 
of persons holding through participants. The laws
of some states may require that some purchasers of securities
 
take physical delivery of these securities in
definitive form. These laws may impair your ability to own,
 
transfer or pledge beneficial interests in
registered global securities.
So long as the depositary,
 
or its nominee, is the registered owner of a registered
 
global security, that
depositary or its nominee, as the case may be, will be
 
considered the sole owner or holder of the
securities represented by the registered global security
 
for all purposes under the applicable indenture,
warrant agreement, guaranteed trust preferred security or
 
unit agreement. Except as described below,
owners of beneficial interests in a registered global security
 
will not be entitled to have the securities
represented by the registered global security registered
 
in their names, will not receive or be entitled to
receive physical delivery of the securities in definitive form and
 
will not be considered the owners or
holders of the securities under the applicable indenture, warrant
 
agreement, guaranteed trust preferred
security or unit agreement. Accordingly,
 
each person owning a beneficial interest in a registered
 
global
security must rely on the procedures of the depositary for that
 
registered global security and, if that
person is not a participant, on the procedures of the participant
 
through which the person owns its
interest, to exercise any rights of a holder under the applicable
 
indenture, warrant agreement, guaranteed
trust preferred security or unit agreement. We understand
 
that under existing industry practices, if we
request any action of holders or if an owner of a beneficial
 
interest in a registered global security desires
19
to give or take any action that a holder is entitled to give or take
 
under the applicable indenture, warrant
agreement, guaranteed trust preferred security or unit agreement,
 
the depositary for the registered global
security would authorize the participants holding the relevant
 
beneficial interests to give or take that
action, and the participants would authorize beneficial owners
 
owning through them to give or take that
action or would otherwise act upon the instructions of beneficial
 
owners holding through them.
Principal, premium, if any,
 
and interest payments on debt securities, and any payments to
 
holders with
respect to warrants, guaranteed trust preferred securities
 
or units, represented by a registered global
security registered in the name of a depositary or its nominee
 
will be made to the depositary or its
nominee, as the case may be, as the registered owner
 
of the registered global security.
 
None of the
Company, the trustees,
 
the warrant agents, the unit agents or any other agent
 
of the Company,
 
agent of
the trustees or agent of the warrant agents or unit agents
 
will have any responsibility or liability for any
aspect of the records relating to payments made on account
 
of beneficial ownership interests in the
registered global security or for maintaining, supervising
 
or reviewing any records relating to those
beneficial ownership interests.
We expect that the depositary for any of the
 
securities represented by a registered global security,
 
upon
receipt of any payment of principal, premium, interest or other
 
distribution of underlying securities or other
property to holders on that registered global security,
 
will immediately credit participants’
 
accounts in
amounts proportionate to their respective beneficial interests
 
in that registered global security as shown
on the records of the depositary.
 
We also expect that payments by participants
 
to owners of beneficial
interests in a registered global security held through participants
 
will be governed by standing customer
instructions and customary practices, as is now the case with
 
the securities held for the accounts of
customers in bearer form or registered in “street name,”
 
and will be the responsibility of those participants.
If the depositary for any of these securities represented by
 
a registered global security is at any time
unwilling or unable to continue as depositary or ceases
 
to be a clearing agency registered under the
Exchange Act, and a successor depositary registered
 
as a clearing agency under the Securities
Exchange Act of 1934 is not appointed by us within
 
90 days, we will issue securities in definitive form in
exchange for the registered global security that had
 
been held by the depositary.
 
Any securities issued in
definitive form in exchange for a registered global security
 
will be registered in the name or names that
the depositary gives to the relevant trustee, warrant agent,
 
unit agent or other relevant agent of ours or
theirs. It is expected that the depositary’s instructions
 
will be based upon directions received by the
depositary from participants with respect to ownership of beneficial
 
interests in the registered global
security that had been held by the depositary.
 
20
PLAN OF DISTRIBUTION
We may sell the securities offered by this
 
prospectus from time to time in one or more transactions,
including, without limitation:
●
 
through underwriters or dealers;
●
 
directly to a limited number of purchasers or to a single
 
purchaser;
●
 
in “at the market offerings,” within the meaning of
 
Rule 415(a)(4) of the Securities Act, into an
existing trading market on an exchange or otherwise;
●
 
through agents; or
●
 
through any other method permitted by applicable law
 
and described in the applicable prospectus
supplement.
A distribution of the securities offered by this
 
prospectus may also be effected through the
 
issuance of
derivative securities, including, without limitation, warrants,
 
exchangeable securities, forward delivery
contracts and the writing of options.
The prospectus supplement will state the terms of the offering
 
of the securities, including:
●
 
the name or names of any underwriters, dealers or agents;
●
 
the purchase price of such securities and the proceeds
 
to be received by us, if any;
●
 
any underwriting discounts or agency fees and other items
 
constituting underwriters’ or agents’
compensation;
●
 
any public offering price;
●
 
any discounts or concessions allowed or reallowed or
 
paid to dealers; and
●
 
any securities exchanges on which the securities may be listed.
Any public offering price and any discounts or concessions
 
allowed or reallowed or paid to dealers may
be changed from time to time.
If underwriters are used in the sale, the securities will be
 
acquired by the underwriters for their own
account and may be resold from time to time in one or
 
more transactions, including:
●
 
negotiated transactions;
●
 
at a fixed public offering price or prices, which
 
may be changed;
●
 
at market prices prevailing at the time of sale;
●
 
at prices related to prevailing market prices; or
●
 
at negotiated prices.
Unless otherwise stated in a prospectus supplement, the
 
obligations of the underwriters to purchase any
securities will be conditioned on customary closing conditions
 
and the underwriters will be obligated to
purchase all of such series of securities, if any are purchased.
21
The securities may be sold through agents from time to time.
 
The prospectus supplement will name any
agent involved in the offer or sale of the securities
 
and any commissions paid to them. Generally,
 
any
agent will be acting on a best efforts basis for the
 
period of its appointment.
Sales to or through one or more underwriters or agents
 
in “at the market offerings”
 
will be made pursuant
to the terms of a distribution agreement with the underwriters
 
or agents. Such underwriters or agents may
act on an agency basis or on a principal basis. During the term
 
of any such agreement, shares may be
sold on a daily basis on any stock exchange, market or trading
 
facility on which the Class A common
stock are traded, in privately negotiated transactions or
 
otherwise as agreed with the underwriters or
agents. The distribution agreement will provide that any
 
common share sold will be sold at negotiated
prices or at prices related to the then prevailing market prices
 
for our Class A common stock. Therefore,
exact figures regarding proceeds that will be raised or
 
commissions to be paid cannot be determined at
this time and will be described in a prospectus supplement.
 
Pursuant to the terms of the distribution
agreement, we may also agree to sell, and the relevant underwriters
 
or agents may agree to solicit offers
to purchase, blocks of our securities. The terms of each
 
such distribution agreement will be described in a
prospectus supplement.
We may authorize underwriters, dealers or agents
 
to solicit offers by certain purchasers to purchase
 
the
securities 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. The contracts will be
subject only to those conditions set forth in the prospectus
 
supplement, and the prospectus supplement
will set forth any commissions paid for solicitation of these
 
contracts.
Underwriters and agents may be entitled under agreements
 
entered into with us to indemnification by us
against certain civil liabilities, including liabilities under
 
the Securities Act, or to contribution with respect to
payments which the underwriters or agents may be required
 
to make.
The prospectus supplement may also set forth whether
 
or not underwriters may over-allot or effect
transactions that stabilize, maintain or otherwise affect
 
the market price of the securities at levels above
those that might otherwise prevail in the open market,
 
including, for example, by entering stabilizing bids,
effecting syndicate covering transactions or imposing
 
penalty bids.
Underwriters and agents may be customers of, engage
 
in transactions with, or perform services for us
and our affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities
 
and will have no established trading market,
other than our Class A common stock, which are listed
 
on Nasdaq. Any underwriters to whom securities
are sold for public offering and sale may make a
 
market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making
 
at any time without notice. The securities,
other than our Class A common stock, may or may not
 
be listed on a national securities exchange.
 
22
VALIDITY OF SECURITIES
The validity of the securities covered by this prospectus
 
will be passed on for us by Davis Polk &
Wardwell LLP,
 
New York,
 
New York
 
.
 
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 Vaxxinity
 
,
 
Inc. as of December 31, 2022 and 2021, and for each
of the years in the two-year period ended December 31,
 
2022, have been incorporated by reference
herein in reliance upon the report of Armanino LLP,
 
independent registered public accounting firm,
incorporated by reference herein, and upon the authority
 
of said firm as experts in accounting and
auditing.
 
23
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
 
proxy statements and other information with the SEC.
 
The
SEC maintains a website at
www.sec.gov
 
that contains reports, proxy and information statements
 
and
other information we have filed electronically with the SEC.
The SEC allows us to “incorporate by reference” the information
 
we file with them, which means that we
can disclose important information to you by referring you
 
to those documents. The information
incorporated by reference is an important part of this prospectus,
 
and information that we file later with
the SEC will automatically update and supersede this information.
 
We incorporate by reference the
documents listed below and all documents we file pursuant
 
to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act between the date of the initial filing of the
 
registration statement of which this prospectus
forms a part and the effectiveness of such registration
 
statement and on or after the date of this
prospectus and prior to the termination of the offering
 
under this prospectus and any prospectus
supplement (other than, in each case, documents or information
 
deemed to have been furnished and not
filed in accordance with SEC rules):
(a)
 
our
(b)
 
our
 
(solely with
respect to those portions incorporated by reference
 
into our Annual Report on Form 10-K for the
year ended December 31, 2022);
(c)
 
our Quarterly Reports on Form 10-Q for the quarters ended
 
and June 30, 2023;
(d)
 
our Current Reports on Form 8-K filed with the SEC on
,
 
and
 
and
(e)
 
the description of our Class A common stock contained in
 
our
 
including any amendments or reports filed for the
purposes of updating such description.
Any statement contained in this prospectus or in any document
 
incorporated or deemed to be
incorporated by reference into this prospectus will be deemed
 
modified or superseded for the purposes of
this prospectus to the extent that a statement contained in
 
this prospectus or any subsequently filed
document which also is, or is deemed to be, incorporated by
 
reference into this prospectus modifies or
supersedes that statement. Any statement so modified or superseded
 
will not be deemed, except as so
modified or superseded, to constitute a part of this prospectus.
You can obtain
 
any of the filings incorporated by reference in this prospectus
 
through us or from the SEC
through the SEC’s website at
www.sec.gov
. Our filings with the SEC, including our Annual Reports
 
on
Form 10-K, Quarterly Reports on Form 10-Q, Current
 
Reports on Form 8-K, and exhibits incorporated in
and amendments to those reports, are also available free
 
of charge on our website (
www.vaxxinity.com
)
as soon as reasonably practicable after they are filed with,
 
or furnished to, the SEC. Information on, or
accessible through, our website is not part of this prospectus,
 
nor is such content incorporated by
reference in this prospectus, and should not be relied
 
upon in determining whether to make an investment
in our securities. You
 
can obtain any of the documents incorporated by
 
reference into this prospectus
from us without charge, excluding any exhibits to those documents
 
unless the exhibit is specifically
incorporated by reference into those documents. You
 
can obtain documents incorporated by reference
into this prospectus by requesting them in writing or by telephone
 
from us at the following address:
Investor Relations
Vaxxinity,
 
Inc.
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
 
 
 
 
vaxxs3082023p3i0
$300,000,000
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
PROSPECTUS
 
, 2023
vaxxs3082023p3i0
The information contained in this prospectus supplement
 
is not complete and may be changed.
These securities may not be sold until the registration
 
statement filed with the Securities and
Exchange Commission is effective. This prospectus
 
supplement is not an offer to sell these
securities and it is not soliciting an offer to buy these securities
 
in any jurisdiction where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED
 
August 9, 2023
PROSPECTUS SUPPLEMENT
Up to $100,000,000
Class A Common Stock
We entered into an Open Market Sale Agreement
SM
 
with Jefferies LLC (“Jefferies” or the “sales
 
agent”),
dated August 9, 2023, relating to the sale of our Class A common
 
stock,
 
par value $0.0001 per share,
offered by this prospectus supplement and the accompanying
 
prospectus (such agreement, the “sales
agreement”). In accordance with the terms of the sales
 
agreement, under this prospectus supplement, we
may offer and sell our Class A common stock having
 
an aggregate offering price of up to $100,000,000
 
from
time to time through the sales agent.
Sales of our Class A common stock, if any,
 
under this prospectus supplement will be made by any
 
method
permitted that is deemed an “at the market offering”
 
as defined in Rule 415(a)(4) under the Securities Act of
1933, as amended (the “Securities Act”). The sales agent
 
is not required to sell any specific amount, but will
act as our sales agent using commercially reasonable efforts
 
consistent with its normal trading and sales
practices. There is no arrangement for funds to be received
 
in an escrow, trust or similar
 
arrangement.
The sales agent will be entitled to compensation at a commission
 
rate of 3.0% of the gross sales price of any
Class A common stock sold under the sales agreement. In connection
 
with the sale of Class A 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 contribution to the sales agent with respect to
certain liabilities, including civil liabilities under the Securities
 
Act. See “Plan of Distribution” beginning on
page S-10 for additional information regarding the compensation
 
to be paid to the sales agent.
Our Class A common stock is listed on The Nasdaq Global
 
Market (“Nasdaq”) under the symbol “VAXX.”
 
On
August 4, 2023, the last reported sale price of our Class
 
A common stock on Nasdaq was $2.56 per share.
 
As of the date of this prospectus supplement, we are an “emerging
 
growth company” as defined under the
U.S. federal securities laws and, as such, we have elected
 
to comply with certain reduced public company
reporting requirements for this prospectus supplement
 
and the documents incorporated by reference in this
prospectus supplement.
Investing in our securities involves a high degree of
 
risk. See the “Risk Factors” section beginning
on page S-4 of this prospectus supplement and any risk
 
factors in our Securities and Exchange
Commission (“SEC”) filings that are incorporated
 
by reference in this prospectus supplement.
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.
 
Jefferies
Prospectus supplement dated
 
, 2023.
 
S-i
TABLE OF CONTENTS
Page
S-1
S-4
S-5
S-7
S-8
S-9
S-10
S-12
S-12
S-13
This document consists of two parts. The first part is
 
the accompanying prospectus, which is part of a
registration statement that we filed with the SEC using
 
a “shelf” registration process. The accompanying
prospectus provides you with a general description of the securities
 
that we may offer,
 
some of which
may not apply to this offering. The second part
 
is this prospectus supplement, which describes the
specific terms of this offering.
 
This prospectus supplement and the information incorporated
 
by reference
in this prospectus supplement add to, update and, where
 
applicable, change the information contained or
incorporated by reference in the accompanying prospectus.
Before buying any of the securities that we are offering,
 
you should carefully read both this prospectus
supplement and the accompanying prospectus with all
 
of the information incorporated by reference in this
prospectus supplement, as well as the additional information
 
described under the heading “Where You
Can Find More Information.” These documents contain important
 
information that you should consider
when making your investment decision.
 
To
 
the extent there is a conflict between the information contained
 
in this prospectus supplement, on the
one hand, and the information contained in the accompanying
 
prospectus or in any document
incorporated by reference in this prospectus supplement, on
 
the other hand, you should rely on the
information in this prospectus supplement, provided that
 
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.
The information contained in this prospectus supplement,
 
the accompanying prospectus or any document
incorporated by reference in this prospectus supplement
 
is accurate only as of their respective dates,
regardless of the time of delivery of this prospectus, the
 
accompanying prospectus or the documents
incorporated by reference in this prospectus or in the accompanying
 
prospectus or the sale of any
securities. Our business, financial condition, results of operations
 
and prospects may have changed
materially since those dates.
Neither we nor the sale agent have authorized anyone to provide
 
you with information that is different
from that contained in this prospectus supplement, the accompanying
 
prospectus, or any free writing
prospectus we may authorize to be delivered or made
 
available to you. Neither we nor the sales agent
take responsibility for, or provide
 
assurance as to the reliability of, any other information that
 
others may
give you. This prospectus supplement does not constitute an
 
offer to sell or the solicitation of an offer
 
to
buy any securities other than the securities described
 
in this prospectus supplement or an offer
 
to sell or
the solicitation of an offer to buy such securities
 
in any circumstances in which such offer
 
or solicitation is
unlawful.
Unless otherwise indicated or the context otherwise requires,
 
all references in this prospectus to
“Vaxxinity,”
 
the “Company,”
 
“we,” “us” and “our” refer to Vaxxinity,
 
Inc. and its consolidated subsidiaries.
S-1
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere
 
in this prospectus supplement or incorporated
by reference in this prospectus supplement. This summary
 
may not contain all the information that may
be important to you, and we urge you to read this entire
 
prospectus supplement and the accompanying
prospectus and the documents incorporated by reference
 
in this prospectus supplement carefully before
deciding to invest in our securities.
Our Company
We are a purpose-driven biotechnology company committed
 
to democratizing healthcare across the
globe. Our vision is to disrupt the existing treatment paradigm
 
for chronic diseases, increasingly
dominated by drugs, particularly monoclonal antibodies
 
(“mAbs”), which suffer from prohibitive costs and
cumbersome administration. We believe our synthetic
 
peptide vaccine platform (“Vaxxine
 
Platform”) has
the potential to enable a new class of therapeutics
 
that will improve the quality and convenience of care,
reduce costs and increase access to treatments for a
 
wide range of indications. Our Vaxxine
 
Platform is
designed to harness the immune system to convert the body
 
into its own “drug factory,”
 
stimulating the
production of antibodies with a therapeutic or protective
 
effect. While traditional vaccines have been
 
able
to leverage this approach against infectious diseases, they have
 
historically been unable to resolve key
challenges in the fight against chronic diseases. We
 
believe our Vaxxine
 
Platform has the potential to
overcome these challenges and has the potential to bring
 
the efficiency of vaccines to a whole new
 
class
of medical conditions. Specifically,
 
our technology is designed to use synthetic peptides to mimic
 
and
optimally combine biological epitopes in order to selectively
 
activate the immune system, producing highly
specific antibodies against only the desired targets, including
 
self-antigens, making possible the safe and
effective treatment of chronic diseases by vaccines.
 
The modular and synthetic nature of our Vaxxine
Platform generally provides significant speed and efficiency
 
in candidate development and has generated
multiple product candidates that we are designing to
 
have safety and efficacy equal to or greater than
 
the
standard-of-care treatments for many chronic diseases,
 
with more convenient administration and
meaningfully lower costs. Our current pipeline consists of five
 
chronic disease product candidates from
early to late-stage development across multiple therapeutic
 
areas, including Alzheimer’s Disease (“AD”),
Parkinson’s Disease (“PD”), migraine and hypercholesterolemia.
 
Additionally, we
 
believe our Vaxxine
Platform may be used to disrupt the treatment paradigm
 
for a wide range of other chronic diseases,
including any that are or could potentially be successfully treated
 
by mAbs. We also will opportunistically
pursue infectious disease treatments. When the COVID
 
-19 pandemic struck the world in March 2020, we
quickly reallocated resources to develop a vaccine candidate.
 
We have assembled an industry-leading
team with extensive experience developing and commercializing
 
successful drugs that is committed to
realizing our mission of democratizing healthcare.
 
Our principal executive offices are located at 505 Odyssey
 
Way,
 
Merritt Island, Florida 32953, and our
telephone number is (254) 244-5739. Our website address
 
is
www.vaxxinity.com
. Information on, or
accessible through, our website is not part of this prospectus
 
supplement, nor is such content
incorporated by reference in this prospectus supplement, and
 
should not be relied upon in determining
whether to make an investment in our securities.
Implications of Being an Emerging Growth Company
 
and a Smaller Reporting Company
We are an “emerging growth company” as defined
 
in the Jumpstart Our Business Startups Act of 2012,
as amended (the “JOBS Act”). An emerging growth company
 
may take advantage of specified
exemptions from various requirements that are otherwise
 
applicable generally to public companies in the
United States. These provisions include:
●
 
not being required to comply with the auditor attestation requirements
 
of Section 404 of the
Sarbanes–Oxley Act;
S-2
●
 
not being required to comply with any requirement that
 
may be adopted by the Public
Company Accounting Oversight Board regarding mandatory
 
audit firm rotation or a
supplement to the auditor’s report providing additional information about
 
the audit and the
financial statements;
●
 
being required to provide only two years of audited financial
 
statements in addition to any
required unaudited interim financial statements;
●
 
permitting an extended transition period for complying
 
with new or revised accounting
standards, which allows an emerging growth company to delay
 
the adoption of certain
accounting standards until those standards would otherwise
 
apply to private companies;
●
 
reduced disclosure obligations regarding executive compensation;
 
and
●
 
exemptions from the requirements of holding a nonbinding
 
advisory vote on executive
compensation and shareholder approval of any golden parachute
 
payments not previously
approved.
We have elected to take advantage of certain of the
 
reduced disclosure obligations in this prospectus
supplement and the documents incorporated by reference in
 
this prospectus supplement and may elect to
take advantage of other reduced reporting requirements
 
in future filings. In addition, we have elected to
use the extended transition period for new or revised accounting
 
standards during the period in which we
remain an emerging growth company.
 
As a result, the information that we provide to our investors
 
may be
different from the information you might receive from
 
other public reporting companies that are not
emerging growth companies in which you hold securities.
S-3
The Offering
Common Stock Offered by Us
Class A common stock having an aggregate offering
 
price of up to
$100,000,000.
Common Stock Outstanding
Before this Offering
112,823,912 shares
 
of Class A common stock and 13,874,132 shares of
Class B common stock.
Common Stock Outstanding
After this Offering
151,886,412 shares of Class A common stock and 13,874,132
 
shares of
Class B common stock, after giving effect to the assumed
 
sale by us of
$100,000,000 of Class A common stock at an assumed
 
public offering
price of $2.56 per share, which was the last reported sale
 
price of our
Class A common stock on Nasdaq on August 4, 2023.
Plan of Distribution
“At the market offering” that may be made from time
 
to time through the
sales agent. See “Plan of Distribution” on page S-4 of
 
this prospectus
supplement.
Use of Proceeds
We intend to use the net proceeds from this
 
offering, if any,
 
to advance
our existing product candidates, invest in our Vaxxine
 
Platform and new
product candidates and for general working capital, capital
 
expenditures
and other general corporate purposes. See “Use of Proceeds.”
Risk Factors
Investing in our Class A common stock involves a high
 
degree of risk.
See the “Risk Factors” section beginning on page S-4
 
of this prospectus
supplement and in the documents incorporated by reference
 
in this
prospectus supplement and the accompanying prospectus
 
for a
discussion of factors you should consider before deciding
 
to invest in our
Class A common stock.
Nasdaq Symbol
“VAXX”
Common stock outstanding before and after this offering,
 
including as discussed under “Dilution”, is
based on 112,823,912
 
shares of Class A common stock outstanding as
 
of June 30, 2023 and 13,874,132
shares of Class B common stock outstanding as of June
 
30, 2023, and excludes:
 
●
 
1,928,020 shares of Class A common stock issuable upon the
 
exercise of warrants outstanding
as of June 30, 2023, with an exercise price of $12.45 per share;
●
 
300,000 shares of Class A common stock issuable upon
 
vesting of restricted stock units
outstanding as of June 30, 2023;
●
 
16,022,171 shares of Class A common stock issuable
 
upon exercise of options outstanding as of
June 30, 2023, with a weighted-average exercise price
 
of $2.52 per share;
●
 
6,362,455 shares of Class B common stock issuable upon exercise
 
of options outstanding as of
June 30, 2023, with a weighted-average exercise price
 
of $10.07 per share;
●
 
6,079,959 shares of Class A common stock reserved for
 
future issuance under our 2021 Stock
Option and Grant Plan and 2021 Omnibus Incentive Compensation
 
Plan and our 2021 Employee
Stock Purchase Plan; and
●
 
shares of Class A common stock issuable upon the conversion
 
of Class B common stock.
S-4
RISK FACTORS
Investing in our securities involves risk. Before making
 
a decision to invest in our securities, you should
carefully consider the following risks and the risks described
 
under “Risk Factors” in our most recent
Annual Report on Form 10-K, and any updates to those
 
risk factors in our subsequent Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, together
 
with all of the other information appearing or
incorporated by reference in this prospectus supplement, in
 
light of your particular investment objectives
and financial circumstances. Although we discuss key
 
risks in our discussion of risk factors, new risks
may emerge in the future, which may prove to be significant.
 
We cannot predict future risks or estimate
the extent to which they may affect our business, results
 
of operations, financial condition and prospects.
Risks Related to this Offering
You may experience immediate and
 
substantial dilution in the book value of your investment.
If you purchase our Class A common stock in this offering,
 
you will experience immediate dilution in an
amount equal to the difference between the purchase
 
price per share and our then-net tangible book
value per share of common stock. See “Dilution.”
The actual number of shares of Class A common
 
stock we will sell under the sales agreement and
the resulting gross proceeds is uncertain.
Subject to certain limitations in the sales agreement and compliance
 
with applicable law, we
 
have the
discretion to deliver a placement notice to the sales agent at
 
any time throughout the term of the sales
agreement. The number of shares of Class A common
 
stock that are sold by the sales agent after we
deliver a placement notice will fluctuate based on the market price
 
of our Class A common stock during
the sales period and limits we set in the placement notice.
 
Because the price per share sold will fluctuate
based on the market price of our Class A common stock
 
during the sales period, it is not possible to
predict the number of shares of Class A common stock
 
that will be ultimately sold or the resulting gross
proceeds.
The Class A common stock offered in this offering
 
will be sold in “at the market offerings.”
Investors who purchase our Class A common stock in this
 
offering at different times will
 
likely
pay different prices.
Investors who purchase our Class A common stock in
 
this offering at different times will likely
 
pay
different prices, and so may experience different
 
outcomes in their investment results. We will have
discretion, subject to market demand, to vary the timing, prices
 
and numbers of shares of Class A
common stock sold, and subject to certain limitations in the
 
sales agreement, there is no minimum or
maximum sales price. Investors may experience a decline in the
 
value of their Class A common stock and
dilution as a result of sales made at prices lower than the
 
prices they paid.
We have broad discretion in the use of the net
 
proceeds from this offering, and we may not
 
use
them effectively.
 
We currently intend to use the net proceeds from
 
this offering as described in “Use of Proceeds.”
However, our board of directors
 
and our management retains broad discretion in the application
 
of the net
proceeds from this offering and could spend the
 
proceeds in ways that do not improve our results of
operations or enhance the value of our Class A common
 
stock. Our failure to apply these funds effectively
could result in financial losses, which could have a material adverse
 
effect on our business, results of
operations, financial condition and prospects.
 
S-5
SPECIAL NOTE ON FORWARD
 
-LOOKING STATEMENTS
This prospectus supplement, including the documents incorporated
 
by reference in this prospectus
supplement, contains forward-looking statements within
 
the meaning of Section 21E of the Exchange Act
and Section 27A of the Securities Act of 1933, as amended
 
(the “Securities Act”). Forward-looking
statements are neither historical facts nor assurances of future
 
performance. Instead, they are based on
our current beliefs, expectations and assumptions regarding
 
the future of our business, future plans and
strategies and other future conditions. In some cases, you
 
can identify forward-looking statements
because they contain words such as “anticipate,” “believe,” “estimate,”
 
“expect,” “intend,” “may,”
 
“predict,”
“project,” “target,” “potential,” “seek,” “will,” “would,” “could,”
 
“should,” “continue,” “contemplate,” “plan,”
other words and terms of similar meaning and the negative
 
of these words or similar terms.
All forward-looking statements speak only as of the date
 
on which they are made. Forward-looking
statements are subject to known and unknown risks
 
and uncertainties, many of which may be beyond our
control. We caution you that forward-looking statements
 
are not guarantees of future performance or
outcomes and that actual performance and outcomes
 
may differ materially from those made in or
suggested by the forward-looking statements. Factors
 
that could cause actual results and outcomes to
differ materially from those reflected in forward-looking
 
statements include, among others, the following:
the prospects of our product candidates, including the
 
progress, number, scope, cost,
 
results and timing
of data from our development activities, preclinical trials
 
and clinical trials for our product candidates or
programs, such as the target indication(s) for development or approval,
 
the size, design, population,
conduct, cost, objective or endpoints of any clinical trial,
 
or the timing for initiation or completion of or
availability of results from any clinical trial, for submission,
 
review or approval of any regulatory filing, or
for meeting with regulatory authorities; the potential benefits
 
that may be derived from any of our product
candidates; the timing of and our ability to obtain and maintain regulatory
 
approval for our existing product
candidates, any product candidates that we may develop, and
 
any related restrictions, limitations, or
warnings in the label of any approved product candidates;
 
our ability to develop and commercialize new
products and product candidates; our ability to leverage our
 
Vaxxine Platform;
 
the rate and degree of
market acceptance of our products and product candidates;
 
estimates of our addressable market and
market growth, and expectations about market trends;
 
our future operations, financial position, revenue,
costs, expenses, uses of cash,
 
including, any proceeds from this offering,
 
capital requirements, our needs
for additional financing or the period for which our existing
 
cash resources will be sufficient to meet our
operating requirements; our ability to comply with legal and regulatory
 
requirements relating to privacy,
tax, anti-corruption and other applicable laws; our ability
 
to hire and retain key personnel and to manage
our future growth effectively; our ability to access
 
capital on acceptable terms in a rising interest rate and
tighter credit environment; competitive companies and
 
technologies within our industry and our ability to
compete; our and our collaborators’, including United
 
Biomedical’s (“UBI”), ability and willingness to
obtain, maintain, defend and enforce our intellectual property protection
 
for our proprietary and
collaborative product candidates, and the scope of such protection;
 
the performance of third-party
suppliers and manufacturers and our ability to find additional
 
suppliers and manufacturers and obtain
alternative sources of raw materials; our ability and the
 
potential to successfully manufacture our product
candidates for pre-clinical use, for clinical trials and, if approved,
 
on a larger scale for commercial use; the
ability and willingness of our third-party collaborators, including
 
UBI, to continue research and
development activities relating to our product candidates
 
and our ability to attract additional collaborators
with development, regulatory and commercialization expertise;
 
general economic, political, demographic
and business conditions in the United States, Taiwan
 
and other jurisdictions where we conduct business
or clinical trials; the potential effects of government
 
regulation, including regulatory developments in the
United States and other jurisdictions; our ability to obtain additional
 
financing in future offerings or
otherwise; the effects of the Russia-Ukraine conflict
 
and the COVID-19 pandemic on business operations
and the initiation, development and operation of our clinical
 
trials, including patient enrollment of our
clinical trials; and our strategies, prospects, plans, expectations,
 
forecasts or objectives.
These factors should not be construed as exhaustive and should
 
be read in conjunction with the other
cautionary statements and information included in this prospectus
 
supplement, including our most recent
Annual Report on Form 10-K and subsequent Quarterly
 
Reports on Form 10-Q and Current Reports on
Form 8-K. New risk factors emerge from time to time, and
 
it is not possible to predict all such risk factors,
S-6
nor can we assess the impact of all such risk factors on
 
our business or the extent to which any factor or
combination of factors may cause actual results to differ
 
materially from those contained in any forward-
looking statement. Undue reliance should not be placed
 
on these forward-looking statements. We do not
undertake any obligation to make any revisions to these
 
forward-looking statements to reflect events or
circumstances after the date on which such statements
 
were made or to reflect the occurrence of
unanticipated events, except as required by law.
 
