As filed with the Securities and Exchange Commission
on August 6, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933
ADC THERAPEUTICS SA
(Exact name of Registrant as specified in its charter)
| Switzerland |
|
|
Not Applicable |
| (State or other jurisdiction of incorporation or organization) |
|
|
(I.R.S. Employer Identification No.) |
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
+41 21 653 02 00
(Address, including zip code, and telephone number,
including area code, of Registrant’s principal executive offices)
ADC Therapeutics America, Inc.
430 Mountain Avenue, 4th Floor
Murray Hill, NJ 07974
(908) 546-5556
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Deanna L. Kirkpatrick
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000 |
|
Dieter Gericke
Daniel Häusermann
Homburger AG
Hardstrasse 201
CH-8005 Zurich, Switzerland
+41 43 222 10 00 |
Approximate date of commencement of proposed sale to the public: From
time to time after the effectiveness of this registration statement.
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 this
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
ADC Therapeutics SA (the “Company”) is registering under
this registration statement an aggregate of $300,000,000 of securities, including, in accordance with Rule 415(a)(6) under the Securities
Act of 1933, as amended (the “Securities Act”), $194,281,632 of unsold securities previously registered under the Company’s
registration statement on Form S-3 (File No. 333-270570).
This registration statement contains two prospectuses:
| · | a base prospectus that covers the offering and sale of up to $300,000,000
of the Company’s common shares, debt securities, warrants, subscription rights, purchase contracts and units; and |
| · | a sales agreement prospectus supplement that covers the offering and sale
of up to $100,000,000 of the Company’s common shares that may be offered and sold under the Open Market Sale AgreementSM
(the “sales agreement”) between the Company and Jefferies LLC dated August 6, 2024. |
The base prospectus immediately follows this explanatory note. The
sales agreement prospectus supplement immediately follows the base prospectus. The common shares that may be offered and sold pursuant
to the sales agreement prospectus supplement are included in the $300,000,000 of securities that may be offered and sold 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.
The information 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
6, 2024
PROSPECTUS
ADC THERAPEUTICS SA
$300,000,000
Common Shares
Debt Securities
Warrants
Subscription Rights
Purchase Contracts
Units
We may offer and sell from time to time, in one or more offerings,
up to $300,000,000 of any combination of the following securities: common shares, debt securities, warrants, subscription rights, purchase
contracts and units (collectively, the “securities”). The securities may be offered and sold in different series, at times,
in amounts, at prices and on terms to be determined at or prior to the time of each offering. This prospectus describes the general terms
of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities
and the specific manner in which these securities will be offered and sold in supplements to this prospectus. The prospectus supplements
may also supplement, update or amend information contained in this prospectus. You should read this prospectus and any applicable prospectus
supplement before you invest.
The securities covered by this prospectus may be offered through one
or more underwriters, dealers and agents, or directly to purchasers. The applicable prospectus supplement will set forth the names of
the underwriters, dealers or agents, if any, any applicable commissions or discounts payable