 
S-7
USE OF PROCEEDS
We may offer and sell our Class A common
 
stock having an aggregate offering price
 
of up to
$100,000,000 from time to time through the sales agent. 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.
We intend to use the net proceeds from this offering,
 
if any, to
 
advance our existing product candidates,
invest in our Vaxxine
 
Platform and new product candidates and for general working
 
capital, capital
expenditures and other general corporate purposes.
 
We may also use a portion of the net proceeds
 
to in-
license or acquire or invest in complementary technologies,
 
products, businesses or assets; however,
 
we
have no current plans, commitments or obligations to do so.
 
Our expected use of the net proceeds from
this offering represents our current intentions based
 
on our present plans and business condition, which
could change as our plans and business conditions evolve. The
 
amounts and timing of our actual use of
the net proceeds from this offering will vary depending
 
on numerous factors. As a result, we cannot
predict with certainty all of the particular uses for any net proceeds
 
to be received or the amounts that we
will actually spend on the uses set forth above. Our board
 
of directors and our management retains broad
discretion in the application of the net proceeds from this
 
offering.
Pending the use of the proceeds from this offering,
 
we intend to invest the net proceeds in a variety of
capital preservation instruments, which may include all or
 
a combination of short-term and long-term
interest-bearing instruments, investment-grade securities,
 
and direct or guaranteed obligations of the U.S.
government. We cannot predict whether the proceeds
 
invested will yield a favorable return.
 
S-8
DIVIDEND POLICY
We do not anticipate declaring or paying regular cash
 
dividends on our Class A common stock in the near
term. Any future declaration and payment of cash dividends
 
or other distributions of capital will be at the
discretion of our board of directors and will depend on
 
our financial condition, earnings, cash needs,
capital requirements (including requirements of our subsidiaries),
 
contractual, legal, tax and regulatory
restrictions, and any other factors that our board of directors
 
deems relevant in making such a
determination. Therefore, we cannot assure you that we will
 
pay any cash dividends or other distributions
to holders of our Class A common stock, or as to the amount
 
of any such cash dividends or other
distributions if and when paid.
 
S-9
DILUTION
If you purchase Class A common stock in this offering,
 
you will experience immediate dilution in an
amount equal to the difference between the purchase
 
price per share and our then-net tangible book
value per share of common stock.
 
Net tangible book value per share is determined by dividing
 
our tangible net worth (defined as total
assets, less intangible assets, less total liabilities) by the
 
number of shares of common stock outstanding.
Our historical net tangible book value as of June 30, 2023
 
was $35.0 million, or $0.28 per share. After
giving effect to the assumed sale by us of $100,000,000
 
of Class A common stock at an assumed public
offering price of $2.56 per share, which was the
 
last reported sale price of our Class A common stock
 
on
Nasdaq on August 4, 2023, and after deducting estimated commissions
 
and estimated offering expenses
payable by us, our as adjusted net tangible book value
 
as of June 30, 2023, would have been $130.7
million, or $0.79 per share, representing an immediate
 
increase in the as adjusted net tangible book value
of $0.51 per share attributable to the purchasers in this
 
offering and immediate dilution of $1.77 per share
to purchasers in this offering.
 
S-10
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies,
 
under which we may offer and sell our Class
 
A
common stock from time to time through Jefferies,
 
acting as agent. Pursuant to this prospectus
supplement and the accompanying prospectus, we may
 
offer and sell up to $100,000,000 of Class A
common stock. Sales of Class A 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 sell Class A common stock under
 
the sales agreement, we will notify Jefferies
 
of the
number of shares of Class A common stock to be sold,
 
the dates on which such sales are anticipated to
be made, any limitation on the number of shares of Class
 
A common stock 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 Class A common
stock up to the amount specified on such terms. The
 
obligations of Jefferies under the sales agreement
 
to
sell our Class A common stock are subject to a number
 
of conditions that we must meet.
The settlement of sales of Class A common stock between
 
us and Jefferies is generally anticipated to
occur on the second trading day following the date on
 
which the sale was made. Sales of Class A
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 Class A common stock. 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 $1.3 million. The remaining proceeds, after
 
deducting any other transaction fees, will equal
our net proceeds from the sale of Class A common stock
 
in this offering.
Jefferies will provide written confirmation to us before
 
the open on Nasdaq on the day following each day
on which shares of Class A common stock are sold under
 
the sales agreement. Each confirmation will
include the number of shares of Class A common stock
 
sold on that day, the
 
aggregate gross proceeds of
such sales and the proceeds to us.
In connection with the sale of Class A 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
liabilities, including civil 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 Class A common stock pursuant
 
to the sales agreement will terminate upon the earlier
 
of
(i) the sale of all Class A common stock subject to the
 
sales agreement and (ii) the termination of the
sales agreement 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
S-11
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.
 
S-12
VALIDITY OF SECURITIES
The validity of the Class A common stock covered by this
 
prospectus supplement and the accompanying
prospectus will be passed on for us by Davis Polk & Wardwell
 
LLP,
 
New York,
 
New York.
 
Jefferies LLC is
being represented in connection with this offering
 
by Cooley LLP,
 
New York,
 
New York.
EXPERTS
The consolidated financial statements of Vaxxinity,
 
Inc. as of December 31, 2022 and 2021, and for each
of the years in the two-year period ended December 31,
 
2022, have been incorporated by reference
herein in reliance upon the report of Armanino LLP,
 
independent registered public accounting firm,
incorporated by reference herein, and upon the authority
 
of said firm as experts in accounting and
auditing.
 
S-13
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
 
proxy statements and other information with the SEC. The
SEC maintains a website at
www.sec.gov
 
that contains reports, proxy and information statements
 
and
other information we have filed electronically with the SEC.
The SEC allows us to “incorporate by reference” the information
 
we file with them, which means that we
can disclose important information to you by referring you to
 
those documents. The information
incorporated by reference is an important part of this prospectus
 
supplement, and information that we file
later with the SEC will automatically update and supersede
 
this information. We incorporate by reference
the documents listed below and all documents we file pursuant
 
to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act between the date of the initial filing of the
 
registration statement of which this prospectus
supplement and the accompanying prospectus forms a part
 
and the effectiveness of such registration
statement and on or after the date of this prospectus supplement
 
and prior to the termination of the
offering under this prospectus supplement and
 
the accompanying prospectus (other than, in each case,
documents or information deemed to have been furnished
 
and not filed in accordance with SEC rules):
(a)
 
our
(b)
 
our
 
(solely with
respect to those portions incorporated by reference
 
into our Annual Report on Form 10-K for the
year ended December 31, 2022);
(c)
 
our Quarterly Reports on Form 10-Q for the quarters ended
 
and June 30, 2023;
(d)
 
our Current Reports on Form 8-K filed with the SEC on
,
 
and
; and
(e)
 
the description of our Class A common stock contained
 
in our
, including any amendments or reports filed for the
purposes of updating such description.
Any statement contained in this prospectus supplement
 
or in any document incorporated or deemed to be
incorporated by reference into this prospectus supplement will
 
be deemed modified or superseded for the
purposes of this prospectus supplement to the extent that a
 
statement contained in this prospectus
supplement or any subsequently filed document which also
 
is, or is deemed to be, incorporated by
reference into this prospectus supplement modifies or supersedes
 
that statement. Any statement so
modified or superseded will not be deemed, except as so
 
modified or superseded, to constitute a part of
this prospectus supplement.
You can obtain
 
any of the filings incorporated by reference in this prospectus
 
supplement through us or
from the SEC through the SEC’s website at
www.sec.gov
. Our filings with the SEC, including our Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q,
 
Current Reports on Form 8-K, and exhibits
incorporated in and amendments to those reports, are also available
 
free of charge on our website
(
www.vaxxinity.com
) as soon as reasonably practicable after they are
 
filed with, or furnished to, the SEC.
Information on, or accessible through, our website is not part
 
of this prospectus supplement, nor is such
content incorporated by reference in this prospectus supplement,
 
and should not be relied upon in
determining whether to make an investment in our securities.
 
You can
 
obtain any of the documents
incorporated by reference into this prospectus supplement from
 
us without charge, excluding any exhibits
to those documents unless the exhibit is specifically incorporated
 
by reference into those documents. You
can obtain documents incorporated by reference into this prospectus
 
supplement by requesting them in
writing or by telephone from us at the following address:
Investor Relations
Vaxxinity,
 
Inc.
505 Odyssey Way
S-14
Merritt Island, Florida 32953
(254) 244-5739
 
 
 
 
vaxxs3082023p3i0
VAXXINITY,
 
INC.
Up to $100,000,000
Class A Common Stock
PROSPECTUS
Jefferies
 
, 2023
 
 
 
 
 
II-1
 
PART II
INFORMATION NOT
 
REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable
 
by the Registrant in connection with the
sale of the securities being registered hereby.
Amount to Be Paid
Registration fee
 
................................................................................
 
$
 
33,060
FINRA filing fee
 
................................................................................
 
45,500
Printing expenses
 
.............................................................................
 
(1)
Legal fees and expenses .................................................................
 
(1)
Accounting fees and expenses ........................................................
 
(1)
Miscellaneous ..................................................................................
 
(1)
TOTAL
 
..........................................................................................
$
 
(1)
(1)
 
These fees and expenses depend on the securities
 
offered and the number of issuances, and
accordingly cannot be estimated at this time and will
 
be reflected in the applicable prospectus
supplement.
Item 15. Indemnification of Directors and Officers
We have entered into indemnification agreements
 
with each of our current directors and executive
officers. These agreements require us to indemnify
 
these individuals to the fullest extent permitted under
Delaware law against liabilities that may arise by reason
 
of their service to us, and to advance expenses
incurred as a result of any proceeding against them as
 
to which they could be indemnified. We also
intend to enter into indemnification agreements with our
 
future directors and executive officers.
Section 145 of the Delaware General Corporation Law
 
(the “DGCL”) provides that a corporation may
indemnify directors and officers as well as other
 
employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid
 
in settlement actually and reasonably incurred by
such person in connection with any threatened, pending or completed
 
actions, suits or proceedings in
which such person is made a party by reason of such person
 
being or having been a director,
 
officer,
employee or agent to the registrant. The DGCL provides
 
that Section 145 is not exclusive of other rights
to which those seeking indemnification may be entitled
 
under any bylaw, agreement,
 
vote of stockholders
or disinterested directors or otherwise. Our Bylaws provide
 
for indemnification by the registrant of its
directors, officers and employees to the fullest extent
 
permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide
 
in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
 
or its stockholders for monetary
damages for breach of fiduciary duty as a director,
 
except for liability (1) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (2)
 
for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
 
(3) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions or
 
(4) for any transaction from which the
director derived an improper personal benefit. Our Charter provides
 
for such limitation of liability.
We maintain standard policies of insurance under which
 
coverage is provided (a) to our directors and
officers against loss arising from claims made
 
by reason of breach of duty or other wrongful act and
 
(b) to
us with respect to payments we may make to our officers
 
and directors pursuant to the above
indemnification provision or otherwise as a matter of law.
Any underwriting agreement that we may enter into may
 
provide for indemnification of our directors and
officers by the underwriters against certain liabilities.
 
 
II-2
 
Item 16. Exhibits
 
The following exhibits are filed as part of this Registration
 
Statement:
Exhibit No.
Document
1.1*
Form of Underwriting Agreement
1.2
4.1
Amended and Restated Certificate of Incorporation of
 
Vaxxinity,
 
Inc. (
4.2
Amended and Restated Bylaws of Vaxxinity,
 
Inc. (
4.3
4.4*
Form of Note
4.5*
Form of Warrant Agreement
4.6*
Form of Subscription Rights Agreement
4.7*
Form of Unit Agreement
5.1
23.1
23.2
Consent of Davis Polk & Wardwell LLP (included
 
in
24.1
Power of Attorney (included on the signature page of the
 
Registration Statement)
25.1**
Statement of Eligibility on Form T-1
 
of the Trustee for the Indenture
107
*
 
To
 
be filed, if necessary,
 
as an exhibit to a post-effective amendment
 
to this registration statement or
as an exhibit to a Current Report on Form 8-K and incorporated
 
by reference herein.
**
 
To
 
be filed in accordance with the requirements of Section
 
305(b)(2) of the Trust Indenture Act.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales
 
are being made of securities registered hereby,
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 Securities
and Exchange Commission pursuant to Rule 424(b) if,
 
in the aggregate, the changes in
volume and price represent no more than a 20 percent
 
change in the maximum aggregate
offering price set forth in the “Calculation of
 
Registration Fee” table 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 (i), (ii) and (iii) above do not apply
 
if the information
required to be included in a post-effective amendment
 
by those paragraphs is contained
in periodic reports filed with or furnished to the Securities
 
and Exchange Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
 
Securities Exchange Act of
II-3
 
1934 that are incorporated by reference in this 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 herein, 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.
II-4
 
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.
Insofar as indemnification for liabilities arising under the
 
Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
 
pursuant to the foregoing provisions, or
otherwise, the registrants have 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 registrants will, unless in the opinion of their
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.
The undersigned registrant hereby undertakes 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 in
 
accordance
with the rules and regulations prescribed by the Securities
 
and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
 
 
 
 
 
 
 
 
 
 
 
 
 
II-5
 
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 Merritt
Island, Florida, on August 9, 2023.
Vaxxinity,
 
Inc.
By:
/s/ Mei Mei Hu
Name:
 
Mei Mei Hu
Title:
 
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each
 
person whose signature appears below
constitutes and appoints Mei Mei Hu, Louis Reese, René Paula
 
Molina and Jason Pesile and each of
them, his or her true and lawful attorneys-in-fact and agents, with
 
full power of substitution and
resubstitution, for him or her and in his or her name, place
 
and stead, in any and all capacities, to sign
any and all amendments (including post-effective
 
amendments) to this registration statement and any
 
and
all additional registration statements pursuant to Rule
 
462(b) of the Securities Act of 1933, and to file the
same, with all exhibits thereto, and all other documents
 
in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and
 
agent full power and authority to do
and perform each and every act in person, hereby ratifying and
 
confirming all that said attorneys-in-fact
and agents or any of them or his or her or their 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 on August 9, 2023
 
.
Signature
Title
/s/ Mei Mei Hu
Chief Executive Officer and Director
(principal executive officer)
Mei Mei Hu
/s/ Jason Pesile
Senior Vice President, Finance and Accounting
(principal financial officer and principal accounting
 
officer)
Jason Pesile
/s/ Louis Reese
Executive Chairman
Louis Reese
/s/ Peter Diamandis
Director
Peter Diamandis
/s/ Katherine Eade
Director
Katherine Eade
/s/ George Hornig
Director
George Hornig
/s/ Landon Ogilvie
Director
Landon Ogilvie
/s/ Peter Powchik
Director
Peter Powchik
/s/ James Smith
Director
James Smith
/s/ Gabrielle Toledano
Director
Gabrielle Toledano
 
 
 
Exhibit 1.2
OPEN MARKET SALE AGREEMENT
SM
August 9, 2023
JEFFERIES LLC
 
520 Madison Avenue
New York,
 
New York
 
10022
 
Ladies and Gentlemen:
 
Vaxxinity,
 
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 Class
 
A common stock, par value
$0.0001
 
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
” means the minimum
 
price 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 $1.00 without the
 
prior written consent of
 
the Agent, which may
 
be withheld in the
 
Agent’s
sole discretion.
_______________________________
SM “Open Market Sale Agreement” is a service mark of Jefferies LLC
 
2
 
“
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
principal executive officer or principal financial officer.
“
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
 
Stock
 
Market
 
LLC
 
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
 
second 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
” shall
 
mean 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.
 
3
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
 
(as
 
defined
 
below)
 
with
 
respect
 
to
 
which
 
the
 
Company
 
is
 
required
 
to
 
deliver
 
a
certificate pursuant to Section 4(o), and
 
(5) as of each Time
 
of Sale (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:
 
(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 offering
 
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
 
prospectus
supplement
 
relating
 
to
 
the
 
sale
 
of
 
the
 
Shares
 
and
 
constituting
 
a
 
part
 
of
 
such
 
registration
statement(s),
 
together
 
with
 
the
 
Base
 
Prospectus
 
and
 
any
 
prospectus
 
supplement
 
filed
 
with
 
the
Commission pursuant
 
to Rule
 
424(b) under
 
the Securities
 
Act relating
 
to a
 
particular offering
 
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.
 
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.
 
 
 
 
4
At the time the Registration
 
Statement was or will be
 
declared 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 Registration Statement and any
registration
 
statement
 
filed
 
pursuant
 
to
 
Rule
 
462(b)
 
under
 
the
 
Securities
 
Act
 
(“
Rule
 
462(b)
Registration Statement
”) have been
 
declared effective
 
by 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 in connection therewith, 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 its
 
Electronic Data Gathering, Analysis
and
 
Retrieval
 
system
 
(“
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
 
offering
 
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
 
the
 
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)
 
Ineligible Issuer
 
Status. The
 
Company is
 
not 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
 
 
 
 
 
5
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 or
retention where
 
required and legending,
 
and each
 
such Free Writing Prospectus,
 
as of
 
its issue date
and
 
at
 
each
 
Representation
 
Date
 
did
 
not,
 
does
 
not
 
and
 
will
 
not
 
include
 
any
 
information
 
that
conflicted,
 
conflicts
 
with
 
or
 
will
 
conflict
 
with
 
the
 
information
 
contained
 
in
 
the
 
Registration
Statement or
 
the Prospectus,
 
including any
 
document incorporated
 
by reference
 
therein.
 
Except
for the Free
 
Writing Prospectuses, 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 consent, 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 an 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
 
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 an
 
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)
 
Emerging
 
Growth
 
Company
 
Status.
 
From
 
the
 
time
 
of
 
filing
 
of
 
the
 
Registration
Statement through the date hereof, the Company has been and
 
is an “emerging growth company,”
as defined in Section 2(a) of the Securities Act (an “
Emerging Growth Company
”).
 
(g)
 
Independent
 
Accountants.
 
Armanino
 
LLP,
 
or
 
such
 
other
 
accountants
 
(the
“
Accountants
”),
 
who
 
certified
 
or
 
reviewed
 
the
 
financial
 
statements
 
and
 
supporting
 
schedules
included
 
or
 
incorporated
 
by
 
reference
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
are
independent
 
public
 
accountants
 
as
 
required
 
by
 
the
 
Securities
 
Act
 
and
 
the
 
Public
 
Company
Accounting Oversight Board.
 
(h)
 
Financial
 
Statements;
 
Non-GAAP
 
Financial
 
Measures.
 
The
 
financial
 
statements
included or
 
incorporated by
 
reference in
 
the Registration
 
Statement and
 
the Prospectus,
 
together
with
 
the
 
related schedules
 
and
 
notes
 
thereto,
 
present
 
fairly
 
in
 
all
 
material
 
respects the
 
financial
position of the Company and its combined consolidated subsidiaries at the dates
 
indicated and the
statement of
 
operations,
 
stockholders’ equity
 
and
 
cash flows
 
of
 
the Company
 
and its
 
combined
consolidated subsidiaries
 
for the
 
periods specified;
 
said financial
 
statements have
 
been prepared
 
 
 
6
in
 
conformity
 
with
 
U.S.
 
generally
 
accepted
 
accounting
 
principles
 
(“
GAAP
”)
 
applied
 
on
 
a
consistent basis throughout
 
the periods involved.
 
The supporting schedules,
 
if any,
 
present fairly
in all
 
material respects
 
in
 
accordance with
 
GAAP
 
the information
 
required to
 
be stated
 
therein.
Except as included therein,
 
no historical or pro
 
forma financial statements or
 
supporting schedules
are
 
required
 
to
 
be
 
included
 
or
 
incorporated
 
by
 
reference
 
in
 
the
 
Registration
 
Statement
 
or
 
the
Prospectus
 
under
 
the
 
Securities
 
Act.
 
The
 
interactive
 
data
 
in
 
eXtensible
 
Business
 
Reporting
Language included or
 
incorporated by reference
 
in the
 
Registration Statement fairly
 
presents the
information
 
called
 
for
 
in
 
all
 
material
 
respects
 
and
 
has
 
been
 
prepared
 
in
 
accordance
 
with
 
the
Commission’s rules and guidelines applicable thereto.
(i)
 
No Material Adverse Effect on Business.
 
Except as otherwise stated therein, since
the
 
respective
 
dates
 
as
 
of
 
which
 
information
 
is
 
given
 
in
 
the
 
Registration
 
Statement
 
or
 
the
Prospectus, (A) there has
 
been no material adverse
 
change in the condition,
 
financial or otherwise,
or
 
in
 
the
 
earnings,
 
business
 
affairs
 
or
 
business
 
prospects
 
of
 
the
 
Company
 
and
 
its
 
subsidiaries
considered as
 
one enterprise,
 
whether or
 
not arising
 
in the
 
ordinary course
 
of business (a
 
“
Material
Adverse Effect
”), (B) there have
 
been no transactions entered
 
into by the Company
 
or any of its
subsidiaries, other
 
than those
 
in the
 
ordinary course
 
of business,
 
which are
 
material with
 
respect
to
 
the
 
Company
 
and
 
its
 
subsidiaries
 
considered
 
as
 
one
 
enterprise,
 
and
 
(C)
 
there
 
has
 
been
 
no
dividend or
 
distribution of
 
any kind
 
declared, paid
 
or made
 
by the
 
Company on
 
any class
 
of its
capital stock.
 
(j)
 
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 State of Delaware and has
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; and the
 
Company is
 
duly qualified as
 
a foreign corporation
 
to
transact business and
 
is in good
 
standing in each
 
other 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 so to qualify or to be in good standing would not reasonably be expected
to result in a Material Adverse Effect.
 
(k)
 
Good Standing of
 
Subsidiaries. Each
 
“significant subsidiary”
 
of the
 
Company (as
such term is defined in Rule
 
1-02 of Regulation S-X) (each, a
 
“
subsidiary
” and, collectively,
 
the
“
subsidiaries
”) has been duly
 
organized and is validly existing
 
in good standing under
 
the laws of
the jurisdiction of
 
its incorporation or
 
organization, has
 
corporate or similar
 
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 is duly
 
qualified 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,
 
in
 
each case
 
except
 
as
 
would
 
not
 
reasonably be
expected to result in a Material
 
Adverse Effect. Except as otherwise
 
disclosed in the Registration
Statement and the
 
Prospectus, all of
 
the issued and
 
outstanding capital stock
 
of each subsidiary
 
has
been
 
duly
 
authorized
 
and
 
validly
 
issued,
 
is
 
fully
 
paid
 
and
 
non-assessable
 
and
 
is
 
owned
 
by
 
the
Company,
 
directly
 
or
 
through
 
subsidiaries,
 
free
 
and
 
clear
 
of
 
any
 
security
 
interest,
 
mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any
subsidiary
 
were
 
issued
 
in
 
violation
 
of
 
the
 
preemptive
 
or
 
similar
 
rights
 
of
 
any
 
securityholder
 
of
such subsidiary. The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to
the Company’s most recent annual report on Form 10-K.
 
 
 
 
 
 
7
(l)
 
Capitalization. The authorized,
 
issued and outstanding
 
shares of capital
 
stock of the
Company are as set forth in the Registration Statement and the Prospectus (except for subsequent
issuances, if
 
any,
 
pursuant to
 
this Agreement,
 
pursuant to
 
reservations, agreements
 
or employee
benefit
 
plans
 
referred
 
to
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
or
 
pursuant
 
to
 
the
exercise of convertible
 
securities or options
 
or warrants referred
 
to in
 
the Registration Statement
and the Prospectus) and there are no outstanding warrants, options, other convertible securities or
other rights to acquire shares
 
of Common Shares that
 
have not been disclosed
 
in the Registration
Statement and the Prospectus. The outstanding shares
 
of capital stock of the Company
 
have been
duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding
shares of capital stock of the Company were issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
 
(m)
 
Authorization of
 
Agreement. This
 
Agreement has
 
been duly
 
authorized, executed
and delivered by the Company.
 
(n)
 
Authorization and
 
Description of
 
Shares. The
 
Shares subject
 
to any
 
Issuance Notice
have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by
 
the Company
 
pursuant to
 
this Agreement
 
against payment
 
therefor,
 
will be
 
validly
issued and fully paid and non-assessable; and the
 
issuance and sale of the Shares is
 
not subject to
the preemptive
 
or other similar
 
rights to subscribe
 
for or purchase
 
the Shares. The
 
Common Shares
conform
 
in
 
all
 
material
 
respects
 
to
 
all
 
statements
 
relating
 
thereto
 
contained
 
in
 
the
 
Registration
Statement and the
 
Prospectus and such
 
description conforms in
 
all material respects
 
to the rights
set forth in the instrument defining the same.
 
(o)
 
Registration Rights.
 
There are
 
no persons
 
with registration
 
rights or
 
other similar
rights to have any securities
 
registered for sale pursuant
 
to the Registration Statement,
 
other than
those rights
 
that have
 
been disclosed
 
in the
 
Registration Statement
 
and the
 
Prospectus and
 
have
been waived.
 
(p)
 
Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is
 
(A) in
 
violation of
 
its charter,
 
by-laws or
 
similar organizational
 
document, (B)
 
in
default
 
in
 
the
 
performance
 
or
 
observance
 
of
 
any
 
obligation,
 
agreement,
 
covenant
 
or
 
condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
 
note, lease
or other agreement or instrument 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 the properties or assets of the Company
or
 
any
 
subsidiary
 
is
 
subject
 
(collectively,
 
“
Agreements
 
and
 
Instruments
”),
 
except
 
for
 
such
defaults that would
 
not, singly or
 
in the aggregate,
 
reasonably be expected to
 
result in a
 
Material
Adverse Effect,
 
or (C)
 
in violation
 
of any
 
law,
 
statute, rule,
 
regulation, judgment,
 
order,
 
writ or
decree of
 
any arbitrator,
 
court, governmental
 
body, regulatory body, administrative
 
agency or
 
other
authority,
 
body or agency
 
having jurisdiction over
 
the Company or
 
any of its
 
subsidiaries or any
of their
 
respective properties,
 
assets or
 
operations (each,
 
a “
Governmental Entity
”), except
 
for
such violations
 
that would
 
not, singly
 
or in
 
the aggregate,
 
reasonably be
 
expected to
 
result in
 
a
Material
 
Adverse
 
Effect.
 
The
 
execution,
 
delivery
 
and
 
performance
 
of
 
this
 
Agreement
 
and
 
the
issuance and
 
sale of
 
the Shares
 
subject to
 
any Issuance
 
Notice and
 
the use
 
of the
 
proceeds from
the sale of such Shares as described therein under the caption “Use of Proceeds”) and compliance
by
 
the
 
Company
 
with
 
its
 
obligations
 
hereunder
 
have
 
been
 
duly
 
authorized
 
by
 
all
 
necessary
corporate action and do
 
not and will not,
 
whether with or without
 
the giving of notice
 
or passage
 
 
 
 
8
of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any
properties or
 
assets of
 
the Company or
 
any subsidiary
 
pursuant to,
 
the Agreements
 
and Instruments
(except
 
for
 
such
 
conflicts,
 
breaches,
 
defaults
 
or
 
Repayment
 
Events
 
or
 
liens,
 
charges
 
or
encumbrances
 
that
 
would
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
Material Adverse
 
Effect), nor
 
will such
 
action result
 
in any
 
violation of
 
(i) the
 
provisions of
 
the
charter, by-laws
 
or similar organizational
 
document of the
 
Company or any
 
of its subsidiaries
 
or
(ii) any law, statute, rule, regulation, judgment, order,
 
writ or decree of any Governmental Entity,
except,
 
in
 
the
 
case
 
of
 
clause
 
(ii)
 
above,
 
for
 
such
 
violations
 
that
 
would
 
not,
 
singly
 
or
 
in
 
the
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
As
 
used
 
herein,
 
a
“
Repayment Event
” means any event or condition which gives 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.
 
(q)
 
Absence of
 
Labor Dispute.
 
Except as
 
disclosed in
 
the Registration
 
Statement and
the Prospectus, (A) no labor dispute with the employees of
 
the Company or any of its subsidiaries
exists or,
 
to the
 
knowledge of
 
the Company,
 
is imminent,
 
and (B)
 
the Company
 
is not
 
aware of
any
 
existing
 
or
 
imminent
 
labor
 
disturbance
 
by
 
the
 
employees
 
of
 
any
 
of
 
the
 
Company’s
 
or
 
any
subsidiary’s
 
principal
 
suppliers,
 
manufacturers,
 
customers
 
or
 
contractors,
 
which,
 
in
 
the
 
case
 
of
either clause
 
(A) or
 
(B), would,
 
singly or
 
in the
 
aggregate, reasonably
 
be expected
 
to result
 
in a
Material Adverse Effect.
 
(r)
 
Absence of Proceedings. Except as disclosed in the Registration Statement and the
Prospectus, there is no
 
action, suit, proceeding, inquiry
 
or investigation before or
 
brought by any
Governmental Entity now
 
pending or,
 
to the knowledge
 
of the Company,
 
threatened, against the
Company or any of its subsidiaries, that, singly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be
 
expected to materially and adversely affect
 
their respective
properties or
 
assets or
 
the consummation
 
of the
 
transactions contemplated
 
in this
 
Agreement or
the performance
 
by the
 
Company of
 
its obligations
 
hereunder; and
 
the aggregate
 
of all
 
pending
legal or governmental
 
proceedings to which
 
the Company or
 
any such subsidiary
 
is a party
 
or of
which
 
any
 
of
 
their
 
respective
 
properties
 
or
 
assets
 
is
 
the
 
subject
 
which
 
are
 
not
 
described
 
in
 
the
Registration Statement
 
and the
 
Prospectus, including
 
ordinary routine
 
litigation incidental
 
to the
business,
 
would
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
Adverse Effect.
 
(s)
 
Accuracy of
 
Exhibits. There
 
are no
 
contracts or
 
documents which
 
are required
 
to
be
 
described
 
in
 
the
 
Registration
 
Statement
 
or
 
the
 
Prospectus
 
or
 
to
 
be
 
filed
 
as
 
exhibits
 
to
 
the
Registration Statement which have not been so described and filed as required.
 
(t)
 
Absence
 
of
 
Further
 
Requirements.
 
No
 
filing
 
with,
 
or
 
authorization,
 
approval,
consent,
 
license,
 
order,
 
registration,
 
qualification
 
or
 
decree
 
of,
 
any
 
Governmental
 
Entity
 
is
necessary
 
or
 
required
 
for
 
the
 
performance
 
by
 
the
 
Company
 
of
 
its
 
obligations
 
hereunder,
 
in
connection with the offering, issuance or sale of the Shares hereunder or the consummation of
 
the
transactions contemplated by this Agreement,
 
except (A) such as
 
have been already obtained or
 
as
 
 
 
9
may be required under
 
the Securities Act, the rules
 
of the Principal Market,
 
state securities laws or
the rules of the Financial Industry Regulatory Authority (“
FINRA
”).
 
(u)
 
Possession
 
of
 
Licenses
 
and
 
Permits.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
Statement
 
and
 
the
 
Prospectus, the
 
Company
 
and its
 
subsidiaries
 
possess
 
such permits,
 
licenses,
approvals, consents and
 
other authorizations (collectively,
 
“
Governmental Licenses
”) issued by
the appropriate
 
Governmental Entities
 
necessary to
 
conduct the
 
business now
 
operated by
 
them,
except where
 
the failure
 
so to
 
possess would
 
not, singly
 
or in
 
the aggregate,
 
reasonably be
 
expected
to result
 
in a
 
Material Adverse
 
Effect. Except
 
as disclosed
 
in the
 
Registration Statement
 
and the
Prospectus, the Company
 
and its subsidiaries
 
are in compliance with
 
the terms and
 
conditions of
all
 
Governmental
 
Licenses,
 
except
 
where
 
the
 
failure
 
so
 
to
 
comply
 
would
 
not,
 
singly
 
or
 
in
 
the
aggregate, reasonably
 
be expected
 
to result
 
in a
 
Material Adverse
 
Effect.
 
Except as
 
disclosed in
the Registration Statement
 
and the Prospectus, all
 
of the Governmental
 
Licenses are valid
 
and in
full force and
 
effect, except
 
when the invalidity
 
of such Governmental
 
Licenses or the
 
failure of
such Governmental
 
Licenses to
 
be in
 
full force
 
and effect
 
would not,
 
singly or
 
in the
 
aggregate,
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
Except
 
as
 
disclosed
 
in
 
the
Registration
 
Statement
 
and the
 
Prospectus,
 
neither the
 
Company
 
nor
 
any
 
of
 
its
 
subsidiaries has
received
 
any
 
written
 
notice
 
of
 
proceedings
 
relating
 
to
 
the
 
revocation
 
or
 
modification
 
of
 
any
Governmental Licenses
 
which, singly or
 
in the
 
aggregate, if
 
the subject
 
of an
 
unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
 
(v)
 
Title
 
to
 
Property.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, the Company and its subsidiaries do not
 
own any real property and have good title
 
to
all
 
other
 
properties
 
(other
 
than
 
Intellectual
 
Property
 
(as
 
defined
 
below),
 
which
 
is
 
addressed
 
in
Section
 
1(r)
 
below)
 
owned
 
by
 
them
 
that
 
are
 
material
 
to
 
the
 
business
 
of
 
the
 
Company
 
and
 
its
subsidiaries, in each case, free
 
and clear of all
 
mortgages, pledges, liens, security interests,
 
claims,
restrictions
 
or
 
encumbrances
 
of
 
any
 
kind
 
except
 
such
 
as
 
do
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
materially affect the value of such property and do
 
not materially interfere with the use made and
proposed to
 
be made
 
of such
 
property by
 
the Company
 
or any
 
of its
 
subsidiaries; and
 
except as
disclosed in the Registration Statement
 
and the Prospectus, all
 
of the leases and
 
subleases material
to the business
 
of the Company and
 
its subsidiaries, considered as
 
one enterprise, and under
 
which
the Company or any of its subsidiaries holds properties described
 
in the Registration Statement or
the Prospectus, are in
 
full force and effect,
 
and neither the Company
 
nor any such subsidiary
 
has
received
 
any
 
written
 
notice
 
of
 
any
 
material
 
claim
 
of
 
any
 
sort
 
that
 
has
 
been
 
asserted
 
by
 
anyone
adverse
 
to
 
the
 
rights
 
of
 
the
 
Company
 
or
 
any
 
subsidiary
 
under
 
any
 
of
 
the
 
leases
 
or
 
subleases
mentioned above, or affecting
 
or questioning the rights of
 
the Company or such subsidiary
 
to the
continued possession of the leased or subleased premises under any such lease or sublease.
 
(w)
 
Possession
 
of
 
Intellectual
 
Property.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
Statement and the Prospectus, the Company and its subsidiaries own or have a valid license to, or
can acquire on reasonable terms, adequate rights to
 
all patents, patent rights, licenses, inventions,
copyrights,
 
know-how
 
(including
 
trade
 
secrets
 
and
 
other
 
unpatented
 
and/or
 
unpatentable
proprietary or confidential
 
information, systems or
 
procedures), trademarks, service
 
marks, trade
names or
 
other intellectual
 
property (collectively,
 
“
Intellectual Property
”) used
 
in or
 
necessary
to carry on the business now operated by them.
 
Except as disclosed in the Registration Statement
and the
 
Prospectus, neither the
 
Company nor any
 
of its subsidiaries
 
has received any
 
written notice
or is otherwise aware of any infringement of or conflict with asserted
 
rights of others with respect
 
 
10
to
 
any
 
Intellectual
 
Property
 
or
 
of
 
any
 
facts
 
or
 
circumstances
 
which
 
would
 
render
 
any
 
of
 
their
Intellectual
 
Property
 
invalid
 
or
 
inadequate
 
to
 
protect
 
the
 
interest
 
of
 
the
 
Company
 
or
 
any
 
of
 
its
subsidiaries therein, nor does the operation of the
 
Company’s or its
 
subsidiaries’ business as now
operated by them
 
infringe or conflict
 
with the Intellectual
 
Property of others,
 
in each case
 
which
infringement or conflict (if
 
the subject of any
 
unfavorable decision, ruling or finding)
 
or invalidity
or inadequacy,
 
singly
 
or
 
in the
 
aggregate,
 
would reasonably
 
be
 
expected
 
to result
 
in a
 
Material
Adverse Effect.
 
(x)
 
Environmental
 
Laws.
 
Except
 
as
 
described
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus or would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (A) 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,
 
asbestos-containing
 
materials
 
or
 
mold
(collectively,
 
“
Hazardous
 
Materials
”)
 
or
 
to
 
the
 
manufacture,
 
processing,
 
distribution,
 
use,
treatment,
 
storage,
 
disposal,
 
transport
 
or
 
handling
 
of
 
Hazardous
 
Materials
 
(collectively,
“
Environmental
 
Laws
”), (B)
 
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,
 
(C)
 
there
 
are
 
no
 
pending
 
or,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
threatened
administrative, regulatory or
 
judicial actions, suits,
 
demands, demand letters,
 
claims, liens, notices
of noncompliance or
 
violation, investigations
 
or proceedings relating
 
to any
 
Environmental Law
or Hazardous Materials
 
against the Company
 
or any of its
 
subsidiaries and (D) to
 
the knowledge
of the Company,
 
there are no events or circumstances that
 
would 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 Entity, against or affecting
 
the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
 
(y)
 
Accounting
 
Controls.
 
The
 
Company
 
maintains
 
a
 
system
 
of
 
internal
 
control
 
over
financial
 
reporting
 
(as
 
defined
 
under
 
Rule
 
13-a15
 
and
 
15d-15
 
under
 
the
 
Exchange
 
Act)
 
and
 
a
system
 
of
 
internal
 
accounting
 
controls
 
sufficient
 
to
 
provide
 
reasonable
 
assurances
 
that
 
(A)
transactions are executed in accordance with management’s general or specific
 
authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in
 
conformity
with
 
GAAP
 
and
 
to
 
maintain
 
accountability
 
for
 
assets;
 
(C)
 
access
 
to
 
assets
 
is
 
permitted
 
only
 
in
accordance with management’s
 
general or specific authorization; (D)
 
the recorded accountability
for
 
assets
 
is
 
compared
 
with
 
the
 
existing
 
assets
 
at
 
reasonable
 
intervals
 
and
 
appropriate
 
action
 
is
taken with
 
respect to
 
any differences; and
 
(E) 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. Except as described in
 
the Registration
Statement
 
and
 
the
 
Prospectus,
 
since
 
the
 
end
 
of
 
the
 
Company’s
 
most
 
recent
 
audited
 
fiscal
 
year,
there has been
 
(1) no material
 
weakness in the
 
Company’s internal control over financial
 
reporting
(whether or
 
not remediated)
 
and (2)
 
no change
 
in the
 
Company’s
 
internal control
 
over financial
 
 
 
 
11
reporting that has
 
materially affected,
 
or is reasonably
 
likely to materially
 
affect, the Company’s
internal control over financial reporting.
 
(z)
 
Compliance with
 
the Sarbanes-Oxley
 
Act.
 
The Company
 
has taken
 
all necessary
actions to ensure that it is in compliance in all material respects with the Sarbanes-Oxley Act that
are in effect, and only to the extent that such
 
provisions are applicable to the Company as of such
time.
 
(aa)
 
Payment
 
of
 
Taxes.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, all income tax returns of the Company and its subsidiaries required by law
 
to be filed
by
 
the
 
Company
 
and
 
its
 
subsidiaries
 
have
 
been
 
filed
 
and
 
are
 
true,
 
correct
 
and
 
complete
 
in
 
all
material respects and all taxes,
 
interest, penalties or additional amounts
 
shown by such returns or
otherwise assessed
 
(whether imposed
 
directly or
 
through withholding),
 
which are
 
due and
 
payable,
have been
 
paid, except
 
assessments against
 
which appeals
 
have been
 
or will
 
be promptly
 
taken,
are being contested in
 
good faith and as
 
to which adequate reserves
 
have been provided. Except as
disclosed in the Registration Statement
 
and the Prospectus, the Company and
 
its subsidiaries have
filed all
 
other tax
 
returns that
 
are required
 
to have
 
been filed
 
by them
 
pursuant to
 
applicable tax
law, and
 
all such tax returns are true, correct
 
and complete in all material respects, except
 
insofar
as the failure to file such returns
 
would not reasonably be expected to result in a
 
Material Adverse
Effect. Except as disclosed in the Registration Statement and the
 
Prospectus, the Company and its
subsidiaries
 
have
 
paid
 
all
 
taxes
 
shown
 
as
 
due
 
pursuant
 
to
 
such
 
returns
 
or
 
pursuant
 
to
 
any
assessment received
 
by the
 
Company and
 
its subsidiaries,
 
except for
 
such taxes,
 
if any, as are
 
being
contested in good faith and as to which adequate reserves have been established by the Company,
or except insofar
 
as the failure
 
to pay such
 
taxes would
 
not reasonably be
 
expected to result
 
in a
Material
 
Adverse
 
Effect.
 
The
 
charges,
 
accruals
 
and
 
reserves
 
on
 
the
 
books
 
of
 
the
 
Company
 
in
respect
 
of
 
any
 
income
 
and
 
corporation
 
tax
 
liability
 
for
 
any
 
years
 
not
 
finally
 
determined
 
are
adequate to
 
meet
 
any
 
assessments
 
or re-assessments
 
for
 
additional tax
 
for
 
any
 
years not
 
finally
determined, except to
 
the extent of
 
any inadequacy that
 
would not reasonably
 
be expected to
 
result
in a Material Adverse Effect.
 
(bb)
 
Insurance.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
the Company and its subsidiaries carry
 
or are entitled to the benefits of insurance,
 
with financially
sound and reputable
 
insurers, in such
 
amounts and covering
 
such risks as
 
the Company reasonably
believes is adequate to conduct its business and the business of its subsidiaries as described in the
Registration Statement and the Prospectus, and all
 
such insurance is in full force
 
and effect except
where
 
the
 
failure
 
to
 
carry
 
such
 
insurance
 
or
 
have
 
such
 
insurance
 
be
 
in
 
full
 
effect
 
would
 
not
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
Except
 
as
 
disclosed
 
in
 
the
Registration Statement and the Prospectus, the Company has no reason to believe that it or any of
its
 
subsidiaries
 
will
 
not be
 
able
 
(A)
 
to
 
renew
 
its
 
existing
 
insurance coverage
 
as
 
and
 
when
 
such
policies expire or
 
(B) to obtain comparable
 
coverage from similar institutions
 
as may be
 
necessary
or
 
appropriate
 
to
 
conduct
 
its
 
business
 
as
 
presently
 
conducted
 
and
 
at
 
a
 
cost
 
that
 
would
 
not
reasonably be expected to result in a Material Adverse Effect.
 
(cc)
 
Investment Company Act.
 
The Company is
 
not required,
 
and upon
 
the issuance and
sale
 
of
 
the
 
Shares
 
as
 
herein
 
contemplated
 
and
 
the
 
application
 
of
 
the
 
net
 
proceeds
 
therefrom
 
as
described in the Prospectus will
 
not be required, to register
 
as an “investment company” under
 
the
Investment Company Act of 1940, as amended (the “
Investment Company Act”).
 
 
 
 
12
(dd)
 
Absence of Manipulation. Neither the Company nor any controlled Affiliate of the
Company has taken, nor will
 
the Company or any controlled
 
Affiliate take, directly or
 
indirectly,
any
 
action
 
which
 
is
 
designed,
 
or
 
would
 
reasonably
 
be
 
expected, to
 
cause
 
or
 
result
 
in,
 
or
 
which
constitutes,
 
the
 
stabilization
 
or
 
manipulation
 
of
 
the
 
price
 
of
 
any
 
security
 
of
 
the
 
Company
 
to
facilitate the
 
sale or
 
resale of
 
the Shares
 
or result
 
in a
 
violation of
 
Regulation M
 
under the
 
Exchange
Act.
 
(ee)
 
Anti-Corruption
 
and
 
Anti-Bribery
 
Laws.
 
None
 
of
 
the
 
Company,
 
any
 
of
 
its
subsidiaries
 
nor,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
any
 
director,
 
officer,
 
agent,
 
employee,
controlled Affiliate
 
or other person
 
acting on
 
behalf of the
 
Company or
 
any of its
 
subsidiaries is
aware of
 
or has
 
taken
 
any action,
 
directly or
 
indirectly,
 
that would
 
result
 
in a
 
violation by
 
such
persons of the Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and
similar
 
laws
 
of
 
other
 
jurisdictions
 
where
 
the
 
Company
 
conducts
 
business
 
(collectively,
 
“
Anti-
Corruption Laws
”), including,
 
without limitation, making
 
an offer,
 
payment, promise
 
to pay or
authorization
 
of
 
the
 
payment
 
of
 
any
 
money,
 
or
 
other
 
property,
 
gift,
 
promise
 
to
 
give,
 
or
authorization of the
 
giving of anything
 
of value to
 
any government official
 
or any political
 
party
or official thereof or
 
any candidate for political
 
office, in contravention of
 
Anti-Corruption Laws
and the Company and, to the knowledge of the Company, its controlled Affiliates have conducted
their
 
businesses
 
in
 
compliance
 
with
 
Anti-Corruption
 
Laws
 
and
 
have
 
instituted
 
and
 
maintain
policies
 
and
 
procedures
 
designed
 
to
 
ensure,
 
and
 
which
 
are
 
reasonably
 
expected
 
to
 
continue
 
to
ensure,
 
continued
 
compliance
 
therewith.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
 
Registration
Statement and the
 
Prospectus, neither the
 
Company nor any
 
of its subsidiaries
 
nor, to
 
the best of
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
 
law
 
or
 
of
 
the
 
character
 
required
 
to
 
be
 
disclosed
 
in
 
the
 
Registration
Statement and the Prospectus.
(ff)
 
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 jurisdictions
 
where the
 
Company and
 
its subsidiaries
conduct business, the rules and
 
regulations thereunder and any related
 
or similar rules, regulations
or
 
guidelines,
 
issued,
 
administered
 
or
 
enforced
 
by
 
any
 
Governmental
 
Entity
 
(collectively,
 
the
“
Money Laundering
 
Laws
”); and no
 
action, suit
 
or proceeding by
 
or before any
 
Governmental
Entity
 
involving
 
the
 
Company or
 
any
 
of
 
its
 
subsidiaries
 
with
 
respect
 
to
 
the
 
Money
 
Laundering
Laws is pending or, to the knowledge of the Company,
 
threatened.
 
(gg)
 
OFAC.
 
None of the Company,
 
any of its subsidiaries nor,
 
to the knowledge of the
Company,
 
any
 
director,
 
officer,
 
agent,
 
employee,
 
controlled
 
Affiliate
 
or
 
representative
 
of
 
the
Company or
 
any of
 
its subsidiaries
 
is an
 
individual or
 
entity (“
Person
”) currently
 
the subject
 
or
target
 
of
 
any
 
sanctions
 
administered
 
or
 
enforced
 
by
 
the
 
United
 
States
 
Government,
 
including,
without
 
limitation,
 
the
 
U.S.
 
Department
 
of
 
the
 
Treasury’s
 
Office
 
of
 
Foreign
 
Assets
 
Control
(“
OFAC
”), the United
 
Nations Security Council
 
(“
UNSC
”), the European
 
Union, His
 
Majesty’s
Treasury
 
(“
HMT
”), or
 
other
 
relevant
 
sanctions
 
authority
 
(collectively,
 
“
Sanctions
”), nor
 
is
 
the
Company located,
 
organized or
 
resident in
 
a country
 
or territory
 
that is
 
the subject
 
of Sanctions;
and the Company will not directly or indirectly use the proceeds of the sale
 
of the Shares, or lend,
contribute or otherwise make
 
available such proceeds to any
 
subsidiaries, joint venture partners or
 
 
 
 
13
other Person, to fund any
 
activities of or business
 
with any Person, or in
 
any country or territory,
that, at the time of such funding, is the subject 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
underwriter, advisor, investor or otherwise) of Sanctions.
 
(hh)
 
Lending
 
Relationship
.
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus,
 
the
 
Company
 
(i)
 
does
 
not
 
have
 
any
 
material
 
lending
 
or
 
other
 
relationship
 
with
 
any
bank or lending Affiliate of the Agent and (ii) does not intend to use any of the proceeds from the
sale of the Shares to repay any outstanding debt owed to any Affiliate of the Agent.
 
(ii)
 
Statistical
 
and
 
Market-Related
 
Data.
 
Any
 
statistical
 
and
 
market-related
 
data
included 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
 
and,
 
to
 
the
 
extent
required, the Company has obtained
 
the written consent to the use
 
of such data from such
 
sources.
 
(jj)
 
Cybersecurity.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, there
 
has been
 
no security
 
breach or
 
incident, unauthorized
 
access or
 
disclosure, or
other compromise of or relating to the Company’s or its subsidiaries’ information technology and
computer
 
systems,
 
networks,
 
hardware,
 
software,
 
data
 
and
 
databases
 
(including
 
the
 
data
 
and
information of their respective customers, employees,
 
suppliers, vendors and any third
 
party data
maintained, processed or stored by
 
the Company and its subsidiaries, and
 
any such data processed
or stored by third parties on behalf
 
of the Company and its subsidiaries), equipment
 
or technology
(collectively,
 
“
IT
 
Systems
 
and
 
Data
”),
 
except
 
as
 
has
 
not
 
resulted
 
in
 
material
 
liability
 
to
 
the
Company.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
neither
 
the
Company nor
 
its subsidiaries
 
have been
 
notified in
 
writing of,
 
and each
 
of them
 
have no
 
knowledge
of
 
any
 
event
 
or
 
condition
 
that
 
would
 
reasonably
 
be
 
expected
 
to
 
result
 
in,
 
any
 
material
 
security
breach or incident, unauthorized
 
access or disclosure or
 
other compromise to their IT
 
Systems and
Data. Except as disclosed
 
in the Registration
 
Statement and the Prospectus,
 
the Company and
 
its
subsidiaries
 
have
 
implemented
 
appropriate
 
controls,
 
policies,
 
procedures
 
and
 
technological
safeguards intended
 
to maintain
 
and protect
 
the integrity,
 
continuous operation,
 
redundancy and
security of their IT Systems and Data reasonably consistent with industry
 
standards and practices,
or as
 
required by
 
applicable regulatory
 
standards. Except
 
as disclosed
 
in the
 
Registration Statement
and the Prospectus, and except as would not,
 
singly or in the aggregate, reasonably be expected
 
to
result in a Material Adverse Effect, the Company
 
and its subsidiaries are presently in compliance
with all applicable laws or statutes and all
 
judgments, orders, rules and regulations of any court or
arbitrator
 
or
 
governmental
 
or
 
regulatory
 
authority,
 
internal
 
policies
 
and
 
contractual
 
obligations
relating to
 
the privacy
 
and security
 
of IT
 
Systems and
 
Data and
 
to the
 
protection of
 
such IT
 
Systems
and Data from unauthorized use, access, misappropriation or modification.
 
(kk)
 
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
 
the
 
Principal
Market is contemplating terminating such
 
registration or listing.
 
To the Company’s knowledge, it
is in material compliance with all applicable listing requirements of the Principal Market.
 
 
 
 
 
14
(ll)
 
FINRA Matters.
 
All of the information provided to the Agent or
 
to counsel for the
Agent by the Company in connection
 
with the offering of the Shares is
 
true, complete, correct and
compliant with
 
FINRA 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.
(mm)
 
ERISA Compliance.
 
Except as
 
otherwise disclosed
 
in the
 
Prospectus, 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
 
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
(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.
 
Except as otherwise
 
disclosed in the
 
Registration Statement and
 
the Prospectus,
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).
 
Except as
 
otherwise disclosed
 
in the
Registration Statement and
 
the Prospectus and
 
except as would
 
not have a
 
Material Adverse
 
Effect
on the Company
 
and its subsidiaries,
 
taken as a
 
whole, neither the
 
Company,
 
its subsidiaries nor
any of
 
their ERISA
 
Affiliates
 
has incurred
 
or reasonably
 
expects to
 
incur any
 
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.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
Registration Statement and
 
the Prospectus and
 
except as would
 
not have a
 
Material Adverse
 
Effect
on the Company and
 
its subsidiaries, taken as
 
a whole, 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
 
nothing has
 
occurred, whether
by action or failure to act, which would cause the loss of such qualification.
(nn)
 
Brokers.
 
Except as otherwise
 
disclosed in 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.
(oo)
 
Dividend Restrictions.
 
Except as disclosed in the Prospectus,
 
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.
(pp)
 
Clinical
 
Data and
 
Regulatory
 
Compliance.
 
Except
 
as
 
otherwise disclosed
 
in
 
the
Registration Statement
 
and the
 
Prospectus, and
 
except as
 
would not
 
have a
 
Material Adverse
 
Effect
on the Company
 
and its subsidiaries,
 
taken as a
 
whole, (i) the
 
pre-clinical studies and clinical
 
trials
conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or
its subsidiaries or in which
 
the Company or its subsidiaries
 
have participated, that are described
 
in
 
 
15
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
or
 
the
 
results
 
of
 
which
 
are
 
referred
 
to
 
in
 
the
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
as
 
applicable,
 
were,
 
and
 
if
 
still
 
pending
 
are,
 
being
conducted in all material
 
respects in accordance with the
 
protocols submitted to the
 
U.S. Food and
Drug Administration (the “
FDA
”) and other applicable
 
regulatory authorities (including, without
limitation,
 
any
 
foreign,
 
federal,
 
state
 
or
 
local
 
governmental
 
or
 
regulatory
 
authority
 
performing
functions similar
 
to those
 
performed by
 
the FDA)
 
(collectively,
 
the “
Regulatory Authorities
”),
the
 
applicable
 
rules
 
and
 
regulations
 
of
 
the
 
Regulatory
 
Authorities,
 
and
 
current
 
Good
 
Clinical
Practices and
 
Good Laboratory
 
Practices; (ii)
 
the descriptions
 
in the
 
Registration Statement
 
and
the Prospectus
 
of the
 
results of
 
such studies
 
and trials
 
are accurate
 
in all
 
material respects
 
and fairly
present in all material respects the data
 
derived therefrom; (iii) the Company has no knowledge
 
of
any other
 
studies or
 
trials not
 
described in
 
the Registration
 
Statement and
 
the Prospectus,
 
the results
of which
 
call into
 
question the
 
results described
 
or referred
 
to in
 
the Registration
 
Statement and
the Prospectus; (iv) the Company
 
and its subsidiaries have operated at
 
all times and are currently
in
 
material
 
compliance
 
with
 
all
 
applicable
 
statutes,
 
rules
 
and
 
regulations
 
of
 
the
 
Regulatory
Authorities;
 
and
 
(v)
 
neither
 
the
 
Company
 
nor
 
any
 
of
 
its
 
subsidiaries
 
have
 
received
 
any
 
written
notices,
 
correspondence
 
or
 
other
 
communications
 
from
 
the
 
Regulatory
 
Authorities
 
or
 
any
 
other
governmental
 
agency
 
requiring
 
the
 
termination,
 
modification
 
or
 
suspension
 
of
 
any
 
pre-clinical
studies or clinical trials that are described
 
in the Registration Statement and the Prospectus
 
or the
results
 
of
 
which
 
are
 
referred
 
to
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
other
 
than
ordinary course communications with
 
respect to modifications in
 
connection with the design
 
and
implementation
 
of
 
such
 
studies
 
or
 
trials,
 
and,
 
to
 
the
 
Company’s
 
best
 
knowledge,
 
there
 
are
 
no
reasonable grounds for the same.
(qq)
 
Duties, Transfer Taxes,
 
Etc.
 
No stamp or other issuance or transfer taxes or duties
and no
 
capital gains,
 
income, withholding
 
or other
 
taxes are
 
payable by
 
the Agent
 
in the
 
United
States
 
or
 
any
 
political
 
subdivision
 
or
 
taxing
 
authority
 
thereof
 
or
 
therein
 
in
 
connection
 
with
 
the
execution, delivery or performance of this Agreement
 
by the Company or the sale
 
and delivery by
the Company of the Shares.
(rr)
 
Compliance
 
with
 
Health
 
Care
 
Laws.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
Registration Statement
 
or the
 
Prospectus and
 
except as
 
would be
 
reasonably expected
 
to have
 
a
Material Adverse Effect on the Company and its subsidiaries, taken as a whole, the Company and
its
 
subsidiaries
 
are,
 
and
 
at
 
all
 
times
 
have
 
been,
 
in
 
compliance
 
with
 
all
 
applicable
 
Health
 
Care
Laws.
 
For purposes of this Agreement, “
Health Care Laws
” means: (i) the Federal Food, Drug,
and Cosmetic Act (21 U.S.C.
 
§§ 301 et seq.), the Public
 
Health Service Act (42 U.S.C. §§
 
201 et
seq.); (ii) all applicable federal, state, local and all
 
applicable foreign health care related fraud and
abuse
 
laws,
 
including,
 
without
 
limitation,
 
the
 
U.S.
 
Anti-Kickback
 
Statute
 
(42
 
U.S.C.
 
§
 
1320a-
7b(b)), the
 
U.S. False
 
Statements Law
 
(42 U.S.C.
 
§ 1320a-7b(a)),
 
the Civil
 
Monetary Penalties
Law (42
 
U.S.C. §1320a-7a),
 
the U.S.
 
Civil False
 
Claims Act
 
(31 U.S.C.
 
§ 3729
 
et seq.),
 
all criminal
laws relating
 
to health care
 
fraud and abuse,
 
including but not
 
limited to 18
 
U.S.C. §§ 286
 
and 287,
and
 
the
 
health
 
care
 
fraud
 
criminal
 
provisions
 
under
 
the
 
U.S.
 
Health
 
Insurance
 
Portability
 
and
Accountability
 
Act
 
of
 
1996
 
(“
HIPAA
”)
 
(42
 
U.S.C.
 
§§
 
1320d
 
et
 
seq.),
 
the
 
Physician
 
Payments
Sunshine Act
 
(42 U.S.C.
 
§ 1320a-7h),
 
the exclusion
 
law (42
 
U.S.C. §1320a-7);
 
(iii) HIPAA,
 
as
amended by the Health Information
 
Technology for Economic and Clinical Health Act (42
 
U.S.C.
§§ 17921 et seq.); (iv) regulations
 
promulgated pursuant to such statutes; and
 
(v) any and all other
applicable federal,
 
state, or
 
foreign health
 
care laws
 
and regulation
 
applicable to
 
the ownership,
testing,
 
development,
 
manufacture,
 
packaging,
 
processing,
 
use,
 
distribution,
 
marketing,
 
 
 
 
16
advertising,
 
labeling,
 
promotion,
 
sale,
 
offer
 
for
 
sale,
 
storage,
 
import,
 
export
 
or
 
disposal
 
of
 
any
product manufactured
 
or distributed
 
by the
 
Company.
 
Neither the
 
Company nor
 
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
 
it
 
is
 
in
 
violation
 
of
 
any
 
Health
 
Care
 
Laws,
 
and,
 
to
 
the
Company’s
 
knowledge,
 
no
 
such
 
claim,
 
action,
 
suit,
 
proceeding,
 
hearing,
 
enforcement,
investigation, arbitration or
 
other action is
 
threatened.
 
Neither the Company
 
nor its subsidiaries,
nor their
 
respective officers, directors,
 
employees, contractors
 
or agents, 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
 
nor any
 
of its
 
employees, officers,
 
directors, contractors
 
or agents,
 
nor its
 
subsidiaries
or any of the subsidiary’s employees, officers, directors, contractors or agents, has been excluded,
suspended or
 
debarred from
 
participation in
 
any U.S.
 
federal health
 
care program
 
(as defined
 
in
42
 
U.S.C.
 
§
 
1320a-7b(f))
 
or
 
human
 
clinical
 
research
 
or,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
is
subject
 
to
 
a
 
governmental
 
inquiry,
 
investigation,
 
proceeding,
 
or
 
other
 
similar
 
action
 
that
 
could
reasonably be expected to
 
result in such
 
debarment, suspension, or
 
exclusion. The Company
 
and
its
 
subsidiaries
 
have
 
filed,
 
obtained,
 
maintained
 
or
 
submitted
 
all
 
material
 
reports,
 
documents,
forms,
 
notices,
 
applications,
 
records,
 
claims,
 
submissions
 
and
 
supplements
 
or
 
amendments
 
as
required by
 
the Health
 
Care Laws,
 
and all
 
such reports,
 
documents, forms,
 
notices, applications,
records, claims, submissions
 
and supplements
 
or amendments
 
were timely, complete, accurate
 
and
not misleading
 
on the date
 
filed in all
 
material respects
 
(or were corrected
 
or supplemented by
 
a
subsequent submission).
(ss)
 
Forward-Looking Statements.
 
No forward-looking
 
statement (within
 
the meaning
of Section 27A
 
of the Securities
 
Act and Section
 
21E of the
 
Exchange Act) (a
 
“
Forward-Looking
Statement
”)
 
contained
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
has
 
been
 
made
 
or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(tt)
 
Other 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 offering or
sale 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.
 
OFFER 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
 
 
 
 
 
 
 
 
 
 
17
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
 
a
sale 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
 
sold
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
 
Trading
 
Day
next 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 sale of
 
Shares will be settled
 
on the applicable
 
Settlement
Date
 
for
 
such
 
sale
 
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
 
 
 
 
 
 
 
 
18
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
(other than as a
 
result of the failure by
 
the Agent to perform
 
its obligations under this Agreement),
the Company
 
agrees that
 
it will
 
hold the
 
Agent harmless
 
against any
 
loss, claim,
 
damage or
 
expense
(including, without
 
limitation, penalties,
 
interest
 
and reasonable
 
and documented
 
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.
(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
 
 
 
 
 
 
19
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; and (ix) 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 the 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
 
relating
 
to
 
the
 
Registration
 
 
 
 
 
 
 
20
Statement or the
 
Prospectus; (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 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 (including
by filing a document incorporated by reference
 
therein) 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,
 
be
 
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).
(d)
 
Agent’s Review of Proposed Amendments and
 
Supplements.
 
Prior to amending or
supplementing the Registration
 
Statement (including any
 
Rule 462(b) Registration
 
Statement) or
the Prospectus (excluding
 
any amendment or
 
supplement through incorporation of
 
any report filed
under the Exchange Act),
 
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,
 
but
 
only
 
insofar
 
as
 
such
 
proposed
 
amendment
 
or
 
supplement
 
relates
 
to
 
the
transactions
 
contemplated
 
hereby,
 
and
 
the
 
Company
 
shall
 
not
 
file
 
or
 
use
 
any
 
such
 
proposed
amendment
 
or
 
supplement
 
without
 
the
 
Agent’s
 
prior
 
consent,
 
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
 
 
 
21
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 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,
 
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,
 
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
 
 
 
22
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,
 
including
 
by
 
filing
 
a
 
document
 
incorporated
 
by
 
reference
therein;
 
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 practicable.
(j)
 
Earnings
 
Statement.
 
As
 
soon
 
as
 
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;
 
provided
 
that
 
the
 
Company
 
shall
 
be
deemed to have furnished such
 
statements to its security holders
 
and the Agent to the
 
extent they
are filed on the Commission’s EDGAR system or any successor to such system.
(k)
 
Listing;
 
Reservation
 
of
 
Shares.
 
(a)
 
The
 
Company
 
will
 
use
 
commercially
reasonable
 
efforts
 
to
 
maintain
 
the
 
listing
 
of
 
the
 
Shares
 
on
 
the
 
Principal
 
Market;
 
and
 
(b)
 
the
Company will
 
reserve and keep
 
available during each
 
period beginning
 
on the first
 
Trading Day
of the selling
 
period indicated in
 
each Issuance Notice
 
and ending on
 
the second Trading Day after
the earlier
 
of (i) the
 
last Trading Day
 
of the
 
applicable selling period
 
and (ii)
 
the date
 
the applicable
Issuance
 
Notice
 
is
 
canceled,
 
free
 
of
 
preemptive
 
rights,
 
Shares
 
for
 
the
 
purpose
 
of
 
enabling
 
the
Company to satisfy its obligations under the respective Issuance Notice.
 
 
 
 
 
23
(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 Shares 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 attached as Exhibit B
 
hereto,
 
modified, as necessary,
 
to relate
 
 
 
 
 
 
 
 
24
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, a
 
negative assurance
 
letter and
 
the written
 
legal opinion
 
of Davis
 
Polk &
 
Wardwell
LLP,
 
counsel
 
to
 
the
 
Company,
 
and
 
the
 
written
 
legal
 
opinion
 
of
 
Locke
 
Lord
 
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
 
the
 
Accountants,
 
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 the
 
Triggering Event
Date filing 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.
 
The Company
 
shall be
 
required to
 
furnish no
 
more than
 
 
 
 
 
 
25
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, and excluding the
 
date of
this Agreement,
 
the Company shall furnish
 
the Agent a certificate
 
executed by the
 
Secretary of the
Company,
 
signing in
 
such capacity,
 
dated the
 
date of
 
delivery in
 
the form
 
attached as
 
Exhibit C
hereto
 
(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 use commercially
 
reasonable efforts to
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 use commercially reasonable
 
efforts to 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
 
 
 
 
 
 
 
 
 
 
26
hereunder and
 
ending on
 
the third
 
Trading Day
 
immediately following
 
the Settlement
 
Date with
respect to
 
Shares sold
 
pursuant to
 
such Issuance
 
Notice; and
 
will not
 
directly or
 
indirectly enter
into any other
 
“at the market” or
 
continuous equity transaction to
 
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 the
 
applicable rules
of the Principal Market or
 
other compensation plan of the
 
Company or its subsidiaries, as
 
in effect
on the
 
date of
 
this Agreement
 
or subsequently
 
disclosed in
 
filings by
 
the Company
 
available on
EDGAR,
 
(ii)
 
issuance
 
or
 
sale
 
of
 
Common
 
Shares
 
issuable
 
upon
 
exchange,
 
conversion
 
or
redemption of securities or the exercise or
 
vesting of warrants, options or securities outstanding at
the
 
date
 
of
 
this
 
Agreement
 
or
 
subsequently
 
disclosed
 
in
 
filings
 
by
 
the
 
Company
 
available
 
on
EDGAR,
 
(iii)
 
modification
 
of
 
any
 
outstanding
 
options,
 
warrants
 
of
 
any
 
rights
 
to
 
purchase
 
or
acquire
 
Common
 
Shares,
 
and
 
(iv)
 
issuance
 
or
 
sale
 
of
 
Common
 
Shares
 
in
 
connection
 
with
 
an
acquisition, joint venture, commercial
 
or collaborative relationship or the
 
acquisition or license by
the
 
Company
 
of
 
the
 
securities,
 
business,
 
property
 
or
 
other
 
assets
 
of
 
another
 
person
 
or
 
entity
 
or
pursuant to any
 
employee benefit plan
 
as assumed
 
by the Company
 
in connection with
 
any such
acquisition (provided that the aggregate
 
number of Common Shares
 
that the Company may
 
issue
or
 
sell
 
pursuant
 
to
 
this
 
clause (iv)
 
shall
 
not
 
exceed
 
5%
 
of
 
the
 
total
 
number
 
of
 
Common
 
Shares
issued and outstanding immediately prior to such issuance or sale).
 
(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).
 
 
 
 
 
 
27
(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
 
Effect. 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 Effect; 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
 
its 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
 
principal executive
officer or principal
 
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 or in
the certificate described in Section 4(o)).
(c)
 
No
 
Misstatement
 
or
 
Material
 
Omission.
 
The
 
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
 
 
 
 
 
 
28
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 may 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
 
the
 
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
 
 
 
 
 
29
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,
 
or
 
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),
 
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
 
the
 
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 one
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 so to 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
 
 
 
 
 
 
 
 
30
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
 
 
 
 
 
 
 
 
 
 
 
 
 
31
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 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
 
.
 
 
 
 
 
 
 
 
 
 
32
(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 as
 
soon as
 
practicable
 
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) 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 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 Affiliates may be engaged in a broad range of transactions that involve interests
 
 
33
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
E-mail: dgoldberg@cooley.com;
 
josh.kaufman@cooley.com
 
If to the Company:
Vaxxinity,
 
Inc.
 
505 Odyssey Way
Merritt Island,
 
FL32953
Attention: General Counsel
E-mail: legal@vaxxinity.com
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
 
450 Lexington Avenue
 
 
 
 
 
 
 
34
New York,
 
NY 10017
 
Attention: Yasin
 
Keshvargar
 
E-mail: yasin.keshvargar@davispolk.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
35
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,
VAXXINITY,
 
INC.
By:
 
/s/ Mei Mei Hu
 
Name: Mei Mei Hu
 
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
 
 
 
 
 
 
 
 
 
 
 
 
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York,
 
New York
 
10022
Attn: [__________]
Reference
 
is
 
made
 
to
 
the
 
Open
 
Market
 
Sale
 
Agreement
SM
 
between
 
Vaxxinity,
 
Inc.
 
(the
“
Company
”) and
 
Jefferies LLC (the
 
“
Agent
”) dated
 
as of
 
August 9,
 
2023. 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):
 
$
 
Maximum number of Shares to be sold (notwithstanding a higher Sale Amount)
 
 
Number of days in selling period:
 
First date of selling period:
 
Last date of selling period:
 
Settlement Date(s) if other than standard T+2 settlement:
 
Floor Price Limitation (in no event less than $1.00 without the prior written consent of the
Agent, which consent may be withheld in the Agent’s sole discretion): $ ____ per share
Comments:
 
 
 
 
By:
 
 
Name:
 
Title:
 
 
 
 
 
 
 
 
Exhibit B
Form of Officer’s Certificate Pursuant to Section 4(o)
The undersigned, the duly qualified and elected [●] of Vaxxinity,
 
Inc., a Delaware
corporation (the “
Company
”), does hereby certify in such capacity and on behalf of the
Company, pursuant to Section 4(o) of the Open Market Sale Agreement
SM
, dated August 9,
2023, between the Company and Jefferies LLC (the “
Sale Agreement
”), that to the knowledge
of the undersigned:
(i)
 
The representations and warranties of the Company in Section 2 of the Sale
Agreement are true and correct on and as of the date hereof with the same force and effect as if
expressly made on and as of the date hereof; provided, however that such representations and
warranties are qualified by the disclosure included or incorporated by reference in the
Registration Statement and Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and
(ii)
 
The Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to the Sale Agreement at or prior to the date hereof.
Davis Polk & Wardwell LLP
 
and Cooley LLP are entitled to rely on this certificate in
connection with the respective opinions such firms are rendering pursuant to the Sale Agreement.
Capitalized terms used herein without definition shall have the meanings given to such terms in
the Sale Agreement.
 
VAXXINITY,
 
INC.
By:
 
Name:
 
Title:
 
Date: [•]
 
 
 
 
 
Exhibit C
Form of Secretary’s Certificate Pursuant to Section 4(o)
The undersigned, Secretary of Vaxxinity,
 
Inc.,
 
a Delaware corporation (the “
Company
”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 4(o) of
the Open Market Sale Agreement
SM
, dated August 9, 2023, between the Company and Jefferies
LLC (the “
Sale Agreement
”), that to the knowledge of the undersigned:
1.
 
Attached hereto as Appendix A is a true, correct and complete copy of the
Company’s certificate of incorporation dated [●] (the “
Certificate of Incorporation
”), filed
with the Delaware Secretary of State on [●], as in full force and effect as of the date hereof.
 
Since such date, no amendment to the Certificate of Incorporation has been approved by the
Board of Directors of the Company (the “
Board of Directors
”) or the shareholders of the
Company or filed with the Delaware Secretary of State.
 
2.
 
Attached hereto as Appendix B is a true, correct and complete copy of the bylaws
of the Company as in effect at the date hereof and at all times since [●]. No action has been taken
by the Company or its stockholders, directors or officers to effect or authorize any amendment or
other modification to the bylaws.
3.
 
No proceeding for the dissolution, merger, sale, consolidation or liquidation of the
Company or for the sale of all or substantially all of its assets is pending or, to the best of my
knowledge, threatened and no such proceeding is contemplated by the Company.
4.
 
Attached hereto as Appendices C-1 and C-2, respectively, are true, correct and
complete copies of written resolutions duly adopted by (i) the Board of Directors on August [●],
2023 and (ii) the committee designated by the Board of Directors on August [●], 2023. Such
resolutions have not been amended or modified, are in full force and effect in the form adopted
and are the only resolutions adopted by the Board of Directors or by any committee of or
designated by the Board of Directors relating to (i) the Company’s Registration Statement on
Form S-3 (File No. 333-[●]) (the “
Registration Statement
”) filed with the Securities and
Exchange Commission (the “
SEC
”), and (ii) the execution and delivery of the Sale Agreement
and the consummation of the transactions contemplated thereunder (including, without
limitation, the sale of the Common Shares pursuant to such agreement).
5.
 
Each person who, as a director or officer of the Company, signed (a) the
Registration Statement, (b) the Sale Agreement and (c) any other document or certificate
delivered under the Sale Agreement in connection with the transactions contemplated thereunder
was at the respective times of such signing and delivery and, in the case of the document referred
to under (a) above, was at the time of filing such Registration Statement with the SEC, duly
elected or appointed and acting as such director or officer and was duly authorized to execute
and deliver such document on behalf of the Company, and the signatures of such persons
appearing on such documents are their genuine signatures or true facsimiles thereof.
6.
 
The minutes and resolutions of the Company relating to all proceedings of the
shareholders and the Board of Directors (and any committee of the Board of Directors) of the
Company made available to Davis Polk & Wardwell LLP
 
and Cooley LLP are the original
 
minutes and resolutions of the Company, or are true, correct and complete copies thereof, with
respect to all such proceedings of said shareholders, Board of Directors and committees of the
Board of Directors of the Company since January 1, 2020 through the date hereof. The minutes,
resolutions and other documents of the Company made available to Davis Polk & Wardwell LLP
and Cooley LLP were true, correct and complete in all respects. There have been no material
changes, additions or alterations in said minutes, resolutions and other documents that have not
been disclosed to Davis Polk & Wardwell LLP and
 
Cooley LLP in writing.
7.
 
The Sale Agreement, as executed and delivered by the Company, is in
substantially the form approved by one or more of the Company’s officers pursuant to the
resolutions referred to in paragraph 4 above, under authority delegated by the Board of Directors,
and has been duly executed and delivered on behalf of the Company by an appropriate officer of
the Compan
y.
8.
 
American Stock Transfer & Trust Company,
 
LLC has been duly appointed by the
Company to serve as the transfer agent and registrar for the Common Shares and, as of the date
hereof, serves in such capacity for the Common Shares.
 
Davis Polk & Wardwell LLP
 
and Cooley LLP are entitled to rely on this certificate in
connection with the respective opinions such firms are rendering pursuant to the Sale Agreement.
Capitalized terms used herein without definition shall have the meanings given to such terms in
the Sale Agreement.
 
 
 
 
 
Schedule A
Notice Parties
The Company
Mei Mei Hu
 
The Agent
Michael Magarro
Donald Lynaugh
 
 
Exhibit 4.3
VAXXINITY,
 
INC.
INDENTURE
Dated as of [___]
[___], as Trustee
 
 
TABLE OF CONTENTS
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Section 9.01.
 
Without Consent of Holders
38
Section 9.02.
 
With Consent of Holders
39
5
Reconciliation and tie between Trust Indenture
 
Act of 1939 and Indenture, dated as of [___].
 
§ 310(a)(1).....................................................................................................
 
7.10
(a)(2)
 
....................................................................................................
 
7.10
(a)(3)
 
....................................................................................................
 
Not Applicable
(a)(4)
 
....................................................................................................
 
Not Applicable
(a)(5)
 
....................................................................................................
 
7.10
(b) ........................................................................................................
 
7.10
§ 311(a) .........................................................................................................
 
7.11
(b) ........................................................................................................
 
7.11
§ 312(a)
 
.........................................................................................................
 
2.06
(b) ........................................................................................................
 
11.03
(c) ........................................................................................................
 
11.03
§ 313(a)
 
.........................................................................................................
 
7.06
(b)(1)
 
....................................................................................................
 
7.06
(b)(2)
 
....................................................................................................
 
7.06
(c) ........................................................................................................
 
7.06
(d) ........................................................................................................
 
7.06
§ 314(a)
 
.........................................................................................................
 
4.02, 4.03
(b) ........................................................................................................
 
Not Applicable
(c)(1)
 
....................................................................................................
 
11.04
(c)(2)
 
....................................................................................................
 
11.04
(c)(3)
 
....................................................................................................
 
Not Applicable
(d) ........................................................................................................
 
Not Applicable
(e) ........................................................................................................
 
11.05
(f) .........................................................................................................
 
Not Applicable
§ 315(a)
 
.........................................................................................................
 
7.01
(b) ........................................................................................................
 
7.05
(c) ........................................................................................................
 
7.01
(d) ........................................................................................................
 
7.01
(e) ........................................................................................................
 
6.14
§ 316(a)
 
.........................................................................................................
 
2.10
(a)(1)(A)
 
...............................................................................................
 
6.12
(a)(1)(B)
 
...............................................................................................
 
6.13
(a)(2)
 
....................................................................................................
 
Not Applicable
(b) ........................................................................................................
 
6.08
(c) ........................................................................................................
 
9.05
§ 317(a)(1).....................................................................................................
 
6.03
(a)(2)
 
....................................................................................................
 
6.04
(b) ........................................................................................................
 
2.05
§ 318(a)
 
.........................................................................................................
 
11.01
Note: This reconciliation and tie shall not, for any purpose, be
 
deemed to be part of the Indenture.
 
6
Indenture dated as of [___], between Vaxxinity,
 
Inc., a Delaware corporation (the “Company”),
and [___] (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 Securities issued under this
 
Indenture.
ARTICLE 1
D
EFINITION AND
I
NCORPORATION BY
R
EFERENCE
Section 1.01.
 
Definitions.
“Additional Amounts” means any additional amounts which are
 
required hereby or by any
Security, under circumstances
 
specified herein or therein, to be paid by the Company in
 
respect of certain
taxes imposed on Holders specified therein and which
 
are owing to such Holders.
“Affiliate” of any specified Person means any
 
other Person, directly or indirectly,
 
controlling or
controlled by or under direct or indirect common control
 
with such specified Person. For the purposes of
this definition, “control” when used with respect to any Person
 
means 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.
“Agent” means any Registrar,
 
Paying Agent, co-agent, co-registrar or Service Agent.
“Authorized Newspaper” means a newspaper in an official
 
language of the country of publication
customarily published at least once a day for at least five
 
days in each calendar week and of general
circulation in the place in connection with which the term
 
is used. If it shall be impractical in the opinion of
the Trustee to make any publication
 
of any notice required hereby in an Authorized
 
Newspaper, any
publication or other notice in lieu thereof that is made or
 
given by the Trustee shall constitute a
 
sufficient
publication of such notice.
“Bearer” means anyone in possession from time to time
 
of a Bearer Security.
“Bearer Global Security” or “Bearer Global Securities” means
 
a Bearer Security or Securities, as
the case may be, in the form established pursuant to Section 2.02
 
evidencing all or part of a Series of
Bearer Securities, deposited with a common depositary
 
for Euroclear Bank S.A./N.V.,
 
as operator of the
Euroclear System and/or Clearstream Banking, société
 
anonyme, Luxembourg.
“Bearer Security” means any Security,
 
including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
“Board of Directors” means the Board of Directors of the Company
 
or any duly authorized
committee thereof.
“Board Resolution” means a copy of a resolution certified by the
 
Secretary or an Assistant
Secretary of the Company to have been adopted by the Board
 
of Directors or pursuant to authorization by
the Board of Directors and to be in full force and effect
 
on the date of the certificate and delivered to the
Trustee.
“Business Day” means, unless otherwise provided by
 
Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, each day
 
which is not a Legal Holiday.
7
“Capital Stock” of any Person means any and all shares,
 
interests, rights to purchase, warrants,
options, participations or other equivalents of or interests
 
in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt
 
securities convertible into such equity.
“Company” means the party named as such above until a successor
 
replaces it and thereafter
means the successor.
“Company Order” means a written order signed in the
 
name of the Company by two Officers, one
of whom must be the Company’s principal executive
 
officer, principal financial
 
officer or principal
accounting officer.
“Company Request” means a written request signed in
 
the name of the Company by its Chairman
of the Board of Directors, principal executive officer,
 
principal financial officer,
 
principal accounting officer,
a President or a Vice President, and by its
 
Treasurer,
 
an Assistant Treasurer,
 
its Secretary or an
Assistant Secretary,
 
and delivered to the Trustee.
“Corporate Trust Office” means
 
the office of the Trustee
 
at which at any particular time its
corporate trust business relating to this Indenture shall be principally
 
administered, which as of the date of
this Indenture shall be located
 
at:
[___].
“Debt” of any Person as of any date means, without duplication,
 
all indebtedness of such Person
in respect of borrowed money,
 
including all interest, fees and expenses owed in respect thereto
 
(whether
or not the recourse of the lender is to the whole of the
 
assets of such Person or only to a portion thereof),
or evidenced by bonds, notes, debentures or similar instruments.
“Default” means any event which is, or after notice or passage
 
of time would be, an Event of
Default.
“Depositary” means, with respect to the Securities of any
 
Series issuable or issued in whole or in
part in the form of one or more Registered Global Securities,
 
the Person designated as Depositary for
such Series by the Company,
 
which Depositary shall be a clearing agency registered
 
under the Exchange
Act; and if at any time there is more than one such Person,
 
“Depositary” as used with respect to the
Securities of any Series shall mean the Depositary with
 
respect to the Securities of such Series.
“Discount Security” means any Security that provides for
 
an amount less than the stated principal
amount thereof to be due and payable upon declaration
 
of acceleration of the maturity thereof pursuant to
Section 6.02.
“Dollars” means the currency of the United States of
 
America.
“Exchange Act” means the Securities Exchange Act of 1934,
 
as amended.
“Foreign Currency” means any currency or currency unit
 
issued by a government other than the
government of the United States of America.
“Foreign Government Obligations” means with respect
 
to Securities of any Series that are
denominated in a Foreign Currency,
 
(i) direct obligations of the government that issued or
 
caused to be
issued such currency for the payment of which obligations
 
its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by or acting
 
as an agency or instrumentality of such
government the timely payment of which is unconditionally
 
guaranteed as a full faith and credit obligation
by such government, which, in either case under clauses
 
(i) or (ii), are not callable or redeemable at the
option of the issuer thereof.
8
“Holder” or “Securityholder” means a Person in whose
 
name a Security is registered in the
Register or the holder of a Bearer Security.
“Indenture” means this Indenture as originally executed
 
and delivered and as supplemented or
amended from time to time and shall include the form and terms
 
of particular Series of Securities
established as contemplated hereunder.
“interest” with respect to any Discount Security which by
 
its terms bears interest only after
Maturity, means interest
 
payable after Maturity.
“Maturity,” when used
 
with respect to any Security or installment of principal
 
thereof, means the
date on which the principal of such Security or such installment
 
of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity
 
or by declaration of acceleration, call for
redemption, notice of option to elect repayment or otherwise.
“Officer” means the Chairman of the Board, the
 
principal executive officer,
 
the principal financial
officer, the principal
 
accounting officer,
 
the President, any Vice-President, the Treasurer,
 
the Secretary,
any Assistant Treasurer or any Assistant
 
Secretary of the
 
Company.
“Officers’ Certificate” means a certificate signed by
 
two Officers, one of whom must be the
Company’s principal executive officer,
 
principal financial officer or principal accounting
 
officer.
“Opinion of Counsel” means a written opinion of legal
 
counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee
 
of or counsel to the Company or the Trustee.
“Person” means any individual, corporation, partnership, joint
 
venture, association, limited liability
company, joint-stock
 
company, trust,
 
unincorporated organization or government or any agency
 
or
political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of
 
any Series, means the place or
places specified in accordance with Section 2.02 where
 
the principal of and any premium and interest on
the Securities of that Series are payable, or if not so specified,
 
in accordance with Section 4.06.
“Preferred Stock,” as applied to the Capital Stock of any
 
Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the
 
payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation
 
or dissolution of such Person, over
shares of Capital Stock of any other class of such Person.
“principal” of a Security means the principal of the Security
 
plus, when appropriate, the premium,
if any, on, and any
 
Additional Amounts in respect of, the Security.
“Registered Global Security” or “Registered Global Securities”
 
means a Security or Securities, as
the case may be, in the form established pursuant to Section 2.02
 
evidencing all or part of a Series of
Securities, issued to the Depositary for such Series or its
 
nominee, and registered in the name of such
Depositary or nominee.
“Registered Securities” means any Security registered
 
on the Register of the Company.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other debt
 
instruments of the Company of any Series
authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended,
 
and the rules and regulations
promulgated thereunder, as
 
in effect from time to time.
9
“Senior Debt” means the principal of, premium, if any,
 
unpaid interest, and all fees and other
amounts payable in connection with the following, whether
 
outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, on (x)the Debt
 
of the Company,
 
for money borrowed other
than (a) any Debt of the Company which when incurred
 
and without respect to any election under Section
1111(b)
 
of the Federal Bankruptcy Code, was without recourse
 
to the Company, (b)
 
any Debt of the
Company to any of its Subsidiaries, (c) Debt to any employee
 
of the Company, (d)
 
any liability for taxes
and (e) Trade Payables, unless the instrument
 
creating or evidencing the same or pursuant to which the
same is outstanding provides that such Debt is not senior or
 
prior in right of payment to the Securities, (y)
all obligations of the Company under interest rate, currency
 
and commodity swaps, caps, floors, collars,
hedge arrangements, forward contracts or similar agreements
 
or arrangements and (z) renewals,
extensions, modifications and refundings of any such
 
Debt. This definition may be modified or
superseded by a supplemental indenture.
“Senior Securities” means Securities other than Subordinated
 
Securities.
“Series” or “Series of Securities” means each series of
 
debentures, notes or other debt
instruments of the Company created pursuant to Sections
 
2.01 and 2.02 hereof.
“Stated Maturity” when used with respect to any Security
 
or any installment of principal thereof or
interest thereon, means the date specified in such Security
 
as the fixed date on which the principal of
such Security or such installment of principal or interest
 
is due and payable (without regard for any
provisions for acceleration, redemption prepayment or
 
otherwise).
“Subordinated Securities” means Securities that by the
 
terms established pursuant to Section
2.02(i) are subordinated in right of payment to Senior Debt
 
of the Company.
“Subordination Provisions,” when used with respect to
 
the Subordinated Securities of any Series,
shall have the meaning established pursuant to Section 2.02(i) with
 
respect to the Subordinated
Securities of such Series.
“Subsidiary” of any Person means any corporation, association,
 
partnership or other business
entity of which more than 50% of the total voting power
 
of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the
 
occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof
 
is at the time owned or controlled, directly or
indirectly, by (i) such
 
Person, (ii) such Person and one or more Subsidiaries
 
of such Person or (iii) one or
more Subsidiaries of such Person.
“TIA” means the Trust Indenture
 
Act of 1939 (15 U.S. Code §§ 77aaa -77bbbb) as in effect
 
on the
date of this Indenture; provided, however,
 
that in the event the Trust Indenture
 
Act of 1939 is amended
after such date, “TIA” means, to the extent required by
 
any such amendment, the Trust Indenture
 
Act of
1939 as so amended.
“Trade Payables” means accounts payable
 
or any other Debt or monetary obligations to trade
creditors created or assumed by the Company or any
 
Subsidiary of the Company in the ordinary course
of business in connection with the receipt of materials or services.
“Trust Officer” means any officer
 
within the Corporate Trust Office
 
of the Trustee with direct
responsibility for the administration of this Indenture.
“Trustee” means the Person named as
 
the “Trustee” in the first paragraph of
 
this instrument until
a successor Trustee shall have become such
 
pursuant to the applicable provisions of this Indenture,
 
and
thereafter “Trustee” shall mean or include
 
each Person who is then a Trustee
 
hereunder, and if at any
time there is more than one such Person, “Trustee”
 
as used with respect to the Securities of any Series
shall mean the Trustee with respect to
 
Securities of that Series.
 
 
10
“U.S. Government Obligations” means direct obligations
 
(or certificates representing an
ownership interest in such obligations) of the United
 
States of America (including any agency or
instrumentality thereof) for the payment of which the full
 
faith and credit of the United States of America is
pledged and which are not callable or redeemable at the issuer’s option.
Section 1.02.
 
Other Definitions.
 
Term
Defined in
Section
 
“Bankruptcy Law” ..................................................................................................
 
6.01
“Custodian”
 
............................................................................................................
 
6.01
“Event of Default” ..................................................................................................
 
6.01
“Judgment Currency” ............................................................................................
 
11.16
“Legal Holiday” ......................................................................................................
 
11.07
“mandatory sinking fund payment”
 
........................................................................
 
12.01
“Market Exchange Rate” .......................................................................................
 
11.15
“New York
 
Banking Day”
 
.......................................................................................
 
11.16
“optional sinking fund payment” ............................................................................
 
12.01
“Paying Agent” ......................................................................................................
 
2.04
“Register”...............................................................................................................
 
2.04
“Registrar” .............................................................................................................
 
2.04
“Required Currency”
 
..............................................................................................
 
11.16
“Service Agent” .....................................................................................................
 
2.04
“successor person”
 
................................................................................................
 
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.
“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
 
and any successor obligor upon the
Securities.
All other terms used in this Indenture that are defined
 
by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA and not
 
otherwise defined herein are used herein as
so defined.
Section 1.04.
 
Rules of Construction.
 
Unless the context otherwise requires:
(i)
 
a term has the meaning assigned to it;
(ii)
 
an accounting term not otherwise defined has the meaning
 
assigned to it in
accordance with generally accepted accounting principles;
11
(iii)
 
references to “generally accepted accounting principles”
 
shall mean generally
accepted accounting principles in effect as of the
 
time when and for the period as to which such
accounting principles are to be applied;
(iv)
 
or” is not exclusive; and
(v)
 
words in the singular include the plural, and in the plural
 
include the singular.
ARTICLE 2
T
HE
S
ECURITIES
Section 2.01.
 
Issuable in Series.
 
The aggregate principal amount of Securities that
 
may be
authenticated and delivered under this Indenture is unlimited.
 
The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except
 
as may be set forth in a Board Resolution,
a supplemental indenture or an Officers’ Certificate
 
detailing the adoption of the terms thereof pursuant
 
to
the authority granted under a Board Resolution. In the
 
case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers’ Certificate
 
or supplemental indenture may provide for the
method by which specified terms (such as interest rate,
 
maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ
 
between Series in respect of any
matters, provided that all Series of Securities shall be equally
 
and ratably entitled to the benefits of the
Indenture.
Section 2.02.
 
Establishment of Terms
 
of Series of Securities.
 
At or prior to the issuance of any
Securities within a Series, the following shall be established
 
(as to the Series generally,
 
in the case of
Subsection 2.02(a) and either as to such Securities within the
 
Series or as to the Series generally in the
case of Subsections 2.02(b) through 2.02(x)) by a Board
 
Resolution, a supplemental indenture or an
Officers’ Certificate pursuant to authority granted
 
under a Board Resolution:
(a)
 
the title and designation of the Securities of the Series,
 
which shall distinguish the
Securities of the Series from the Securities of all other
 
Series, and which may be part of a Series of
Securities previously issued;
(b)
 
any limit upon the aggregate principal amount of the Securities
 
of the Series that may be
authenticated and delivered under this Indenture (except for
 
Securities authenticated and delivered upon
registration of, transfer of, or in exchange for,
 
or in lieu of, other Securities of the Series pursuant to
Section 2.07, 2.08, 2.11,
 
3.06 or 9.06);
(c)
 
if other than Dollars, the Foreign Currency or Foreign
 
Currencies in which the Securities of
the Series are denominated;
(d)
 
the date or dates on which the principal of the Securities
 
of the Series is payable or the
method of determination thereof;
(e)
 
the rate or rates (which may be fixed or variable) at which
 
the Securities of the Series shall
bear interest, if any,
 
the date or dates from which such interest shall accrue,
 
on which such interest shall
be payable, the terms and conditions of any deferral of
 
interest and the additional interest, if any,
 
thereon,
the right, if any, of
 
the Company to extend the interest payment periods
 
and the duration of the
extensions and (in the case of Registered Securities) the
 
date or dates on which a record shall be taken
for the determination of Holders to whom interest is payable
 
and/or the method by which such rate or
rates or date or dates shall be determined;
(f)
 
the place or places where and the manner in which, the principal
 
of and any interest on
Securities of the Series shall be payable;
12
(g)
 
the right, if any, of
 
the Company to redeem Securities, in whole or in
 
part, at its option and
the period or periods within which, or the date or dates
 
on which, the price or prices at which and any
terms and conditions upon which Securities of the Series
 
may be so redeemed, pursuant to any sinking
fund or otherwise;
(h)
 
the obligation, if any,
 
of the Company to redeem, purchase or repay Securities
 
of the
Series pursuant to any mandatory redemption, sinking
 
fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the
 
period or periods within which or the date or dates
on which, and any terms and conditions upon which Securities
 
of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i)
 
if the Securities of such Series are Subordinated Securities,
 
the terms pursuant to which
the Securities of such Series will be made subordinate in right
 
of payment to Senior Debt and the
definition of such Senior Debt with respect to such Series
 
(in the absence of an express statement to the
effect that the Securities of such Series are subordinate
 
in right of payment to all such Senior Debt, the
Securities of such Series shall not be subordinate to Senior
 
Debt and shall not constitute Subordinated
Securities); and, in the event that the Securities of such
 
Series are Subordinated Securities, such Board
Resolution, Officer’s Certificate or supplemental indenture, as
 
the case may be, establishing the terms of
such Series shall expressly state which articles, sections
 
or other provisions thereof constitute the
“Subordination Provisions” with respect to the Securities
 
of such Series;
(j)
 
if other than denominations of $1,000 and any integral multiple thereof
 
in the case of
Registered Securities, or $1,000 and $5,000 in the case
 
of Bearer Securities, the denominations in which
Securities of the Series shall be issuable;
(k)
 
the percentage of the principal amount at which the Securities
 
will be issued, and, if other
than the principal amount thereof, the portion of the principal
 
amount of Securities of the Series which
shall be payable upon declaration of acceleration of the maturity
 
thereof and the terms and conditions of
any acceleration;
(l)
 
if other than the coin, currency or currencies in which the Securities
 
of the Series are
denominated, the coin, currency or currencies in which
 
payment of the principal of or interest on the
Securities of such Series shall be payable, including composite
 
currencies or currency units;
(m) if the principal of or interest
 
on the Securities of the Series are to be payable, at
 
the
election of the Company or a Holder thereof, in a coin or currency
 
other than that in which the Securities
are denominated, the period or periods within which, and the
 
terms and conditions upon which, such
election may be made;
(n)
 
if the amount of payments of principal of and interest on the Securities
 
of the Series may
be determined with reference to an index or formula based
 
on a coin, currency,
 
composite currency or
currency unit other than that in which the Securities of the
 
Series are denominated, the manner in which
such amounts shall be determined;
(o)
 
whether the Securities of the Series will be issuable as
 
Registered Securities (and if so,
whether such Securities will be issuable as Registered
 
Global Securities) or Bearer Securities, with or
without interest coupons appertaining thereto (and if, so
 
whether such Securities will be issuable as
Bearer Global Securities), or any combination of the foregoing,
 
any restrictions applicable to the offer,
sale or delivery of Bearer Securities or the payment of interest
 
thereon and the terms upon which Bearer
Securities of any Series may be exchanged
 
for Registered Securities of such Series and vice versa;
(p)
 
whether and under what circumstances the Company
 
will pay additional amounts on the
Securities of the Series held by a person who is not a U.S.
 
person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so,
 
whether the Company will have the option to
redeem the Securities of the Series rather than pay such
 
additional amounts;
13
(q)
 
if the Securities of the Series are to be issuable in definitive
 
form (whether upon original
issue or upon exchange of a temporary Security of such
 
Series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form
 
and terms of such certificates, documents or
conditions;
(r)
 
any trustees, depositaries, authenticating or paying agents,
 
transfer agents or registrars of
any other agents with respect to the Securities of such Series;
(s)
 
any deletion from, modification of or addition to the Events
 
of Default or covenants with
respect to the Securities of such Series, including, if applicable,
 
covenants affording Holders of debt
protection with respect to the Company’s operations,
 
financial conditions and transactions involving the
Company;
(t)
 
if the Securities of the Series are to be convertible into
 
or exchangeable for any other
security or property of the Company,
 
including, without limitation, securities of another Person
 
held by the
Company or its Affiliates and, if so, the terms thereof,
 
including conversion or exchange prices or rate and
adjustments thereto;
(u)
 
the price or prices at which the Securities will be issued;
(v)
 
any provisions for remarketing;
(w)
 
the terms applicable to any Securities issued at a discount from
 
their stated principal
amount; and
(x)
 
any other terms of the Series.
All Securities of any one Series need not be issued at the
 
same time and may be issued from
time to time, consistent with the terms of this Indenture, if so
 
provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate
 
referred to above, and the authorized principal
amount of any Series may not be increased to provide for issuances
 
of additional Securities of such
Series, unless otherwise provided in such Board Resolution,
 
supplemental indenture or Officers’
Certificate.
Section 2.03.
 
Execution and Authentication.
 
One or more Officers 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 Security
 
is
authenticated, the Security shall be valid nevertheless
 
so long as such individual was an Officer at the
time of execution of the Security.
A Security shall not be valid until authenticated by the manual signature
 
of the Trustee or an
authenticating agent. The signature shall be conclusive evidence
 
that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from
 
time to time, authenticate Securities for original issue
 
in
the principal amount provided in the Board Resolution,
 
supplemental indenture hereto or Officers’
Certificate, upon receipt by the Trustee of
 
a Company Order. Each
 
Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution,
 
a supplemental indenture hereto or an
Officers’ Certificate.
The aggregate principal amount of Securities of any Series
 
outstanding at any time may not
exceed any limit upon the maximum principal amount for
 
such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
 
delivered pursuant to Section 2.02, except as
provided in Section 2.08.
14
Prior to the issuance of Securities of any Series, the Trustee
 
shall have received and (subject to
Section 7.02) shall be fully protected in relying on: (a) the Board
 
Resolution, supplemental indenture
hereto or Officers’ Certificate establishing the form
 
of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series
 
or of Securities within that Series, (b) an Officers
’ Certificate complying with Section 11.04,
 
and (c) an Opinion of Counsel complying with Section
 
11.04.
The Trustee shall have the right to decline
 
to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised
 
by counsel, determines that such action may not lawfully
 
be
taken; or (b) if the Trustee in good faith shall
 
determine that such action would expose the Trustee
 
to
personal liability to Holders of any then outstanding Series of
 
Securities.
The Trustee may appoint an authenticating
 
agent reasonably acceptable to the Company to
authenticate the Securities. Any such appointment shall be evidenced
 
by an instrument signed by a Trust
Officer, a copy of which
 
shall be furnished to the Company.
 
Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities
 
whenever the Trustee may do so.
 
Each
reference in this Indenture to authentication by the Trustee
 
includes authentication by such agent. An
authenticating agent has the same rights as an Agent
 
to deal with the Company or an Affiliate.
Section 2.04.
 
Registrar and Paying Agent.
 
The Company shall maintain, with respect to each
Series of Securities, at the place or places specified with respect
 
to such Series pursuant to Section 2.02,
an office or agency where Securities of such Series
 
may be presented or surrendered for payment
(“Paying Agent”), where Securities of such Series may
 
be surrendered for registration of transfer or
exchange (“Registrar”) and where notices and demands
 
to or upon the Company in respect of the
Securities of such Series and this Indenture may be served
 
(“Service Agent”). The Registrar shall keep a
register with respect to each Series of Registered Securities
 
(the “Register”) and to their transfer and
exchange. The Company will give prompt written notice
 
to the Trustee of the name and
 
address, and any
change in the name or address, of each Registrar,
 
Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required Registrar,
 
Paying Agent or Service Agent or shall fail to
furnish the Trustee with the name and address
 
thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust
 
Office of the Trustee, and the
 
Company hereby
appoints the Trustee as its agent to receive
 
all such presentations, surrenders, notices and demands;
provided that the Corporate Trust
 
Office shall not be an office or agency
 
of the Company for the purpose
of effecting service of legal process on the Company.
The Company may also from time to time designate one or
 
more co-registrars, additional paying
agents or additional service agents and may from time
 
to time rescind such designations; provided,
however, that no such designation
 
or rescission shall in any manner relieve the Company
 
of its
obligations to maintain a Registrar,
 
Paying Agent and Service Agent in each place so specified
 
pursuant
to Section 2.02 for Securities of any Series for such purposes.
 
The Company will give prompt written
notice to the Trustee of any such designation
 
or rescission and of any change in the name or address
 
of
any such co-registrar, additional
 
paying agent or additional service agent. The term “Registrar”
 
includes
any co-registrar; the term “Paying Agent” includes any
 
additional paying agent; and the term “Service
Agent” includes any additional service agent.
The Company hereby appoints the Trustee
 
as the initial Registrar,
 
Paying Agent and Service
Agent for each Series unless another Registrar,
 
Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.
 
The Company or any of its
domestically organized Subsidiaries may act as Paying
 
Agent, Registrar or Service Agent. So long as the
Trustee is the Service Agent, no service of
 
legal process on the Company may be made on the Service
Agent.
The rights, privileges, protections, immunities and benefits
 
given to the Trustee under this
Indenture 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 acting hereunder.
15
The Company shall enter into an appropriate agency agreement
 
with any Registrar,
 
Paying Agent
or Service Agent not a party to this Indenture, which shall incorporate
 
the terms of the TIA. The
agreement shall implement the provisions of this Indenture
 
that relate to such agent. The Company shall
notify the Trustee of the name and address
 
of any such agent.
The Company may remove any Registrar,
 
Paying Agent or Service Agent for any Series of
Securities upon written notice to such Registrar,
 
Paying Agent or Service Agent and to the Trustee;
provided, however, that no
 
such removal shall become effective until (1) acceptance
 
of an appointment
by a successor as evidenced by an appropriate agreement
 
entered into by the Company and such
successor Registrar, Paying
 
Agent or Service Agent, as the case may be, and delivered
 
to the Trustee or
(2) notification to the Trustee that the Trustee
 
shall serve as Registrar,
 
Paying Agent or Service Agent, as
the case may be, until the appointment of a successor
 
in accordance with clause (1) above. The
Registrar, Paying Agent or
 
Service Agent may resign at any time upon written notice;
 
provided, however,
that the Trustee may resign as Paying
 
Agent, Registrar or Service Agent only if the Trustee
 
also resigns
as Trustee in accordance with Section
 
7.08. Upon any Event of Default under Section 6.01(e)
 
or Section
6.01(f), the Trustee shall automatically be
 
the Paying Agent.
Section 2.05.
 
Paying Agent to Hold Money in Trust.
 
Prior to each due date of the principal and
interest on any Series of Securities, the Company shall deposit
 
with the Paying Agent (or if the Company
or a Subsidiary is acting as Paying Agent, segregate and hold
 
in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal
 
and interest when so becoming due. The Company
shall require each Paying Agent (other than the Trustee)
 
to agree in writing that the Paying Agent will hold
in trust, for the benefit of Securityholders of any Series
 
of Securities, or the Trustee, all money
 
held by the
Paying Agent for the payment of principal of or interest on the
 
Series of Securities, and shall notify the
Trustee of any default by the Company
 
in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to
 
pay all money held by it to the Trustee.
 
The Company at any
time may require a Paying Agent to pay all money held by it
 
to the Trustee. Upon payment over to
 
the
Trustee, the Paying Agent (if other than
 
the Company or a Subsidiary) shall have no further liability
 
for the
money. If the Company
 
or a Subsidiary acts as Paying Agent, it shall segregate
 
and hold in a separate
trust fund for the benefit of Securityholders of any Series
 
of Securities all money held by it as Paying
Agent.
Section 2.06.
 
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
of each Series of Securities and shall otherwise comply
 
with TIA § 312(a). If the Trustee is not the
Registrar, the Company shall
 
furnish, or cause the Registrar to furnish, to the Trustee
 
at least five
Business Days before each interest payment date, but
 
in any event not less frequently than semi-
annually, 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 of each
Series of Securities.
Section 2.07.
 
Exchange and Registration of Transfer.
 
The Company shall cause to be kept at
the Corporate Trust Office the
 
Register in which, subject to such reasonable regulations
 
as it may
prescribe, the Company shall provide for the registration of
 
Securities of a Series and of transfers of
Securities of such Series. The Register shall be in written
 
form or in any form capable of being converted
into written form within a reasonably prompt period of time.
Upon surrender for registration of transfer of any Security
 
of a Series to the Registrar or any co-
registrar, and satisfaction of
 
the requirements for such transfer set forth in this Section 2.07,
 
the Company
shall execute, and the Trustee shall
 
authenticate and deliver, in
 
the name of the designated transferee or
transferees, one or more new Security of the same Series
 
of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive
 
legends as may be required by this Indenture.
Securities of a Series may be exchanged for other Securities of
 
the same Series of any
authorized denominations and of a like aggregate principal
 
amount, upon surrender of the Securities to
be exchanged at any such office or agency maintained
 
by the Company pursuant to Section 4.06.
16
Whenever any Securities of a Series are so surrendered
 
for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver,
 
the Securities of the same Series that the Holder making
 
the
exchange is entitled to receive bearing registration numbers
 
not contemporaneously outstanding.
All Securities of a Series issued upon any registration
 
of transfer or exchange of Securities of the
same Series shall be the valid obligations of the Company,
 
evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities
 
of the same Series surrendered upon such
registration of transfer or exchange.
All Securities of a Series presented or surrendered for registration
 
of transfer or for exchange
shall (if so required by the Company or the Registrar) be duly
 
endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory
 
to the Company, and
 
the Securities of such
Series shall be duly executed by the Holder thereof or
 
his attorney duly authorized in writing.
No service charge shall be made to any holder for any
 
registration of, transfer or exchange of
Securities, but the Company or the Trustee
 
may require payment by the holder of a sum sufficient
 
to
cover any tax, assessment or other governmental charge
 
that may be imposed in connection with any
registration of transfer or exchange of such Securities (other than
 
any such transfer tax or similar
governmental charge payable upon exchanges pursuant
 
to Sections 2.11,
 
3.06 or 9.06).
Neither the Company nor the Trustee nor any
 
Registrar shall be required to exchange, issue or
register a transfer of (a) Securities of any Series for a
 
period of fifteen calendar days next preceding date
of mailing of a notice of redemption of Securities of that
 
Series selected for redemption, or (b) Securities
of any Series or portions thereof called for redemption,
 
except for the unredeemed portion of any
Securities of that Series being redeemed in part.
Section 2.08.
 
Mutilated, Destroyed, Lost and Stolen Securities.
 
If a mutilated Security is
surrendered to the Registrar or if the Securityholder of
 
a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue
 
and the Trustee shall authenticate
 
and deliver a
replacement Security of the same Series if the requirements of
 
Section 8-405 of the Uniform Commercial
Code are met, such that the Securityholder (a) satisfies
 
the Company or the Trustee within a
 
reasonable
time after he has notice of such loss, destruction or wrongful
 
taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes
 
such request to the Company or the Trustee
 
prior to
the Security being acquired by a protected purchaser as
 
defined in Section 8-303 of the Uniform
Commercial Code (a “protected purchaser”) and (c) satisfies
 
any other reasonable requirements of the
Company or the Trustee. If required by the
 
Trustee or the Company,
 
such Securityholder shall furnish an
indemnity bond sufficient in the judgment of the Trustee
 
to protect the Trustee and any Agent and
 
in the
judgment of the Company to protect the Company,
 
the Trustee, the Paying Agent and the Registrar
 
from
any loss that any of them may suffer if a Security
 
is replaced. The Company and the Trustee
 
may charge
the Securityholder for their expenses in replacing a Security.
 
In case any Security which has matured or
is about to mature or has been called for redemption,
 
shall become mutilated or be destroyed, lost or
stolen, the Company may,
 
instead of issuing a substitute Security,
 
pay or authorize the payment of
(without surrender thereof except in the case of a mutilated
 
Security), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company,
 
to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may
 
be required by them to save each of them
harmless for any loss, liability,
 
cost or expense caused by or in connection with such
 
substitution, and, in
every case of destruction, loss or theft, the applicant shall also
 
furnish to the Company,
 
the Trustee and, if
applicable, any Paying Agent evidence to their satisfaction of the
 
destruction, loss or theft of such
Securities and of the ownership thereof.
Every replacement Security of any Series issued pursuant to
 
this Section is an additional
obligation of the Company,
 
evidencing the same debt, and entitled to the same benefits
 
under this
Indenture, as the Securities of the same Series replaced.
17
The provisions of this Section are exclusive and shall
 
preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
 
payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.09.
 
Outstanding Securities.
 
The Securities outstanding at any time are all the
Securities authenticated by the Trustee
 
except for those cancelled by it, those delivered to
 
it for
cancellation, those reductions in the interest on a Registered
 
Global Security effected by the Trustee
 
in
accordance with the provisions hereof and those described in
 
this Section as not outstanding. A Security
does not cease to be outstanding because the Company
 
or an Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
 
to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the
 
replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Company,
 
a Subsidiary or an Affiliate of any thereof) holds
 
on
the Maturity of Securities of a Series money sufficient
 
to pay such Securities (or portions thereof) payable
on that date, and the Paying Agent is not prohibited from
 
paying such money to the Securityholders of
such Series on that date pursuant to the terms of the Indenture,
 
then on and after that date such
Securities of the Series (or portions thereof) cease to be
 
outstanding and interest on them ceases to
accrue.
In determining whether the Holders of the requisite principal
 
amount of outstanding Securities
have given any request, demand, authorization, direction,
 
notice, consent or waiver hereunder,
 
the
principal amount of a Discount Security that shall be deemed
 
to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and
 
payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant
 
to Section 6.02.
Section 2.10.
 
Treasury Securities.
 
In determining whether the Holders of the required
 
principal
amount of Securities of a Series have concurred in any
 
direction, waiver or consent, Securities of a Series
owned by the Company,
 
any other obligor upon the Securities or an
 
Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be 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 of a Series that the Trustee
 
knows are so owned shall be so disregarded. Securities
 
so
owned which have been pledged in good faith may be regarded
 
as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s
 
right so to act with respect to such Securities and that
 
the
pledgee is not the Company or any other obligor upon
 
the Securities or any Affiliate of the Company or
any other obligor on the Securities. In case of a dispute
 
as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee
 
in accordance with such advice. Upon written
request of the Trustee, the Company
 
shall furnish to the Trustee promptly
 
an Officers’ Certificate listing
and identifying all Securities, if any,
 
known by the Company to be owned or held by or for the account
 
of
any of the above-described persons; and, subject to Sections
 
7.01 and 7.02, the Trustee shall be entitled
to accept such Officers’ Certificate as conclusive
 
evidence of the facts therein set forth and of the fact that
all Securities not listed therein are outstanding for the purpose
 
of any such determination.
Section 2.11.
 
Temporary
 
Securities.
 
Pending the preparation of Securities in certificated
 
form,
the Company may execute and the Trustee
 
or an authenticating agent appointed by the Trustee
 
shall,
upon a Company Order, authenticate
 
and deliver temporary Securities (printed, lithographed,
 
typewritten,
photocopied or otherwise produced). Temporary
 
Securities shall be issuable in any authorized
denomination, and substantially in the form of the Securities
 
in certificated form, but with such omissions,
insertions and variations as may be appropriate for temporary
 
Securities, all as may be determined by the
Company. Every
 
such temporary Security shall be executed by the Company
 
and authenticated by the
Trustee or such authenticating agent upon
 
the same conditions and in substantially the same manner,
and with the same effect, as the Securities in certificated
 
form. Without unreasonable delay,
 
the Company
will execute and deliver to the Trustee
 
or such authenticating agent Securities of the same Series
 
in
certificated form and thereupon any or all temporary Securities
 
may be surrendered in exchange therefor,
at each office or agency maintained by the Company
 
pursuant to Section 4.07 and the Trustee
 
or such
18
authenticating agent shall authenticate and make available for
 
delivery in exchange for such temporary
Securities an equal aggregate principal amount of Securities
 
of the same Series in certificated form. Such
exchange shall be made by the Company at its own
 
expense and without any charge therefor.
 
Until so
exchanged, the temporary Securities shall in all respects
 
be entitled to the same benefits and subject to
the same limitations under this Indenture as Securities
 
of the same Series in certificated form
authenticated and delivered hereunder.
Section 2.12.
 
Cancellation.
 
The Company at any time may deliver Securities to the
 
Trustee for
cancellation. The Registrar and the Paying Agent shall
 
forward to the Trustee any Securities surrendered
to them for registration of transfer,
 
exchange or payment. The Trustee
 
and no one else shall cancel all
Securities surrendered for registration of transfer,
 
exchange, payment, replacement or cancellation and
dispose of such cancelled Securities in accordance with
 
its customary procedure. The Company may not
issue new Securities to replace Securities that it has paid or delivered
 
to the Trustee for cancellation. The
Trustee shall not authenticate Securities
 
in place of cancelled Securities other than pursuant to the terms
of this Indenture.
Section 2.13.
 
Defaulted Interest.
 
If the Company defaults in a payment of interest on
 
a Series
of Securities, it shall pay the defaulted interest, plus, to
 
the extent permitted by law,
 
any interest payable
on the defaulted interest, to the Persons who are Securityholders
 
of the Series on a subsequent special
record date. The Company shall fix or cause to be fixed any such
 
special record date and payment date
to the reasonable satisfaction of the Trustee
 
and shall promptly mail or cause to be mailed or deliver by
electronic transmission to each Securityholder of the
 
Series a notice that states the special record date,
the payment date and the amount of defaulted interest
 
to be paid. The Company may pay defaulted
interest in any lawful manner.
Section 2.14.
 
Registered Global Securities.
(a)
 
Terms
 
of Securities.
 
A Board Resolution, a supplemental indenture hereto
 
or an Officers’
Certificate shall establish whether the Securities of a Series shall
 
be issued in whole or in part in the form
of one or more Registered Global Securities and the Depositary
 
for such Registered Global Security or
Securities.
(b)
 
Transfer and Exchange.
 
Notwithstanding any provisions to the contrary contained
 
in
Section 2.07 of the Indenture and in addition thereto, any
 
Registered Global Security shall be
exchangeable pursuant to Section 2.07 of the Indenture for
 
Securities registered in the names of Holders
other than the Depositary for such Security or its nominee
 
only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for
 
such Registered Global Security or if at any time
such Depositary ceases to be a clearing agency registered
 
under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depositary
 
within 90 days of such event or (ii) the Company
executes and delivers to the Trustee an Officers’
 
Certificate to the effect that such Registered Global
Security shall be so exchangeable. Any Registered Global
 
Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities
 
registered in such names as the Depositary
shall direct in writing in an aggregate principal amount equal to
 
the principal amount of the Registered
Global Security with like tenor and terms.
Except as provided in this Section 2.14(b), a Registered Global
 
Security may not be transferred
except as a whole by the Depositary with respect to such
 
Registered Global Security to a nominee of
such Depositary, by
 
a nominee of such Depositary to such Depositary or
 
another nominee of such
Depositary or by the Depositary or any such nominee
 
to a successor Depositary or a nominee of such a
successor Depositary.
(c)
 
Legend. Any Registered Global Security issued hereunder
 
shall bear a legend in
substantially the following form:
“This Security is a Registered Global Security within the
 
meaning of the Indenture hereinafter
referred to and is registered in the name of the Depositary
 
or a nominee of the Depositary.
 
This
19
Security is exchangeable for Securities registered in the name of
 
a Person other than the
Depositary or its nominee only in the limited circumstances
 
described in the Indenture, and may
not be transferred except as a whole by the Depositary
 
to a nominee of the Depositary,
 
by a
nominee of the Depositary to the Depositary or another
 
nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary
 
or a nominee of such a successor
Depositary.”
(d)
 
Acts of Holders. The Depositary,
 
as a Holder, may appoint
 
agents and otherwise authorize
participants to give or take any request, demand, authorization,
 
direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.
(e)
 
Payments.
 
Notwithstanding the other provisions of this
 
Indenture, unless otherwise
specified as contemplated by Section 2.02, payment of
 
the principal of and interest, if any,
 
on any
Registered Global Security shall be made to the Holder thereof.
(f)
 
Consents, Declaration and Directions.
 
Except as provided in Section 2.14(d), the
Company, the Trustee
 
and any Agent shall treat a Person as the Holder of such
 
principal amount of
outstanding Securities of such Series represented by a Registered
 
Global Security as shall be specified in
a written statement of the Depositary with respect to such
 
Registered Global Security,
 
for purposes of
obtaining any consents, declarations, waivers or directions
 
required to be given by the Holders pursuant
to this Indenture.
Section 2.15.
 
Computation of Interest.
 
Except as otherwise specified pursuant to Section 2.02
for Securities of any Series, interest on the Securities of
 
each Series shall be computed on the basis of a
360 -day year of twelve 30 -day months.
Section 2.16.
 
CUSIP and ISIN Numbers.
 
The Company in issuing the Securities may use
“CUSIP” and “ISIN” numbers (if then generally in use),
 
and, if so, the Trustee shall use “CUSIP”
 
and
“ISIN” numbers in notices of redemption as a convenience
 
to Holders; provided that any such notice may
state that no representation is made as to the correctness
 
of such numbers either as printed on the
Securities or as contained in any notice of a redemption
 
and that reliance may be placed only on the
other elements of identification printed on the Securities, and
 
any such redemption shall not be affected
by any defect in or omission of such numbers. The Company
 
shall promptly notify the Trustee
 
in writing of
any changes to the CUSIP and ISIN numbers.
ARTICLE 3
R
EDEMPTION
Section 3.01.
 
Notice to Trustee.
 
The Company may,
 
with respect to any Series of Securities,
reserve the right to redeem and pay the Series of
 
Securities or may covenant to redeem and pay the
Series of Securities or any part thereof prior to the Stated Maturity
 
thereof at such time and on such terms
as provided for in such Securities. If a Series of Securities
 
is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part
 
of the Series of Securities pursuant to
the terms of such Securities, it shall notify the Trustee
 
in writing of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company
 
shall give the notice at least 35 calendar
days before the redemption date (or such shorter notice
 
as may be acceptable to the Trustee).
Section 3.02.
 
Selection of Securities to be Redeemed.
 
Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental
 
indenture or an Officers’ Certificate, if less than
all the Securities of a Series are to be redeemed, the
 
Trustee shall select the Securities of the
 
Series to
be redeemed in any manner that the Trustee
 
deems fair and appropriate. The Trustee
 
shall make the
selection from Securities of the Series outstanding not
 
previously called for redemption. The Trustee
 
may
select for redemption portions of the principal of Securities of
 
the Series that have denominations larger
than $1,000. Securities of the Series and portions of them it selects
 
shall be in amounts of $1,000 or
whole multiples of $1,000 or,
 
with respect to Securities of any Series issuable in other denominations
20
pursuant to Section 2.02(j), the minimum principal denomination
 
for each Series and integral multiples
thereof. Provisions of this Indenture that apply to Securities of
 
a Series called for redemption also apply to
portions of Securities of that Series called for redemption.
Section 3.03.
 
Notice of Redemption.
 
Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or
 
an Officers’ Certificate, at least 10 days but not
more than 60 days before a redemption date, the Company
 
shall provide a notice of redemption by
electronic transmission or first-class mail to each Holder
 
whose Securities are to be redeemed and if any
Bearer Securities are outstanding, publish on one occasion
 
a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to
 
be redeemed and shall state:
(a)
 
the redemption date;
(b)
 
the redemption price, or if not then ascertainable, the manner
 
of calculation thereof;
(c)
 
the name and address of the Paying Agent;
(d)
 
if less than all Securities of any Series are to be redeemed,
 
the identification of the
particular Securities to be redeemed and the portion of the
 
principal amount of any Security to be
redeemed in part;
(e)
 
that Securities of the Series called for redemption must
 
be surrendered to the Paying
Agent to collect the redemption price;
(f)
 
that interest on Securities of the Series called for redemption
 
ceases to accrue on and after
the redemption date;
(g)
 
the nature of any conditions precedent to the Company’s
 
obligation to redeem the
Securities on the redemption date; and
(h)
 
any other information as may be required by the terms
 
of the particular Series or the
Securities of a Series being redeemed.
At the Company’s written request, the Trustee
 
shall give the notice of redemption in the
Company’s name and at the Company’s
 
expense and provided that the form and content of such
 
notice
shall be prepared by the Company.
Section 3.04.
 
Effect of Notice of Redemption.
 
Once notice of redemption is transmitted, mailed
or published as provided in Section 3.03, Securities of a Series
 
called for redemption become due and
payable on the redemption date and at the redemption price. Upon
 
surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued
 
interest to, but excluding, the redemption
date.
Section 3.05.
 
Deposit of Redemption Price.
 
On or before the redemption date, the Company
shall deposit with the Paying Agent money sufficient
 
to pay the redemption price of and accrued interest,
if any, 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 Trustee shall authenticate for
 
the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed
 
portion of the Security surrendered.
21
ARTICLE 4
C
OVENANTS
Section 4.01.
 
Payment of Principal and Interest.
 
The Company shall duly and punctually pay
the principal of and interest, if any,
 
on the Securities of that Series in accordance with
 
the terms of such
Securities and this Indenture.
Section 4.02.
 
SEC Reports.
 
The Company shall furnish to the Trustee
 
within 15 days after the
filing by the Company with the SEC copies of the annual reports
 
and of the information, documents, and
other reports (or copies of such portions of any of the foregoing
 
as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC
 
pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the
 
other provisions of TIA § 314(a). The Company
will be deemed to have furnished such reports referred
 
to in this Section to the Trustee if the
 
Company
has filed such reports with the SEC via the EDGAR filing
 
system (or any successor thereto) and such
reports are publicly available.
Section 4.03.
 
Compliance Certificate.
 
The Company shall deliver to the Trustee,
 
within 120
days after the end of each fiscal year of the Company,
 
a brief certificate from the principal executive
officer, principal financial
 
officer, principal
 
accounting officer or vice president or treasurer
 
as to his or her
knowledge of the Company’s compliance with
 
all conditions and covenants under this Indenture (which
compliance shall be determined without regard to any period of
 
grace or requirement of notice provided
under this Indenture) and, in the event of any Default,
 
specifying each such Default and the nature and
status thereof of which such Person may have knowle
 
dge. Such certificates need not comply with Section
11.05 of this Indenture.
Section 4.04.
 
Stay, Extension
 
and 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,
 
extension or usury law wherever enacted, now or
 
at any time
hereafter in force, which may affect the covenants
 
or the performance of this Indenture or the Securities;
and the Company (to the extent it may lawfully do so)
 
hereby expressly waives all benefit or advantage of
any such law and covenants that it will not, by resort to
 
any such law, 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 has been enacted.
Section 4.05.
 
Corporate Existence.
 
Subject to Article 5, the Company will do or cause to
 
be
done all things necessary to preserve and keep in full
 
force and effect its corporate existence and the
rights (charter and statutory), licenses and franchises of
 
the Company; provided, however,
 
that the
Company shall not be required to preserve any such right,
 
license or franchise, if the Board of Directors
shall determine that the preservation thereof is no longer
 
desirable in the conduct of the business of the
Company and its Subsidiaries taken as a whole and that the loss
 
thereof is not adverse in any material
respect to the Holders.
Section 4.06.
 
Maintenance of Office or Agency.
 
The Company will maintain an office or
agency in the United States, where the Securities of a
 
Series may be surrendered for registration of
transfer or exchange or for presentation for payment and where
 
notices and demands to or upon the
Company in respect of the Securities of a Series and this
 
Indenture may be served. The Company will
give prompt written notice to the Trustee
 
of the location, and any change in the location, of such
 
office or
agency not designated or appointed by the Trustee.
 
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 Corporate Trust
 
Office.
The Company may also from time to time designate co-registrars
 
and one or more offices or
agencies where the Securities of a Series may be presented
 
or surrendered for any or all such purposes
and may from time to time rescind such designations.
 
The Company will give prompt written notice to the
22
Trustee of any such designation or rescission
 
and of any change in the location of any such other
 
office
or agency.
Section 4.07.
 
Money For Securities Payments to be Held in Trust.
 
If the Company shall at any
time act as its own Paying Agent with respect to the Securities
 
of any Series, it shall, on or before each
due date of the principal of and premium, if any,
 
and interest, if any,
 
on any of such Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto
 
a sum sufficient to pay the principal and
premium or interest so becoming due until such sums
 
shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly
 
notify the Trustee of any failure by the
Company (or any other obligor of such Securities) to make any
 
payment of principal of or premium, if any,
or interest, if any,
 
on such Securities.
Whenever the Company shall have one or more Paying Agents
 
for the Securities of any Series, it
shall, on or before each due date of the principal of and premium,
 
if any, and interest,
 
if any, on such
Securities, deposit with such Paying Agents sums sufficient
 
(without duplication) to pay the principal and
premium or interest so becoming due, such sums to be
 
held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such
 
Paying Agent is the Trustee) the
 
Company shall
promptly notify the Trustee of any failure
 
by it so to act.
The Company shall cause each Paying Agent for the
 
Securities of any Series, other than the
Company or the Trustee, to execute and
 
deliver to the Trustee an instrument
 
in which such Paying Agent
shall agree with the Trustee, subject to
 
the provisions of this Section, that such Paying Agent shall:
(i)
 
hold all sums held by it for the payment of the principal
 
of and premium, if any,
 
or
interest, if any, on such
 
Securities in trust for the benefit of the Persons entitled thereto
 
until such
sums shall be paid to such Persons or otherwise disposed
 
of as herein provided;
(ii)
 
give the Trustee notice of any failure
 
by the Company (or any other obligor upon
such Securities) to make any payment of principal of or
 
premium, if any, or
 
interest, if any, on
such Securities; and
(iii)
 
at any time during the continuance of any such failure,
 
upon the written request
of the Trustee, forthwith pay to the Trustee
 
all sums so held in trust by such Paying Agent and
furnish to the Trustee such information
 
as it possesses regarding the names and addresses of
the Persons entitled to such sums.
The Company may at any time pay,
 
or by Company Order direct any Paying Agent to pay,
 
to the
Trustee all sums held in trust by the Company
 
or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those
 
upon which such sums were held by the Company
 
or such Paying
Agent and, if so stated in a Company Order delivered to
 
the Trustee, in accordance with the
 
provisions of
Article 8; and, upon such payment by any Paying Agent to the Trustee,
 
such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee
 
or any Paying Agent, or then held by the Company,
 
in
trust for the payment of the principal of and premium, if
 
any, or interest, if
 
any, on any Security
 
and
remaining unclaimed for two years after such principal
 
and premium, if any,
 
or interest, if any,
 
has
become due and payable shall be paid to the Company
 
on request of the Company,
 
or, if then held by the
Company, shall be
 
discharged from such trust; and, upon such payment
 
or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as
 
the Holder of an outstanding Security,
 
look
only to the Company for payment of the amount so due
 
and payable and remaining unpaid, and all
liability of the Trustee or such Paying
 
Agent with respect to such trust money,
 
and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
 
however, that the Trustee
 
or such Paying
Agent, before being required to make any such payment
 
to the Company,
 
may at the expense of the
Company cause to be published once a week for two successive
 
weeks, in each case on any day of the
week, in an Authorized Newspaper in each Place of Payment,
 
notice that such money remains unclaimed
23
and that, after a date specified therein, which shall not
 
be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining
 
will be paid to the Company.
Section 4.08.
 
Waiver of Certain Covenants.
 
Except as otherwise specified as contemplated by
Section 2.02 for Securities of such Series, the Company
 
may, with respect
 
to the Securities of any Series,
omit in any particular instance to comply with any term,
 
provision or condition set forth in any covenant
provided herein or pursuant to Section 2.02(s) or Section 9.01(c)
 
for the benefit of the Holders of such
Series if before the time for such compliance the Holders
 
of at least 50% in principal amount of the
outstanding Securities of such Series shall, by an Act of such Holders,
 
either waive such compliance in
such instance or generally waive compliance with such term,
 
provision or condition, but no such wavier
shall extend to or affect such term, provision
 
or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations
 
of the Company and the duties of the Trustee
 
in
respect of such term, provision or condition shall remain
 
in full force and effect.
ARTICLE 5
S
UCCESSORS
Section 5.01.
 
When Company May Merge, Etc.
 
The Company shall not consolidate with or
merge into, or convey,
 
transfer or lease all or substantially all of its properties and
 
assets to, any Person
(a “successor person”), and may not permit any Person
 
to merge into, or convey,
 
transfer or lease its
properties and assets substantially as an entirety to, the Company,
 
unless:
(a)
 
either the Company shall be the continuing corporation or the
 
successor person (if other
than the Company) is a corporation, partnership, trust
 
or other entity organized and validly existing under
the laws of the United States of America, any State thereof
 
or the District of Columbia and expressly
assumes the Company’s obligations on the Securities
 
and under this Indenture; and
(b)
 
immediately after giving effect to the transaction, no
 
Default or Event of Default, shall have
occurred and be continuing.
The Company shall deliver to the Trustee
 
prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect
 
and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
Section 5.02.
 
Successor Corporation Substituted.
 
The successor person formed by such
consolidation or into which the Company is merged or
 
to which such transfer or lease is made shall
succeed to and be substituted for,
 
and may exercise every right and power of, the Company
 
under this
Indenture with the same effect as if such successor
 
person had been named as the Company herein, and
thereafter (except in the case of a lease to another Person)
 
the predecessor corporation shall be relieved
of all obligations and covenants under the Indenture and the
 
Securities and, in the event of such
conveyance or transfer, any
 
such predecessor corporation may be dissolved and liquidated.
ARTICLE 6
D
EFAULTS AND
R
EMEDIES
Section 6.01.
 
Events of Default.
“Event of Default,” wherever used herein with respect to
 
Securities of any Series, means any one
of the following events, unless in the establishing Board Resolution,
 
supplemental indenture or Officers’
Certificate, it is provided that such Series shall not have the
 
benefit of said Event of Default:
(a)
 
a default in the payment of any interest on any Security
 
of that Series when it becomes
due and payable, and continuance of such default for a period
 
of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee
 
or with a Paying Agent prior to the expiration
24
of such period of 30 days); provided that, a valid extension of
 
an interest payment period by the Company
in accordance with the terms of such Securities shall not
 
constitute a failure to pay interest; or
(b)
 
a default in the payment of the principal of, or premium,
 
if any, on, any
 
Security of that
Series when due at its Maturity; or
(c)
 
a default in the deposit of any sinking fund payment, when
 
and as due in respect of any
Security of that Series; or
(d)
 
a default, subject to the provisions in Section 4.08, in the
 
performance or breach of any
covenant or warranty of the Company in this Indenture
 
(other than a covenant or warranty that has been
included in this Indenture solely for the benefit of Series
 
of Securities other than that Series), which
default continues uncured for a period of 90 days after
 
there has been given, by registered or certified
mail, to the Company by the Trustee
 
or to the Company and the Trustee by
 
the Holders of at least 25% in
principal amount of the outstanding Securities of that Series
 
a written notice specifying such default or
breach and requiring it to be remedied and stating that such
 
notice is a “Notice of Default” hereunder; or
(e)
 
the Company pursuant to or within the meaning of any Bankruptcy
 
Law:
(i)
 
commences a voluntary case,
(ii)
 
consents to the entry of an order for relief against it in
 
an involuntary case,
(iii)
 
consents to the appointment of a Custodian of it or for
 
all or substantially all of its
property,
(iv)
 
makes a general assignment for the benefit of its creditors,
 
or
(v)
 
generally is unable to pay its debts as the same become
 
due; or
(f)
 
a court of competent jurisdiction enters an order or decree
 
under any Bankruptcy Law that:
(i)
 
is for relief against the Company in an involuntary case,
(ii)
 
appoints a Custodian of the Company for all or substantially
 
all of its property,
 
or
(iii)
 
orders the liquidation of the Company,
 
and the order or decree remains unstayed
and in effect for 60 days; or
(g)
 
any other Event of Default provided with respect to Securities
 
of that Series, which is
specified in a Board Resolution, a supplemental indenture
 
hereto or an Officers’ Certificate, in accordance
with Section 2.02(s).
The term “Bankruptcy Law” means title 11,
 
U.S. Code or any similar Federal or State law for the
relief of debtors. The term “Custodian” means any receiver,
 
trustee, assignee, liquidator or similar official
under any Bankruptcy Law.
Section 6.02.
 
Acceleration of Maturity; Rescission and Annulment.
 
If an Event of Default
described in Section 6.01(a), (b) or (c) occurs and is continuing,
 
then, and in each and every such case,
except for any series of Securities the principal of which
 
shall have already become due and payable,
either the Trustee or the Holders of not
 
less than 25% in aggregate principal amount of the
 
Securities of
each such affected series then outstanding hereunder
 
(each such series voting as a separate class) by
notice in writing to the Company (and to the Trustee
 
if given by Securityholders), may declare the entire
principal (or, if the Securities
 
of such series are Discount Securities, such portion of the principal
 
amount
as may be specified in the terms of such series) of all
 
Securities of such series, and the interest accrued
25
thereon, if any, to be
 
due and payable immediately,
 
and upon any such declaration, the same shall
become immediately due and payable.
Except as otherwise provided in the terms of any series
 
of Senior Securities pursuant to Section
2.02, if an Event of Default described in Section 6.01(d)
 
or (g) above with respect to all series of the
Senior Securities then outstanding, occurs and is continuing,
 
then, and in each and every such case,
unless the principal of all of the Senior Securities shall
 
have already become due and payable, either the
Trustee or the Holders of not less than
 
25% in aggregate principal amount of all of the Senior
 
Securities
then outstanding hereunder (treated as one class) by notice
 
in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal
 
(or, if the Senior Securities
 
of any series are
Discount Securities, such portion of the principal amount as may
 
be specified in the terms of such series)
of all of the Senior Securities then outstanding, and the interest
 
accrued thereon, if any,
 
to be due and
payable immediately,
 
and upon such declaration, the same shall become
 
immediately due and payable. If
an Event of Default described in Section 6.01(e) or 6.01(f)
 
above occurs and is continuing, then the
principal amount of all the Senior Securities then outstanding,
 
and the interest accrued thereon, if any,
shall become and be immediately due and payable without
 
any declaration or other act on the part of the
Trustee or any Holder.
Except as otherwise provided in the terms of any series
 
of Subordinated Securities pursuant to
Section 2.02,, if an Event of Default described in Section
 
6.01(d) or (g) above with respect to all series of
Subordinated Securities then outstanding, occurs and
 
is continuing, then, and in each and every such
case, unless the principal of all of the Subordinated Securities shall
 
have already become due and
payable, either the Trustee or the Holders
 
of not less than 25% in aggregate principal amount of
 
all of the
Subordinated Securities then outstanding hereunder (treated
 
as one class) by notice in writing to the
Company (and to the Trustee if given by
 
Securityholders), may declare the entire principal (or,
 
if the
Subordinated Securities of any series are Discount
 
Securities, such portion of the principal amount as
may be specified in the terms of such series) of all of the
 
Subordinated Securities then outstanding, and
the interest accrued thereon, if any,
 
to be due and payable immediately,
 
and upon such declaration, the
same shall become immediately due and payable.
If an Event of Default described in Section 6.01(d) or (g)
 
occurs and is continuing, which Event of
Default is with respect to less than all series of Senior
 
Securities then outstanding, then, and in each and
every such case, except for any series of Senior Securities the
 
principal of which shall have already
become due and payable, either the Trustee
 
or the Holders of not less than 25% in aggregate principal
amount of the Senior Securities of each such affected
 
series then outstanding hereunder (each such
series voting as a separate class) by notice in writing to
 
the Company (and to the Trustee
 
if given by
Securityholders), may declare the entire principal (or,
 
if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may
 
be specified in the terms of such series)
of all Securities of such series, and the interest accrued thereon,
 
if any, to be due
 
and payable
immediately, and upon
 
any such declaration, the same shall become immediately
 
due and payable.
If an Event of Default described in Section 6.01(d) or (g)
 
occurs and is continuing, which Event of
Default is with respect to less than all series of Subordinated
 
Securities then outstanding, then, and in
each and every such case, except for any series of Subordinated
 
Securities the principal of which shall
have already become due and payable, either the Trustee
 
or the Holders of not less than 25% in
aggregate principal amount of the Subordinated Securities
 
of each such affected series then outstanding
hereunder (each such series voting as a separate class)
 
by notice in writing to the Company (and to the
Trustee if given by Securityholders), may
 
declare the entire principal (or,
 
if the Securities of such series
are Discount Securities, such portion of the principal amount
 
as may be specified in the terms of such
series) of all Securities of such series, and the interest
 
accrued thereon, if any,
 
to be due and payable
immediately, and upon
 
any such declaration, the same shall become immediately
 
due and payable.
If an Event of Default specified in Section 6.01(e) or (f)
 
shall occur, the principal amount
 
(or
specified amount) of and accrued and unpaid interest, if any,
 
on all outstanding Securities shall ipso facto
become and be immediately due and payable without
 
any declaration or other act on the part of the
Trustee or any Holder.
26
At any time after such a declaration of acceleration with respect
 
to any Series has been made
and before a judgment or decree for payment of the money
 
due has been obtained by the Trustee
 
as
hereinafter in this Article provided, the Holders of a majority
 
in principal amount of the outstanding
Securities of that Series, by written notice to the Company and
 
the Trustee, may rescind and
 
annul such
declaration and its consequences if:
(a)
 
the Company has paid or deposited with the Trustee
 
a sum sufficient to pay
(i)
 
all overdue interest, if any,
 
on all Securities of that Series,
(ii)
 
the principal of any Securities of that Series which have
 
become due otherwise
than by such declaration of acceleration and interest thereon
 
at the rate or rates prescribed
therefor in such Securities,
(iii)
 
to the extent that payment of such interest is lawful,
 
interest upon any overdue
principal and overdue interest at the rate or rates prescribed
 
therefor in such Securities,
 
(iv)
 
all sums paid or advanced by the Trustee
 
hereunder and the reasonable
compensation, expenses, disbursements and advances
 
of the Trustee, its agents and counsel,
and
(v)
 
all Events of Default with respect to Securities of that Series,
 
other than the non-
payment of the principal of Securities of that Series which
 
have become due solely by such
declaration of acceleration, have been cured or waived
 
as provided in Section 6.13.
No such rescission shall affect any subsequent
 
Default or impair any right consequent thereon.
Section 6.03.
 
Collection of Indebtedness and Suits for Enforcement by
 
Trustee.
 
The Company
covenants that if
(a)
 
default is made in the payment of any interest on any
 
Security when such interest becomes
due and payable and such default continues for a period of
 
30 days, or
(b)
 
default is made in the payment of principal of any Security
 
when due at the Maturity
thereof, or
(c)
 
default is made in the deposit of any sinking fund payment
 
when and as due by the terms
of a Security, then, the
 
Company will, upon demand of the Trustee,
 
pay to it, for the benefit of the Holders
of such Securities, the whole amount then due and payable
 
on such Securities for principal and interest
and, to the extent that payment of such interest shall be legally
 
enforceable, interest on any overdue
principal or any overdue interest, at the rate or rates prescribed
 
therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient
 
to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
 
and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon
 
such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial
 
proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to
 
judgment or final decree and may enforce the
same against the Company or any other obligor upon such
 
Securities and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the
 
property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of
 
any Series occurs and is continuing, the
Trustee may in its discretion proceed to
 
protect and enforce its rights and the rights of the Holders
 
of
Securities of such Series by such appropriate judicial
 
proceedings as the Trustee shall deem
 
most
27
effectual to protect and enforce any such rights, whether
 
for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of
 
any power granted herein, or to enforce any other
proper remedy.
Section 6.04.
 
Trustee May File Proofs of Claim.
 
In case of the pendency of any receivership,
insolvency, liquidation,
 
bankruptcy,
 
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
 
upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
 
(irrespective of whether the principal of
the Securities shall then be due and payable as therein
 
expressed or by declaration or otherwise and
irrespective of whether the Trustee
 
shall have made any demand on the Company for the
 
payment of
overdue principal or interest) shall be entitled and empowered,
 
by intervention in such proceeding or
otherwise,
(a)
 
to file and prove a claim for the whole amount of principal
 
and interest owing and unpaid in
respect of the Securities and to file such 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 of the Holders allowed in such
judicial proceeding, and
(b)
 
to collect and receive any moneys or other property payable
 
or deliverable on any such
claims and to distribute the same, and any custodian, receiver,
 
assignee, trustee, liquidator,
 
sequestrator
or other similar official in any such judicial proceeding
 
is hereby authorized by each Holder to make such
payments to the Trustee and, in the
 
event that the Trustee shall consent
 
to the making of such payments
directly to the Holders, to pay to the Trustee
 
any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee,
 
its agents and counsel, and any other amounts
due the Trustee under Section 7.07
Nothing herein contained shall be deemed to authorize the Trustee
 
to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization,
 
arrangement, adjustment or
composition affecting the Securities or the rights
 
of any
Holder thereof or to authorize the Trustee
 
to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.05.
 
Trustee May Enforce Claims without
 
Possession of Securities.
 
All rights of action
and claims under this Indenture or the Securities may be
 
prosecuted and enforced by the Trustee
 
without
the possession of any of the Securities or the production thereof
 
in any proceeding relating thereto, and
any such proceeding instituted by the Trustee
 
shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
 
the payment of the reasonable
compensation, expenses, disbursements and advances
 
of the Trustee, its agents and counsel,
 
be for the
ratable benefit of the Holders of the Securities in respect
 
of which such judgment has been recovered.
Section 6.06.
 
Application of Money Collected.
 
Any money or property collected by the Trustee
pursuant to this Article shall be applied in the following
 
order, at the date or dates fixed
 
by the Trustee
and, in case of the distribution of such money or property
 
on account of principal or interest, upon
presentation of the Securities and the notation thereon of the
 
payment if only partially paid and upon
surrender thereof if fully paid:
First: To
 
the payment of all amounts due the Trustee
 
under Section 7.07; and
Second: To
 
the payment of the amounts then due and unpaid for
 
principal of and interest on the
Securities in respect of which or for the benefit of which
 
such money has been collected, ratably,
 
without
preference or priority of any kind, according to the amounts
 
due and payable on such Securities for
principal and interest, respectively; and
28
Third: To
 
the Company.
Section 6.07.
 
Limitation on Suits.
 
No Holder of any Security of any Series shall have any
 
right
to institute any proceeding, judicial or otherwise, with respect
 
to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder,
 
unless
(a)
 
such Holder has previously given written notice to the
 
Trustee of an Event of Default and
the continuance thereof with respect to the Securities
 
of that Series;
(b)
 
the Holders of not less than 25% in principal amount of
 
the outstanding Securities of that
Series shall have made written request to the Trustee
 
to institute proceedings in respect of such Event of
Default in its own name as Trustee
 
hereunder;
(c)
 
such Holder or Holders have offered to the Trustee
 
reasonable security or indemnity
satisfactory to the Trustee against the expenses
 
and liabilities to be incurred in compliance with such
request;
(d)
 
the Trustee for 60 days after its receipt
 
of such notice, request and offer of indemnity
 
has
failed to institute any such proceeding; and
(e)
 
no direction inconsistent with such written request has
 
been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount
 
of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders
 
shall have any right in any manner
whatever by virtue of, or by availing of, any provision of
 
this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek
 
to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
 
except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
Section 6.08.
 
Unconditional Right of Holders to Receive Principal and Interest.
 
Notwithstanding any other provision in this Indenture, the Holder
 
of any Security shall have the right,
which is absolute and unconditional, to receive payment of the
 
principal of and interest, if any,
 
on such
Security on the Stated Maturity or Stated Maturities expressed
 
in such Security (or,
 
in the case of
redemption, on the redemption date) and to institute suit
 
for the enforcement of any such payment, and
such rights shall not be impaired without the consent of
 
such Holder.
Section 6.09.
 
Restoration of Rights and Remedies.
 
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this
 
Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been
 
determined adversely to the Trustee
 
or to such
Holder, then and in every such
 
case, subject to any determination in such proceeding, the
 
Company, the
Trustee and the Holders shall be restored
 
severally and respectively to their former positions
 
hereunder
and thereafter all rights and remedies of the Trustee
 
and the Holders shall continue as though no such
proceeding had been instituted.
Section 6.10.
 
Rights and Remedies Cumulative.
 
Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost
 
or stolen Securities in Section 2.08, no right or
remedy herein conferred upon or reserved to the Trustee
 
or to the Holders is intended to be exclusive of
any other right or remedy,
 
and every right and remedy shall, to the extent permitted by
 
law, be cumulative
and in addition to every other right and remedy given
 
hereunder or now or hereafter existing at law or
 
in
equity or otherwise. The assertion or employment of
 
any right or remedy hereunder,
 
or otherwise, shall
not prevent the concurrent assertion or employment of any
 
other appropriate right or remedy.
Section 6.11.
 
Delay or Omission Not Waiver.
 
No delay or omission of the Trustee
 
or of any
Holder of any Securities to exercise any right or remedy
 
accruing upon any Event of Default shall impair
29
any such right or remedy or constitute a waiver of any
 
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
 
Trustee or to the Holders may
 
be exercised
from time to time, and as often as may be deemed expedient,
 
by the Trustee or by the Holders,
 
as the
case may be.
Section 6.12.
 
Control by Holders.
 
The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right
 
to 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 the Trustee, with respect
 
to the Securities of such Series, provided that
(a)
 
such direction shall not be in conflict with any rule of law
 
or with this Indenture,
(b)
 
the Trustee may take any other action
 
deemed proper by the Trustee which
 
is not
inconsistent with such direction, and
(c)
 
subject to the provisions of Section 6.01, the Trustee
 
shall have the right to decline to
follow any such direction if the Trustee
 
in good faith shall, by a Trust Officer
 
of the Trustee, determine that
the proceeding so directed would involve the Trustee
 
in personal liability.
Section 6.13.
 
Waiver of Past Defaults.
 
The Holders of not less than a majority in principal
amount of the outstanding Securities of any Series may
 
on behalf of the Holders of all the Securities of
such Series waive any past Default hereunder with respect
 
to such Series and its consequences, except
a Default in the payment of the principal of or interest on any
 
Security of such Series (provided, however,
that the Holders of a majority in principal amount of the
 
outstanding Securities of any Series may rescind
an acceleration and its consequences, including any related
 
payment default that resulted from such
acceleration). Upon any such waiver,
 
such Default shall cease to exist, and any Event of
 
Default arising
therefrom shall be deemed to have been cured, for every
 
purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any
 
right consequent thereon.
Section 6.14.
 
Undertaking for Costs.
 
All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to
 
have agreed, that any court may in its
discretion require, 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,
 
suffered or omitted by it as Trustee,
 
the filing by any party
litigant in such suit of an undertaking to pay the costs of such
 
suit, and that such court may in its
discretion assess reasonable costs, including reasonable
 
attorneys’ fees, against any party litigant in
such suit, having due regard to the merits and good faith
 
of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply
 
to any suit instituted by the Company,
 
to any suit
instituted by the Trustee, to any suit instituted
 
by any Holder, or group
 
of Holders, holding in the
aggregate more than 10% in principal amount of the outstanding
 
Securities of any Series, or to any suit
instituted by any Holder for the enforcement of the payment of the
 
principal of or interest on any Security
on or after the Stated Maturity or Stated Maturities expressed
 
in such Security (or, in the case
 
of
redemption, on the redemption date).
ARTICLE 7
T
RUSTEE
Section 7.01.
 
Duties of Trustee.
 
(a) If an Event of Default has occurred and is continuing,
 
the
Trustee shall exercise the rights and powers
 
vested in it by this Indenture and use the same degree
 
of
care and skill in their exercise as a prudent Person would
 
exercise or use under the circumstances in the
conduct of such Person’s own affairs.
(a)
 
Except during the continuance of an Event of Default:
30
(i)
 
the Trustee need perform only those duties
 
that are specifically set forth in this
Indenture and no other implied covenants or obligations shall
 
be read into this Indenture against
the Trustee; and
(ii)
 
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; however, the Trustee
 
shall examine such certificates and opinions to
 
determine
whether or not they conform to the requirements of this
 
Indenture.
(b)
 
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:
(i)
 
this paragraph does not limit the effect of paragraph
 
(a) of this Section;
(ii)
 
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;
and
(iii)
 
the Trustee shall not be liable with respect to
 
any action it takes or omits to take
with respect to Securities of any Series in good faith in accordance
 
with the direction of the
Holders of a majority in principal amount of the outstanding
 
Securities of such Series.
(c)
 
Every provision of this Indenture that in any way relates
 
to the Trustee is subject to
paragraph (a), (b), (c) and (g) of this Section.
(d)
 
The Trustee shall not be liable for interest
 
on any money received by it except as the
Trustee may agree in writing with the Company.
(e)
 
Money held in trust by the Trustee need
 
not be segregated from other funds except to the
extent required by law.
(f)
 
No provision of this Indenture shall require the Trustee
 
to expend or risk its own funds or
otherwise incur any financial liability in the performance
 
of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
 
believing that repayment of such funds
or adequate indemnity against such risk is not reasonably assured
 
to it.
(g)
 
Every provision of this Indenture relating to the conduct
 
or affecting the liability of or
affording protection to the Trustee
 
shall be subject to the provisions of this Section
 
and to the provisions
of the TIA.
Section 7.02.
 
Rights of Trustee.
 
(a) The Trustee may rely on any
 
document 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.
(a)
 
Before the Trustee acts or refrains from acting,
 
it may require an Officers’ Certificate or an
Opinion of Counsel or both. The Trustee
 
shall not be liable for any action it takes or omits to take in
 
good
faith in reliance on the Officers’ Certificate or Opinion
 
of Counsel.
(b)
 
The Trustee may act through agents
 
and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(c)
 
The Trustee shall not be liable for any
 
action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
31
(d)
 
The Trustee may consult with counsel,
 
and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Securities
 
shall be full and complete authorization and
protection from liability in respect to any action taken, omitted
 
or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such counsel.
(e)
 
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, consent, order,
approval, bond, debenture, note 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.
(f)
 
The Trustee shall be under no obligation
 
to exercise any of the rights or powers vested
 
in it
by this Indenture at the request, order or direction of any
 
of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have
 
offered to the Trustee security
 
or indemnity
satisfactory to the Trustee against the costs,
 
expenses, losses and liabilities which may be incurred
therein or thereby.
(g)
 
The rights, privileges, protections, immunities and benefits given
 
to the Trustee, including,
without limitation, its rights to be indemnified, are extended to,
 
and shall be enforceable by,
 
the Trustee in
each of its capacities hereunder,
 
and to each agent, custodian and other Person
 
employed to act
hereunder.
(h)
 
The Trustee may request that the Company
 
deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers
 
authorized at such time to take specified actions pursuant to
this Indenture, which Officers’ Certificate may be signed
 
by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized
 
in any such certificate previously delivered
and not superseded.
(i)
 
The permissive rights of the Trustee
 
enumerated herein shall not be construed as duties.
(i)
 
Delivery of reports, information and documents to the Trustee
 
under Section 4.02
is for informational purposes only and the Trustee’s
 
receipt of the foregoing shall not constitute
constructive notice of any information contained therein or
 
determinable from information
contained therein, including the Company’s compliance
 
with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively
 
on Officers’ Certificates).
(ii)
 
Notwithstanding anything in this Indenture to the contrary,
 
neither the Trustee nor
any Agent shall be responsible or liable to any person for
 
any indirect, special, punitive or
consequential damage or loss (including but not limited
 
to lost profits) whatsoever,
 
even if the
Trustee has been informed of the likelihood
 
thereof and regardless of the form of action.
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 an Affiliate
with the same rights it would have if it were not Trustee.
 
Any Agent may do the same with like rights. The
Trustee is also subject to Sections
 
7.10 and 7.11.
Section 7.04.
 
Trustee’s Disclaimer.
 
The Trustee shall not be responsible
 
and makes no
representation as to the validity or adequacy of this Indenture
 
or the Securities, it shall not be accountable
for the Company’s use of the proceeds from the
 
Securities, and it shall not be responsible for any
statement in the Securities or in any document issued
 
in connection with the sale of the Securities or in
the Securities other than its certificate of authentication.
Section 7.05.
 
Notice of Defaults.
 
If a Default or Event of Default occurs and
 
is continuing with
respect to the Securities of any Series and if it is known
 
to a Trust Officer of the Trustee,
 
the Trustee shall
send to each Securityholder of the Securities of that Series and,
 
if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper,
 
notice of a Default or Event of Default within 90
32
days after it occurs or 30 days after it is known to a Trust
 
Officer or written notice of it is received by the
Trustee. Except in the case of a Default
 
or Event of Default in payment of principal, premium,
 
if any,
 
of or
interest on any Security of any Series or in payment of any
 
redemption obligation, the Trustee
 
may
withhold the notice if and so long as its corporate trust committee
 
or a committee of its Trust Officers
 
in
good faith determines that withholding the notice is in the interests
 
of Securityholders of that Series.
Section 7.06.
 
Reports by Trustee to Holders.
 
As promptly as practicable after each May 15
beginning with [___], and in any event prior to July 15
 
in each year, the Trustee
 
shall transmit by mail or
by electronic transmission to all Securityholders, as their names
 
and addresses appear on the register
kept by the Registrar and, if any Bearer Securities are
 
outstanding, publish in an Authorized Newspaper,
a brief report dated as of May 15, each year if and to the
 
extent required by TIA § 313(a). The Trustee
shall also comply with TIA § 313(b) and TIA § 313(c).
A copy of each report at the time of its sending to Securityholders
 
of any Series shall be filed with
the SEC and each stock exchange (if any) on which the
 
Securities of that Series are listed. The Company
shall promptly notify the Trustee when
 
Securities of any Series are listed on any stock exchange
 
and of
any delisting thereof.
Section 7.07.
 
Compensation and Indemnity.
 
The Company shall pay to the Trustee
 
from time
to time such compensation as the Company and the Trustee
 
shall from time to time agree in writing. The
Trustee’s compensation shall
 
not be limited by any law on compensation of a trustee of
 
an express trust.
The Company shall reimburse the Trustee
 
upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to
 
the compensation for its services. Such
expenses shall include the reasonable compensation
 
and expenses, disbursements and advances of the
Trustee’s agents, counsel,
 
accountants and experts. The Company shall indemnify
 
the Trustee, its
officers, directors, employees and agents, and hold
 
each of them harmless, against any and all
 
loss,
liability or expense (including reasonable attorneys’ fees)
 
incurred by or in connection with the offer and
sale of the Securities or the administration of this trust
 
and the performance of its duties hereunder.
 
The
Trustee shall notify the Company of any
 
claim for which it may seek indemnity promptly
 
upon obtaining
actual knowledge thereof; provided, however,
 
that any failure so to notify the Company shall not relieve
the Company of its indemnity obligations hereunder.
 
The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company’s
 
expense in the defense. Such
indemnified parties may have separate counsel and the
 
Company shall pay the fees and expenses of
such counsel; provided, however,
 
that the Company shall not be required to pay such
 
fees and expenses
if it assumes such indemnified parties’ defense and, in
 
such indemnified parties’ reasonable judgment,
there is no conflict of interest between the Company and such
 
parties in connection with such defense.
The Company need not reimburse any expense or
 
indemnify against any loss, liability or expense
incurred by an indemnified party through such party’s
 
own willful misconduct and gross negligence.
To
 
secure the Company’s payment obligations
 
in this Section, the Trustee shall have
 
a lien prior
to the Securities of any Series on all money or property
 
held or collected by the Trustee other than
 
money
or property held in trust to pay principal of and interest
 
and any liquidated damages on particular
Securities of that Series.
The Company’s payment obligations pursuant to
 
this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this
 
Indenture under any bankruptcy law or the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders
 
services after an Event of Default specified in
Section 6.01(f) or (g) occurs, the expenses and the compensation
 
for the services are intended to
constitute expenses of administration under any Bankruptcy
 
Law.
Section 7.08.
 
Replacement of Trustee.
 
The Trustee may resign with respect
 
to the Securities
of one or more Series at any time by so notifying the Company.
 
The Holders of a majority in principal
amount of the Securities of any Series may remove the
 
Trustee with respect to that Series by
 
so notifying
33
the Trustee and may appoint a successor
 
Trustee. The Company shall remove
 
the Trustee with respect
to Securities of one or more Series if:
(a)
 
the Trustee fails to comply with Section
 
7.10;
(b)
 
the Trustee is adjudged bankrupt or
 
insolvent;
(c)
 
a receiver or other public officer takes charge of
 
the Trustee or its property; or
(d)
 
the Trustee otherwise becomes incapable
 
of acting.
If the Trustee resigns, is removed
 
by the Company or by the Holders of a majority in principal
amount of the Securities of any Series and such Securityholders
 
do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists
 
in the office of Trustee for
 
any reason (the Trustee in such event
being referred to herein as the retiring Trustee),
 
the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written
 
acceptance of its appointment to the retiring Trustee
and to the Company.
 
Thereupon 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
 
with respect to each
Series of Securities for which it is acting as Trustee
 
under this Indenture. The successor Trustee
 
shall
send a notice of its succession to each Securityholder
 
of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an
 
Authorized Newspaper.
 
The retiring Trustee
shall promptly transfer all property held by it as Trustee
 
to the successor Trustee, subject
 
to the lien
provided for in Section 7.07.
If a successor Trustee with respect to the
 
Securities of any one or more Series does not take
office within 60 days after the retiring Trustee
 
resigns or is removed, the retiring Trustee
 
or the Holders of
10% in principal amount of the Securities of the applicable Series
 
may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities
 
of any one or more Series fails to comply with
 
Section
7.10, any Securityholder of the applicable Series may
 
petition any court of competent jurisdiction for the
removal of the Trustee and the appointment
 
of a successor Trustee.
Notwithstanding the replacement of the Trustee
 
pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit
 
of the retiring Trustee.
Section 7.09.
 
Successor Trustee by Merger,
 
etc.
 
If the Trustee consolidates with, merges
 
or
converts into, or transfers all or substantially all of its corporate
 
trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
 
corporation without any further
act shall be the successor Trustee.
In case at the time such successor or successors by
 
merger, conversion or consolidation
 
to the
Trustee with respect to the Securities of
 
any one or more Series shall succeed to the trusts created
 
by
this Indenture any of the Securities of the applicable Series
 
shall have been authenticated but not
delivered, any such successor to such Trustee
 
may adopt the certificate of authentication of any
predecessor trustee, and deliver such Securities of the applicable
 
Series so authenticated; and in case at
that time any of the Securities of such Series shall not
 
have been authenticated, any successor to the
Trustee may authenticate such Securities
 
either in the name of any predecessor hereunder or
 
in the
name of the successor to the Trustee; and
 
in all such cases such certificates shall have the full force
which it is anywhere in the Securities of such Series or
 
in this Indenture provided that the certificate of the
Trustee shall have.
34
Section 7.10.
 
Eligibility; Disqualification.
 
The Trustee shall at all times satisfy the
 
requirements
of TIA § 310(a). The Trustee shall have
 
a combined capital and surplus of at least
 
$100,000,000 as set
forth in its most recent published annual report of condition.
 
The Trustee shall comply with TIA
 
§ 310(b);
provided, however, that there
 
shall be excluded from the operation of TIA § 310(b)(1)
 
any indenture or
indentures under which other securities or certificates
 
of interest or participation in other securities of the
Company are outstanding if the requirements for such exclusion
 
set forth in TIA § 310(b)(1) are met.
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.
ARTICLE 8
S
ATISFACTION AND
D
ISCHARGE
;
D
EFEASANCE
Section 8.01.
 
Satisfaction and Discharge of Indenture.
 
This Indenture, with respect to
Securities of any Series (if all Series issued under this Indenture
 
are not to be effected) shall, upon
Company Order, cease to
 
be of further effect (except as hereinafter provided
 
in this Section 8.01), and
the Trustee, at the expense of the Company,
 
shall execute such instruments reasonably requested
 
by the
Company acknowledging satisfaction and discharge of
 
this Indenture, when
(a)
 
Either
(i)
 
all Securities of such Series theretofore authenticated
 
and delivered (other than
(A) Securities that have been destroyed, lost or stolen
 
and that have been replaced or paid or (B)
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,
as provided in Sections 2.05 and 4.07) have been delivered
 
to the Trustee for cancellation; or
(ii)
 
all such Securities of such Series not theretofore delivered
 
to the Trustee for
cancellation:
(A)
 
have become due and payable, or
(B)
 
will become due and payable at their Stated 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,
 
or
(D)
 
are deemed paid and discharged pursuant to Section
 
8.03, as
applicable;
and the Company,
 
in the case of (A), (B) or (C) above, has deposited or caused
 
to be deposited with the
Trustee as trust funds in trust an amount
 
sufficient for the purpose of paying and
 
discharging the entire
indebtedness on such Securities not theretofore delivered
 
to the Trustee for cancellation, for
 
principal of,
premium, if any, and
 
interest on, and any mandatory sinking fund payments to
 
the date of such deposit (in
the case of Securities of such Series which have become due
 
and payable on or prior to the date of such
deposit) or to the Stated Maturity or redemption date,
 
as the case may be;
(iii)
 
the Company has paid or caused to be paid all other sums
 
payable hereunder by
the Company; and
(iv)
 
the Company has delivered to the Trustee
 
an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent
 
herein provided for relating to the
satisfaction and discharge of this Indenture have been
 
complied with.
35
Notwithstanding the satisfaction and discharge of this Indenture,
 
the obligations of the Company
to the Trustee under Section 7.07, and,
 
if money shall have been deposited with the Trustee
 
pursuant to
clause (a) of this Section, the provisions of Sections 2.04, 2.07,
 
2.08, 4.07 (last paragraph only), 8.01,
8.02 and 8.05 shall survive.
Section 8.02.
 
Application of Trust Funds; Indemnification.
 
(a) Subject to the provisions of
Section 8.05, all money deposited with the Trustee
 
pursuant to Section 8.01, all money and U.S.
Government Obligations or Foreign Government Obligations
 
deposited with the Trustee pursuant
 
to
Section 8.03 or 8.04, and all money received by the Trustee
 
in respect of U.S. Government Obligations or
Foreign Government Obligations deposited with the Trustee
 
pursuant to Section 8.03 or 8.04, shall be
held in trust and applied by it, in accordance with the provisions
 
of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent
 
(including the Company if acting as its own
Paying Agent) as the Trustee may
 
determine, to the Persons entitled thereto, of the principal
 
and interest
for whose payment such money has been deposited with
 
or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as
 
contemplated by Sections 8.03 or 8.04.
(a)
 
The Company shall pay and shall indemnify the Trustee
 
against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations
 
or Foreign Government
Obligations deposited pursuant to Sections 8.03 or 8.04, or the
 
interest and principal received in respect
of such obligations other than any payable by or on behalf of Holders.
(b)
 
The Trustee shall deliver or pay to the
 
Company from time to time upon Company Request
any U.S. Government Obligations or Foreign Government Obligations
 
or money held by it as provided in
Sections 8.03 or 8.04 which, in the opinion of a nationally recognized
 
firm of independent certified public
accountants expressed in a written certification thereof
 
delivered to the Trustee, are then in excess
 
of the
amount thereof which then would have been required to be
 
deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations
 
or money were deposited or received. This
provision shall not authorize the sale by the Trustee
 
of any U.S. Government Obligations or Foreign
Government Obligations held under this Indenture.
Section 8.03.
 
Legal Defeasance of Securities of any Series.
 
Unless this Section 8.03 is
otherwise specified, pursuant to Section 2.02(x), to be inapplicable
 
to Securities of any Series, the
Company shall be deemed to have paid and discharged
 
the entire indebtedness on all the outstanding
Securities of such Series on the 91st day after the date of the
 
deposit referred to in subparagraph (d)
hereof, and the provisions of this Indenture, as it relates
 
to such outstanding Securities of such Series,
shall no longer be in effect (and the Trustee,
 
at the expense of the Company,
 
shall, at Company Request,
execute such instruments reasonably requested by the
 
Company acknowledging the same), except as to:
(a)
 
the rights of Holders of Securities of such Series to receive, from
 
the trust funds described
in subparagraph (d)
 
hereof, (i) payment of the principal of and each installment
 
of principal of and interest
on the outstanding Securities of such Series on the Stated
 
Maturity of such principal or installment of
principal or interest and (ii) the benefit of any mandatory
 
sinking fund payments applicable to the
Securities of such Series on the day on which such payments
 
are due and payable in accordance with
the terms of this Indenture and the Securities of such Series;
(b)
 
the provisions of Sections 2.04, 2.07, 2.08, 8.02, 8.03 and 8.05;
 
and
(c)
 
the rights, powers, trust and immunities of the Trustee
 
hereunder;
provided that, the following conditions shall have been
 
satisfied:
(d)
 
the Company shall have deposited or caused to be deposited
 
irrevocably with the Trustee
as trust funds in trust for the purpose of making the following
 
payments, specifically pledged as security
for and dedicated solely to the benefit of the Holders of
 
such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars (or
 
such other money or currencies as shall then be
36
legal tender in the United States) and/or U.S. Government Obligations,
 
or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other
 
than a composite currency), money and/or Foreign
Government Obligations, which through the payment of
 
interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment
 
and assuming no tax liability will be
imposed on such Trustee), not later than
 
one day before the due date of any payment of money,
 
an
amount in cash, sufficient, in the opinion of a nationally
 
recognized firm of independent public
accountants expressed in a written certification thereof
 
delivered to the Trustee, to pay and
 
discharge
each installment of principal (including mandatory sinking
 
fund or analogous payments) of and interest, if
any, on all the
 
Securities of such Series on the dates such installments
 
of interest or principal are due;
(e)
 
such deposit will not result in a breach or violation of, or
 
constitute a default under,
 
this
Indenture or any other agreement or instrument to which
 
the Company is a party or by which it is bound;
(f)
 
no Default or Event of Default with respect to the Securities
 
of such Series shall have
occurred and be continuing on the date of such deposit or
 
during the period ending on the 91st day after
such date;
(g)
 
the Company shall have delivered to the Trustee
 
an Officers’ Certificate and an Opinion of
Counsel from a nationally recognized law firm to the effect
 
that (i) the Company has received from, or
there has been published by,
 
the Internal Revenue Service a ruling, or (ii) since the
 
date of execution of
this Indenture, 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 confirm that, the 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, defeasance and discharge 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 if such deposit, defeasance and
discharge had not occurred;
(h)
 
the Company shall have delivered to the Trustee
 
an Officers’ Certificate stating that the
deposit 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;
(i)
 
such deposit shall not result in the trust arising from such
 
deposit constituting an
investment company (as defined in the Investment Company
 
Act of 1940, as amended), or such trust
shall be qualified under such Act or exempt from regulation
 
thereunder; and
(j)
 
the Company shall have delivered to the Trustee
 
an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided
 
for relating to the defeasance contemplated
by this Section 8.03 have been complied with.
Section 8.04.
 
Covenant Defeasance.
 
Unless this Section 8.04 is otherwise specified pursuant
to Section 2.02(x) to be inapplicable to Securities of any
 
Series, on and after the date of the deposit
referred to in subparagraph (a) hereof, the Company may
 
omit to comply with any term, provision or
condition set forth under Sections 4.02, 4.03, 4.04, 4.05 and 5.01
 
as well as any additional covenants
contained in a supplemental indenture hereto for a particular
 
Series of Securities or a Board Resolution or
an Officers’ Certificate delivered pursuant to Section
 
2.02(x) (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default under
 
Section 6.01) and the occurrence of
any event described in clause (e) of Section 6.01 shall
 
not constitute a Default or Event of Default
hereunder, with respect to the
 
Securities of such Series, provided that the following
 
conditions shall have
been satisfied:
(a)
 
with reference to this Section 8.04, the Company has
 
deposited or caused to be
irrevocably deposited (except as provided in Section 8.02(c))
 
with the Trustee as trust funds in trust,
specifically pledged as security for,
 
and dedicated solely to, the benefit of the Holders of such
 
Securities
(i) in the case of Securities of such Series denominated
 
in Dollars, cash in Dollars (or such other money
or currencies as shall then be legal tender in the United
 
States) and/or U.S. Government Obligations, or
37
(ii) in the case of Securities of such Series denominated in
 
a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which
 
through the payment of interest and
principal in respect thereof, in accordance with their terms,
 
will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee),
 
not later than one day before the due date of
any payment of money,
 
an amount in cash, sufficient, in the opinion of a
 
nationally recognized firm of
independent certified public accountants expressed in a written
 
certification thereof delivered to the
Trustee, to pay principal and interest,
 
if any, on and any
 
mandatory sinking fund in respect of the
Securities of such Series on the dates such installments
 
of interest or principal are due;
(b)
 
such deposit will not result in a breach or violation of, or
 
constitute a default under,
 
this
Indenture or any other agreement or instrument to which
 
the Company
 
is a party or by which it is bound;
(c)
 
no Default or Event of Default with respect to the Securities
 
of such Series shall have
occurred and be continuing on the date of such deposit;
(d)
 
the Company shall have delivered to the Trustee
 
an Opinion of Counsel from a nationally
recognized law firm confirming that 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 defeasance and will be
subject to federal income tax on the same amounts, in
 
the same manner and at the same times as would
have been the case if such deposit and defeasance
 
had not occurred;
(e)
 
the Company shall have delivered to the Trustee
 
an Officers’ Certificate stating the deposit
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; and
(f)
 
the Company shall have delivered to the Trustee
 
an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein
 
provided for relating to the defeasance
contemplated by this Section 8.04 have been complied
 
with.
Section 8.05.
 
Repayment to Company.
 
The Trustee and the Paying
 
Agent shall promptly pay
to the Company (or its designee) upon Company Order
 
any excess moneys or U.S. Government
Obligations held by them at any time. The provisions of
 
the last paragraph of Section 4.07 shall apply to
any money held by the Trustee or any
 
Paying Agent that remains unclaimed for two years after
 
the
Maturity of any Series or Securities for which money or
 
U.S. Government Obligations have been
deposited pursuant to Sections 8.03 and 8.04.
Section 8.06.
 
Effect of Subordination Provisions.
 
Unless otherwise expressly established
pursuant to Section 2.02 with respect to the Subordinated
 
Securities of any Series, the provisions of
Article 10 hereof, insofar as they pertain to the Subordinated
 
Securities of such series, and the
Subordination Provisions established pursuant to Section 2.02(i)
 
with respect to such Series, are hereby
expressly made subject to the provisions for satisfaction
 
and discharge and defeasance and covenant
defeasance set forth in this Article 8 and, anything herein
 
to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge
 
and defeasance and covenant defeasance pursuant to
this Article 8 with respect to the Securities of such Series, such
 
Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of
 
Article 10 or the Subordination Provisions
established pursuant to Section 2.02(i) with respect to
 
such series and, without limitation to the foregoing,
all moneys, U.S. Government Obligations and other securities
 
or property deposited with the Trustee
 
(or
other qualifying trustee) in trust in connection with such satisfaction
 
and discharge, defeasance or
covenant defeasance, as the case may be, and all proceeds therefrom
 
may be applied to pay the
principal of, premium, if any,
 
on, and mandatory sinking fund payments, if any with respect
 
to the
Securities of such Series as and when the same shall
 
become due and payable notwithstanding the
provisions of Article 10 or such Subordination Provisions.
38
ARTICLE 9
A
MENDMENTS AND
W
AIVERS
Section 9.01.
 
Without Consent of Holders.
 
The Company and the Trustee may
 
amend or
supplement this Indenture or the Securities of one or more
 
Series without the consent of any
Securityholder:
(a)
 
to convey, transfer,
 
assign, mortgage or pledge to the Trustee
 
as security for the Securities
of one or more Series any property or assets;
(b)
 
to comply with Article 5;
(c)
 
to add to the covenants of the Company such further covenants,
 
restrictions, conditions or
provisions as the Company and the Trustee
 
shall consider to be for the protection of the Holders
 
of
Securities, and to make the occurrence, or the occurrence
 
and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions
 
an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture
 
as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision
 
such supplemental indenture
may provide for a particular period of grace after default
 
(which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for
 
an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee
 
upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount
 
of the Securities of such series to
waive such an Event of Default;
(d)
 
add a guarantor or permit any Person to guarantee the
 
obligations under any Series of
Securities;
(e)
 
to cure any ambiguity,
 
defect or inconsistency;
(f)
 
to provide for the issuance of and establish the form and
 
terms and conditions of Securities
of any Series as permitted by this Indenture;
(g)
 
to conform to any provision of the “Description of the Notes”
 
section, “Description of Debt
Securities” section or other relevant section describing the terms
 
of the Securities of the applicable
prospectus, prospectus supplement, offering circular,
 
offering memorandum or other relevant offering
document;
(h)
 
to evidence and provide for the acceptance of appointment
 
hereunder by a successor
Trustee with respect to the Securities of
 
one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
 
facilitate the administration of the trusts
hereunder by more than one Trustee;
(i)
 
to provide for uncertificated Securities in addition to or in place
 
of certificated Securities;
(j)
 
to make any change that does not materially adversely
 
affect the rights of any
Securityholder; and
(k)
 
to comply with requirements of the SEC in order to effect
 
or maintain the qualification of
this Indenture under the TIA.
Section 9.02.
 
With Consent of Holders.
 
The Company and the Trustee may enter
 
into a
supplemental indenture with the written consent of the
 
Holders of at least a majority in principal amount of
the outstanding Securities of each Series affected
 
by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange
 
offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any
 
manner or eliminating any of the provisions of this
39
Indenture or of any supplemental indenture or of modifying
 
in any manner the rights of the
Securityholders of each such Series. Except as provided in
 
Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities
 
of each Series affected by such waiver by notice
to the Trustee (including consents obtained
 
in connection with a tender offer or exchange offer
 
for the
Securities of such Series) may waive compliance by the
 
Company with any provision of this Indenture or
the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders
 
of Securities under this Section 9.02 to
approve the particular form of any proposed supplemental
 
indenture or waiver, but
 
it shall be sufficient if
such consent approves the substance thereof. After a supplemental
 
indenture or waiver under this
section becomes effective, the Company shall send to
 
the Holders of Securities affected thereby and,
 
if
any Bearer Securities affected thereby are outstanding,
 
publish on one occasion in an Authorized
Newspaper, a notice briefly
 
describing the supplemental indenture or waiver.
 
Any failure by the Company
to send or publish such notice, or any defect therein, shall
 
not, however, in any way
 
impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.03.
 
Limitations.
 
Without the consent of each Securityholder affected,
 
an amendment
or waiver may not:
(a)
 
extend the final maturity of any Security;
(b)
 
reduce the principal amount thereof, or premium thereon,
 
if any;
(c)
 
reduce the rate or extend the time of payment of interest
 
thereon,
(d)
 
reduce any amount payable on redemption thereof;
(e)
 
make the principal thereof (including any amount in respect
 
of original issue discount), or
premium thereon, if any,
 
or interest thereon payable in any coin or currency other
 
than that provided in
the Securities or in accordance with the terms thereof;
(f)
 
reduce the amount of the principal of a Discount Security that
 
would be due and payable
upon an acceleration of the maturity thereof pursuant to Section
 
6.02 or the amount thereof provable in
bankruptcy pursuant to Section 6.04;
(g)
 
in the case of Subordinated Securities of any series, modify
 
any of the Subordination
Provisions or the definition of “Senior Indebtedness”
 
relating to such series in a manner adverse to the
holders of such Subordinated Securities;
(h)
 
alter the provisions of Sections 11.15
 
or 11.16;
(i)
 
impair or affect the right of any Securityholder to
 
institute suit for the payment thereof when
due or, if the Securities provide
 
therefor, any right of repayment
 
at the option of the Securityholder;
(j)
 
reduce the aforesaid percentage of Securities of any Series, the
 
consent of the Holders of
which is required for any such supplemental indenture, or
 
the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this
 
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(k)
 
modify any provision of this Section 9.03.
Section 9.04.
 
Compliance with Trust Indenture
 
Act.
 
Every amendment to this Indenture or the
Securities of one or more Series shall be set forth in a
 
supplemental indenture hereto that complies with
the TIA as then in effect.
40
Section 9.05.
 
Revocation and Effect of Consents.
 
Until an amendment or waiver becomes
effective, a consent to it by a Holder of a Security
 
is a continuing consent by 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.
 
However, any such Holder
or subsequent Holder may revoke the consent as to
 
his Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment
 
or waiver becomes effective.
Any amendment or waiver once effective shall bind
 
every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described
 
in any of clauses (a) through (g) of
Section 9.03. In that case, the amendment or waiver shall
 
bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security
 
or portion of a Security that evidences the
same debt as the consenting Holder’s Security.
The Company may,
 
but shall not be obligated to, fix a record date for the
 
purpose of determining
the Securityholders entitled to give their consent or take
 
any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record
 
date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who
 
were Securityholders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled
 
to give such consent or to revoke any
consent previously given or to take any such action, whether
 
or not such Persons continue to be
Securityholders after such record date.
Section 9.06.
 
Notation on or Exchange of Securities.
 
The Trustee may place an appropriate
notation about an amendment or waiver on any Security
 
of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may
 
issue and the Trustee shall authenticate upon
written request new Securities of that Series that reflect
 
the amendment or waiver.
Section 9.07.
 
Trustee Protected.
 
In executing, or accepting the additional trusts
 
created by,
any supplemental indenture permitted by this Article or
 
the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled
 
to receive, and (subject to Section 7.01) shall be
 
fully
protected in relying upon, an Officers’ Certificate and
 
an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted
 
by this Indenture. The Trustee shall
 
sign all
supplemental indentures, except that the Trustee
 
need not sign any supplemental indenture that
adversely affects its rights.
ARTICLE 10
S
UBORDINATION OF
S
ECURITIES
Section 10.01.
 
Agreement to Subordinate.
 
The Company, for
 
itself, its successors and assigns,
covenants and agrees, and each Holder of Subordinated Securities
 
of any Series by his acceptance
thereof, likewise covenants and agrees, that the payment of
 
the principal of (and premium, if any) and
interest, if any, on, and
 
mandatory sinking fund payments, if any,
 
in respect of each and all of the
Subordinated Securities of such series shall be expressly
 
subordinated, to the extent and in the manner
provided in the Subordination Provisions established with respect
 
to the Subordinated Securities of such
Series pursuant to Section 2.02(i) hereof, in right of payment
 
to the prior payment in full of all Senior Debt
with respect to such Series.
ARTICLE 11
M
ISCELLANEOUS
Section 11.01.
 
Trust Indenture Act Controls.
 
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required or deemed
 
to be included in this Indenture by the TIA,
such required or deemed provision shall control.
41
Section 11.02.
 
Notices.
 
Any notice or communication by the Company or the Trustee
 
to the
other is duly given if in writing and delivered in person,
 
mailed by first-class mail or delivered by electronic
transmission:
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 to a Securityholder shall be provided
 
by electronic transmission or
by first-class mail to his address shown on the register
 
kept by the Registrar and, if any Bearer Securities
are outstanding, published in an Authorized Newspaper.
 
Failure to provide a notice or communication to a
Securityholder of any Series or any defect in it shall
 
not affect its sufficiency with respect
 
to other
Securityholders of that or any other Series.
If a notice or communication is provided or published in the
 
manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder
 
receives it.
If the Company provides a notice or communication to
 
Securityholders, it shall provide a copy to
the Trustee and each Agent at the same
 
time.
In case, by reason of the suspension of or irregularities in regular
 
mail service, it shall be
impracticable to mail notice by the Company when such notice
 
is required to be given pursuant to any
provision of this Indenture, then any manner of giving
 
such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be a
 
sufficient giving of such notice.
Notwithstanding anything in this Indenture to the contrary,
 
wherever notice is to be given to
Securityholders of Registered Global Securities, it shall
 
be sufficient if such notice is given in accordance
with the procedures of the Depositary.
Section 11.03.
 
Communication by Holders with Other Holders.
 
Securityholders of any Series
may communicate pursuant to TIA § 312(b) with other
 
Securityholders of that Series or any other Series
with respect to their rights under this Indenture or the Securities
 
of that Series or all Series. The
Company, the Trustee,
 
the Registrar and anyone else shall have the protection
 
of TIA § 312(c).
Section 11.04.
 
Certificate and Opinion as to Conditions Precedent.
 
Upon any request or
application by the Company to the Trustee
 
to take or refrain from taking any action under
 
this Indenture,
the Company shall furnish to the Trustee:
(a)
 
an Officers’ Certificate 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
(b)
 
an Opinion of Counsel stating that, in the opinion of such
 
counsel, all such conditions
precedent have been complied with.
Section 11.05.
 
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:
42
(a)
 
a statement that the person making such certificate or
 
opinion has read such covenant or
condition;
(b)
 
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;
(c)
 
a statement that, in the opinion of such individual, 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
(d)
 
a statement as to whether or not, in the opinion of such
 
person, such condition or covenant
has been complied with.
Section 11.06.
 
Rules by Trustee and Agents.
 
The Trustee may make reasonable rules
 
for
action by or a meeting of Securityholders of one or more
 
Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 11.07.
 
Legal Holidays.
 
Unless otherwise provided by Board Resolution, Officers’
Certificate or supplemental indenture for a particular Series, a “Legal
 
Holiday” is a Saturday,
 
Sunday or a
day on which banking institutions in the city (or in any of the
 
cities, if more than one) in which amounts are
payable, as specified in the form of such Security,
 
are not required by any applicable law or regulation to
be open. If a payment date for the payment of principal
 
or interest on any Security falls on a Legal
Holiday, such payment
 
shall be made on the next succeeding Business Day,
 
and no interest shall accrue
for the intervening period. If a regular record date is
 
a Legal Holiday, the
 
record date shall not be affected.
Section 11.08.
 
No Recourse Against Others.
 
No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in
 
any Security,
 
or because of any indebtedness
evidenced thereby, shall
 
be had against any incorporator,
 
as such, or against any past, present or future
stockholder, officer
 
or director, as such, of the Company
 
or of any successor, either
 
directly or through the
Company or any successor,
 
under any rule of law, statute
 
or constitutional provision or by the
enforcement of any assessment or by any legal or equitable
 
proceeding or otherwise, all such liability
being expressly waived and released by the acceptance
 
of the Securities and the coupons, if any,
appertaining thereto by the Holders thereof and as part
 
of the consideration for the issue of the Securities
and the coupons, if any,
 
appertaining thereto.
Section 11.09.
 
Counterparts.
 
This Indenture may be executed in any number
 
of counterparts
and by the parties hereto in separate counterparts, each
 
of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
 
one and the same agreement.
Section 11.10.
 
Governing Laws; Waiver of Jury Trial.
 
THIS INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT
 
UNDER THE LAWS OF THE
 
STATE
 
OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED
 
BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE,
 
INCLUDING, WITHOUT LIMITATION,
 
SECTIONS 5-1401 AND 5-
1402 OF THE NEW YORK GENERAL OBLIGATIONS
 
LAW AND NEW YORK CIVIL PRACTICE
 
LAWS
AND RULES 327(b).
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 NOTES OR
THE TRANSACTION CONTEMPLATED
 
HEREBY.
Section 11.11.
 
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.
43
Section 11.12.
 
Successors.
 
All agreements of the Company in this Indenture and the
 
Securities
shall bind its successor. All
 
agreements of the Trustee in this Indenture
 
shall bind its successor.
Section 11.13.
 
Severability.
 
In case any provision in this Indenture or
 
in the Securities shall be
invalid, illegal or unenforceable, the validity,
 
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 11.14.
 
Table
 
of Contents, Headings, Etc.
 
The Table
 
of Contents, Cross Reference
Table,
 
and headings of the Articles and Sections of this
 
Indenture have been inserted for convenience of
reference only, are not
 
to be considered a part hereof, and shall in no way modify
 
or restrict any of the
terms or provisions hereof.
Section 11.15.
 
Securities in a Foreign Currency.
 
Unless otherwise specified in a Board
Resolution, a supplemental indenture hereto or an Officers’
 
Certificate delivered pursuant to Section 2.02
of this Indenture with respect to a particular Series of
 
Securities, whenever for purposes of this Indenture
any action may be taken by the Holders of a specified
 
percentage in aggregate principal amount of
Securities of all Series or all Series affected by
 
a particular action at the time outstanding and, at such
time, there are outstanding Securities of any Series which
 
are denominated in a coin or currency other
than Dollars, then the principal amount of Securities of
 
such Series which shall be deemed to be
outstanding for the purpose of taking such action shall
 
be that amount of Dollars that could be obtained
for such amount at the Market Exchange Rate at such
 
time. For purposes of this Section 11.15,
 
“Market
Exchange Rate” shall mean the noon Dollar buying rate in
 
New York
 
City for cable transfers of that
currency as published by the Federal Reserve Bank of
 
New York.
 
If such Market Exchange Rate is not
available for any reason with respect to such currency,
 
the Trustee shall use, in its sole discretion
 
and
without liability on its part, such quotation of the Federal Reserve
 
Bank of New York
 
or quotations from
one or more major banks in The City of New York
 
or in the country of issue of the currency in question.
The provisions of this paragraph shall apply in determining the
 
equivalent principal amount in respect of
Securities of a Series denominated in currency other than
 
Dollars in connection with any action taken by
Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
 
regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph
 
shall be in its sole discretion and shall,
in the absence of manifest error,
 
be conclusive to the extent permitted by law for all purposes
 
and
irrevocably binding upon the Company and all Holders.
Section 11.16.
 
Judgment Currency.
 
The Company agrees, to the fullest extent that it may
effectively do so under applicable law,
 
that (a) if for the purpose of obtaining judgment
 
in any court it is
necessary to convert the sum due in respect of the principal
 
of or interest or other amount on the
Securities of any Series (the “Required Currency”) into
 
a currency in which a judgment will be rendered
(the “Judgment Currency”), the rate of exchange used shall
 
be the rate at which in accordance with
normal banking procedures the Trustee
 
could purchase in The City of New York
 
the Required Currency
with the Judgment Currency on the day on which final unappealable
 
judgment is entered, unless such
day is not a New York
 
Banking Day,
 
then, the rate of exchange used shall be the rate at
 
which in
accordance with normal banking procedures the Trustee
 
could purchase in The City of New York
 
the
Required Currency with the Judgment Currency on the
 
New York
 
Banking Day preceding the day on
which final unappealable judgment is entered and (b) its
 
obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged
 
or satisfied by any tender, any
 
recovery
pursuant to any judgment (whether or not entered in accordance
 
with subsection (a)), in any currency
other than the Required Currency,
 
except to the extent that such tender or recovery shall result
 
in the
actual receipt, by the payee, of the full amount of the Required
 
Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as
 
an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount,
 
if any, by which
 
such actual receipt shall fall
short of the full amount of the Required Currency so expressed
 
to be payable, and (iii) shall not be
affected by judgment being obtained for any other
 
sum due under this Indenture. For purposes
 
of the
foregoing, “New York
 
Banking Day” means any day except a Saturday,
 
Sunday or a legal holiday in The
44
City of New York
 
on which banking institutions are authorized or required
 
by law, regulation or executive
order to close.
Section 11.17.
 
Acts of Holders.
 
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
 
to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all
 
Series may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
 
specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except
 
as herein otherwise expressly provided, such
action shall become effective when such instrument
 
or instruments are delivered to the Trustee
 
and,
where it is hereby expressly required, to the Company.
 
Such instrument or instruments and any such
record (and the action embodied therein and evidenced
 
thereby) are herein sometimes referred to as the
“ACT” of the Holders signing such instrument or instruments
 
and so voting at any such meeting. Proof of
execution of any instrument or of a writing appointing any
 
such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 7.01 and 7.02) conclusive
 
in favor of the Trustee and the
Company, if made
 
in the manner provided in this Section 11.17.
(a)
 
Subject to Sections 7.01 and 7.02, the execution of any
 
instrument by a Securityholder or
his agent or proxy may be proved in accordance with such
 
reasonable rules and regulations as may be
prescribed by the Trustee or in such manner
 
as shall be satisfactory to the Trustee.
 
The holding of
Registered Securities shall be proved by the Security register
 
or by a certificate of the registrar thereof.
(b)
 
The Company, the
 
Trustee and any agent of the Company
 
or the Trustee may deem and
treat the person in whose name any Security shall be registered
 
upon the Security register for such series
as the absolute owner of such Security (whether or not
 
such Security shall be overdue and
notwithstanding any notation of ownership or other writing
 
thereon) for the purpose of receiving payment
of or on account of the principal of and, subject to the provisions
 
of this Indenture, interest on such
Security and for all other purposes; and neither the Company
 
nor the Trustee nor any agent of the
Company or the Trustee shall be affected
 
by any notice to the contrary.
 
The Company, the
 
Trustee and
any agent of the Company or the Trustee
 
may treat the Holder of any Bearer Security as the absolute
owner of such Bearer Security (whether or not such Bearer
 
Security shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for
 
all other purposes, and neither the Company,
 
the
Trustee, nor any agent of the Company
 
or the Trustee shall be affected
 
by any notice to the contrary.
 
All
such payments so made to any such person, or upon his
 
order, shall be valid, and,
 
to the extent of the
sum or sums so paid, effectual to satisfy and discharge
 
the liability for moneys payable upon any such
Bearer Security. Notwithstanding
 
the foregoing, nothing herein shall prevent the Company,
 
the Trustee or
any Agent from giving effect to any written certification,
 
proxy or other authorization furnished by the
Depositary or impair, as between
 
the Depositary and its members, the operation of customary
 
practices
governing the exercise of the rights of a holder of a beneficial
 
interest in any Registered Global Security
(c)
 
At any time prior to (but not after) the evidencing to the
 
Trustee, as provided in this Section
11.17, of the taking of
 
any action by the Holders of the percentage in aggregate
 
principal amount of the
Securities of any or all series, as the case may be, specified
 
in this Indenture in connection with such
action, any Holder of a Security the serial number of which
 
is shown by the evidence to be included
among the serial numbers of the Securities the Holders
 
of which have consented to such action may,
 
by
filing written notice at the Corporate Trust
 
Office and upon proof of holding as provided
 
in this Article,
revoke such action so far as concerns such Security.
 
Except as aforesaid, any such action taken by the
Holder of any Security shall be conclusive and binding upon such
 
Holder and upon all future Holders and
owners of such Security and of any Securities issued in
 
exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or
 
not any notation in regard thereto is made upon
any such Security.
 
Any action taken by the Holders of the percentage
 
in aggregate principal amount of
the Securities of any or all series, as the case may be,
 
specified in this Indenture in connection with such
action shall be conclusively binding upon the Company,
 
the Trustee and the Holders
 
of all the Securities
affected by such action.
Section 11.18.
 
Force Majeure.
 
In no event shall the Trustee or
 
any Agent be responsible or
liable for any failure or delay in the performance of its
 
obligations hereunder arising out of or caused by,
45
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
 
and such Agent shall use reasonable efforts
 
that
are consistent with accepted practices in the banking industry
 
to resume performance as soon as
practicable under the circumstances.
ARTICLE 12
S
INKING
F
UNDS
Section 12.01.
 
Applicability of Article.
 
The provisions of this Article shall be applicable to
 
any
sinking fund for the retirement of the Securities of a Series,
 
except as otherwise permitted or required by
any form of Security of such Series issued pursuant to
 
this Indenture.
The minimum amount of any sinking fund payment provided
 
for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking
 
fund payment” and any other amount provided
for by the terms of Securities of such Series is herein referred
 
to as an “optional sinking fund payment.” If
provided for by the terms of Securities of any Series, the cash amount
 
of any sinking fund payment may
be subject to reduction as provided in Section 12.02. Each
 
sinking fund payment shall be applied to the
redemption of Securities of any Series as provided for by the terms
 
of the Securities of such Series.
Section 12.02.
 
Satisfaction of Sinking Fund Payments with Securities.
 
The Company may,
 
in
satisfaction of all or any part of any sinking fund payment
 
with respect to the Securities of any Series to
be made pursuant to the terms of such Securities (a) deliver
 
outstanding Securities of such Series to
which such sinking fund payment is applicable (other than
 
any of such Securities previously called for
mandatory sinking fund redemption) and (b) apply as credit
 
Securities of such Series to which such
sinking fund payment is applicable and which have been
 
redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant
 
to any mandatory sinking fund) or
through the application of permitted optional sinking fund payments
 
or other optional redemptions
pursuant to the terms of such Securities, provided that such
 
Securities have not been previously so
credited. Such Securities shall be received by the Trustee,
 
together with an Officers’ Certificate with
respect thereto, not later than 15 days prior to the date
 
on which the Trustee begins the process
 
of
selecting Securities for redemption, and shall be credited for such
 
purpose by the Trustee at the
 
price
specified in such Securities for redemption through operation of
 
the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
 
If as a result of the delivery or credit of Securities in
lieu of cash payments pursuant to this Section 12.02, the principal
 
amount of Securities of such Series to
be redeemed in order to exhaust the aforesaid cash payment
 
shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption,
 
except upon receipt of a Company Order that such
action be taken, and such cash payment shall be held
 
by the Trustee or a Paying Agent and
 
applied to
the next succeeding sinking fund payment, provided,
 
however, that the Trustee
 
or such Paying Agent
shall from time to time upon receipt of a Company Order pay over
 
and deliver to the Company any cash
payment so being held by the Trustee
 
or such Paying Agent upon delivery by the Company to
 
the Trustee
of Securities of that Series purchased by the Company
 
having an unpaid principal amount equal to the
cash payment required to be released to the Company.
Section 12.03.
 
Redemption of Securities for Sinking Fund.
 
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture
 
hereto or Officers’ Certificate in
respect of a particular Series of Securities) prior to each sinking
 
fund payment date for any Series of
Securities, the Company will deliver to the Trustee
 
an Officers’ Certificate specifying the amount of
 
the
next ensuing mandatory sinking fund payment for that
 
Series pursuant to the terms of that Series, the
portion thereof, if any,
 
which is to be satisfied by payment of cash and the
 
portion thereof, if any,
 
which is
to be satisfied by delivering and crediting of Securities of that
 
Series pursuant to Section 12.02, and the
optional amount, if any,
 
to be added in cash to the next ensuing mandatory sinking
 
fund payment, and the
Company shall thereupon be obligated to pay the amount therein
 
specified. Not less than 30 days (unless
otherwise indicated in the Board Resolution, Officers’
 
Certificate or supplemental indenture in respect of a
46
particular Series of Securities) before each such sinking
 
fund payment date the Trustee shall
 
select the
Securities to be redeemed upon such sinking fund payment
 
date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the
 
name of and at the expense of the
Company in the manner provided in Section 3.03. Such
 
notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the
 
manner stated in Sections 3.04, 3.05 and 3.06.
 
 
 
IN WITNESS WHEREOF,
 
the parties hereto have caused this Indenture to
 
be duly executed as
of the day and year first above written.
Vaxxinity,
 
Inc.
By:
Name:
 
Title:
 
[___], Trustee
By:
Name:
 
Title:
 
 
Exhibits 5.1 and 23.2
OPINION OF DAVIS
 
POLK & WARDWELL LLP
August 9, 2023
Vaxxinity,
 
Inc.
505 Odyssey Way
Merritt Island, Florida 32953
Ladies and Gentlemen:
Vaxxinity,
 
Inc., a Delaware corporation (the “
Company
”), is filing with the Securities and Exchange
Commission a Registration Statement on Form S-3 (the
 
“
Registration Statement
”) for the purpose of
registering under the Securities Act of 1933, as amended (the
 
“
Securities Act
”), (a) shares of Class A
common stock, par value $0.0001 per share (the “
Class A Common Stock
”), of the Company,
 
including
shares of Class A Common Stock having an aggregate
 
offering price of up to $100,000,000 (such
 
shares
of Class A Common Stock, the “
Offered Shares
”) from time to time through Jefferies
 
LLC pursuant to the
Open Market Sale Agreement dated August 9, 2023 (the “
Sales Agreement
”) among the Company and
Jefferies LLC (the “
Sales Agent
”); (b) shares of preferred stock, par value $0.0001 per share
 
(the
“
Preferred Stock
”), of the Company; (c) the Company’s
 
debt securities (collectively,
 
the “
Debt
Securities
”), which may be issued pursuant to an indenture,
 
between the Company and a trustee to be
named therein, as trustee (the “
Trustee
”) (the “
Indenture
”); (d) warrants of the Company (the
“
Warrants
”), which may be issued under one or more warrant agreements
 
(each, a “
Warrant
Agreement
”) to be entered into between the Company and the
 
warrant agent to be named therein (the
“
Warrant Agent
”); (e) subscription rights (the “
Subscription Rights
”), which may be issued under one or
more subscription rights agreements (each, a “
Subscription Rights Agreement
”) to be entered into
between the Company and the subscription agent to be
 
named therein (the “
Purchase Contract Agent
”);
and (f) units (the “
Units
”) to be issued under one or more unit agreements
 
to be entered into among the
Company, a bank
 
or trust company,
 
as unit agent (the “
Unit Agent
”), and the holders from time to time of
the Units (each such unit agreement, a “
Unit Agreement
”).
We, as your counsel, have examined originals or copies
 
of such documents, corporate records,
certificates of public officials and other instruments as
 
we have deemed necessary or advisable for the
purpose of rendering this opinion.
In rendering the opinions expressed herein, we have,
 
without independent inquiry or investigation,
assumed that (i) all documents submitted to us as originals
 
are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals,
 
(iii) all documents filed as exhibits to
the Registration Statement that have not been executed will conform
 
to the forms thereof, (iv) all
signatures on all documents that we reviewed are genuine,
 
(v) all natural persons executing documents
had and have the legal capacity to do so, (vi) all statements
 
in certificates of public officials and officers
 
of
the Company that we reviewed were and are accurate and (vii)
 
all representations made by the Company
as to matters of fact in the documents that we reviewed
 
were and are accurate.
Based upon the foregoing, and subject to the additional assumptions
 
and qualifications set forth below,
we advise you that, in our opinion:
1.
 
Assuming the terms of any sales of Offered Shares
 
pursuant to the Sales Agreement are
approved by the Company’s board of directors
 
or a properly constituted and authorized
committee thereof (or any of them delegates such approval to
 
officers and such terms are
approved by such officers), the Offered
 
Shares have been duly authorized and, when
issued and delivered to and paid for by the Sales Agent
 
pursuant to the Sales
Agreement, will be validly issued, fully paid and non-assessable.
2
2.
 
When the necessary corporate action on the part of the
 
Company has been taken to
authorize the issuance and sale of shares of Class A Common
 
Stock (other than the
Offered Shares) proposed to be sold by the Company,
 
and when such shares of Class A
Common Stock are issued and delivered in accordance with the
 
applicable underwriting
or other agreement against payment therefor (in excess
 
of par value thereof) or upon
conversion or exercise of any security offered under
 
the Registration Statement (the
“
Offered Security
”), in accordance with the terms of such Offered
 
Security or the
instrument governing such Offered Security
 
providing for such conversion or exercise as
approved by the Board of Directors of the Company,
 
for the consideration approved by
such Board of Directors (which consideration is not less
 
than the par value of the Class A
Common Stock), such shares of Class A Common Stock
 
will be validly issued, fully-paid
and non-assessable.
3.
 
Upon designation of the relative rights, preferences and limitations
 
of any series of
Preferred Stock by the Board of Directors of the Company
 
and the proper filing with the
Secretary of State of the State of Delaware of a Certificate
 
of Designation relating to such
series of Preferred Stock, all necessary corporate action on
 
the part of the Company will
have been taken to authorize the issuance and sale of
 
such series of Preferred Stock
proposed to be sold by the Company,
 
and when such shares of Preferred Stock are
issued and delivered in accordance with the applicable underwriting
 
or other agreement
against payment therefor (in excess of par value thereof),
 
such shares of Preferred Stock
will be validly issued, fully paid and non-assessable.
4.
 
When the Indenture and any supplemental indenture to
 
be entered into in connection with
the issuance of any Debt Securities have been duly authorized,
 
executed and delivered
by the Trustees
 
and the Company; the specific terms of a particular series
 
of Debt
Securities have been duly authorized and established
 
in accordance with the Indenture;
and such Debt Securities have been duly authorized,
 
executed, authenticated, issued
and delivered in accordance with the Indenture and the applicable
 
underwriting or other
agreement against payment therefor,
 
such Debt Securities will constitute valid and
binding obligations of the Company,
 
enforceable in accordance with their terms, subject
to applicable bankruptcy,
 
insolvency and similar laws affecting creditors’
 
rights generally,
concepts of reasonableness and equitable principles of general
 
applicability, provided
that we express no opinion as to (w) the enforceability
 
of any waiver of rights under any
usury or stay law, (x)
 
the effect of fraudulent conveyance, fraudulent transfer
 
or similar
provision of applicable law on the conclusions expressed above
 
or (y) the validity,
 
legally
binding effect or enforceability of any section of the
 
Indenture that requires or relates to
adjustments to the conversion rate at a rate or in an amount
 
that a court would determine
in the circumstances under applicable law to be commercially
 
unreasonable or a penalty
or forfeiture or (z) the validity,
 
legally binding effect or enforceability of any provision
 
that
permits holders to collect any portion of stated principal amount
 
upon acceleration of the
Debt Securities to the extent determined to constitute unearned
 
interest.
5.
 
When the Warrant Agreement to be entered
 
into in connection with the issuance of any
Warrants has been duly authorized, executed
 
and delivered by the Warrant
 
Agent and
the Company; the specific terms of the Warrants
 
have been duly authorized and
established in accordance with the Warrant
 
Agreement; and such Warrants have
 
been
duly authorized, executed, issued and delivered in accordance
 
with the Warrant
Agreement and the applicable underwriting or other agreement
 
against payment therefor,
such Warrants will constitute valid and
 
binding obligations of the Company,
 
enforceable
in accordance with their terms, subject to applicable bankruptcy,
 
insolvency and similar
laws affecting creditors’
 
rights generally,
 
concepts of reasonableness and equitable
principles of general applicability,
 
and may be subject to possible judicial or regulatory
actions giving effect to governmental actions or foreign
 
laws affecting creditors’
 
rights.
3
6.
 
When the Subscription Rights Agreement to be entered
 
into in connection with the
issuance of any Subscription Rights has been duly authorized,
 
executed and delivered by
the Subscription Agent and the Company; the specific
 
terms of the Subscription Rights
have been duly authorized and established in accordance with
 
the Subscription Rights
Agreement; and such Subscription Rights have been duly
 
authorized, executed, issued
and delivered in accordance with the Subscription Rights
 
Agreement and the applicable
underwriting or other agreement against payment therefor,
 
such Subscription Rights will
constitute valid and binding obligations of the Company,
 
enforceable in accordance with
their terms, subject to applicable bankruptcy,
 
insolvency and similar laws affecting
creditors’ rights generally,
 
concepts of reasonableness and equitable principles of
general applicability,
 
and may be subject to possible judicial or regulatory actions
 
giving
effect to governmental actions or foreign laws affecting
 
creditors’
 
rights.
7.
 
When the Unit Agreement to be entered into in connection with
 
the issuance of any Units
has been duly authorized, executed and delivered by the Unit
 
Agent and the Company;
the specific terms of the Units have been duly authorized and
 
established in accordance
with the Unit Agreement; and such Units have been duly
 
authorized, executed, issued
and delivered in accordance with the Unit Agreement and the
 
applicable underwriting or
other agreement against payment therefor,
 
such Units will constitute valid and binding
obligations of the Company,
 
enforceable in accordance with their terms, subject to
applicable bankruptcy,
 
insolvency and similar laws affecting creditors’
 
rights generally,
concepts of reasonableness and equitable principles of general
 
applicability, and
 
may be
subject to possible judicial or regulatory actions giving
 
effect to governmental actions or
foreign laws affecting creditors’
 
rights.
In connection with the opinions expressed above, we have
 
assumed that, at or prior to the time of the
delivery of any such security,
 
(i) the Board of Directors of the Company shall have
 
duly established the
terms of such security and duly authorized the issuance
 
and sale of such security and such authorization
shall not have been modified or rescinded; (ii) the Company
 
shall remain validly existing as a corporation
in good standing under the laws of the State of Delaware
 
;
 
(iii) the Registration Statement shall have been
declared effective and such effectiveness
 
shall not have been terminated or rescinded; (iv)
 
the Indenture,
the Debt Securities, the Warrant Agreement,
 
the Subscription Rights Agreement and the Unit Agreement
are each valid, binding and enforceable agreements of
 
each party thereto (other than as expressly
covered above in respect of the Company); and (v) there
 
shall not have occurred any change in law
affecting the validity
 
or enforceability of such security.
 
We have also assumed that (i) the terms of any
security whose terms are established subsequent to the
 
date hereof and the issuance, execution, delivery
and performance by the Company of any such security
 
(a) require no action by or in respect of, or filing
with, any governmental body,
 
agency or official and (b) do not contravene,
 
or constitute a default under,
any provision of applicable law or public policy or regulation or any
 
judgment, injunction, order or decree
or any agreement or other instrument binding upon the
 
Company and (ii) any Warrant
 
Agreement,
Subscription Rights Agreement and Unit Agreement
 
will be governed by the laws of the State of New
York.
We are members of the Bar of the State of New
 
York
 
and the foregoing opinion is limited to the laws of
the State of New York
 
and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion
 
as an exhibit to the Registration Statement referred to
above and further consent to the reference to our name
 
under the caption “Legal Matters” in the
prospectus, which is a part of the Registration Statement.
 
In giving this consent, we do not admit that we
are in the category of persons whose consent is required
 
under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
 
Exhibit 23.1
Consent of Independent Registered Public Accounting
 
Firm
We consent to the incorporation by reference
 
in this Registration Statement on Form S-3 of our report
dated March 27, 2023, relating to the consolidated financial
 
statements of Vaxxinity,
 
Inc., which appears
in Vaxxinity,
 
Inc.’s Annual Report on Form 10-K for the
 
year ended December 31, 2022. We also consent
to the reference to us under the heading "Experts" in this
 
Registration Statement.
/s/ Armanino LLP
Armanino LLP
San Ramon, California
August 9, 2023
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Exhibit 107
Calculation of Filing Fee Tables
S-3
(Form Type)
 
Vaxxinity,
 
Inc.
(Exact Name of Registrant as Specified in its Charter)
 
Table
 
1: Newly Registered and Carry Forward 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
Amount of
Registration
Fee
Carry
Forward
Form
Type
Carry
Forward
File
Number
Carry
Forward
Initial
Effective
Date
Filing Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward
Newly Registered Securities
Fees to be
Paid
Equity
Class A
Common
Stock
 
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Equity
Preferred
Stock
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Debt
Debt
Securities
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Warrants
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Subscription
Rights
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
 
Purchase
Contracts
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
 
Units
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Unallocated
(Universal)
Shelf
Unallocated
(Universal)
Shelf
Rule
457(o)
(1)
(1)
$300,000,000
0.00011020
$33,060
Fees
Previously
Paid
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Carry Forward Securities
Carry
Forward
Securities
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Total Offering Amounts
$300,000,000
$33,060
Total Fees Previously Paid
—
Total Fee Offsets
—
Net Fee Due
$33,060
(1)
 
An unspecified number of securities of each identified
 
class is being registered as may from time
 
to time be issued at
unspecified prices, including securities that may
 
be issued upon exercise, conversion or exchange.
 
Separate consideration
may or may not be received for securities that
 
are issuable on exercise, conversion or exchange
 
of other securities. The
aggregate maximum offering price of all securities offered pursuant
 
to this registration statement will not exceed $300,000,000.
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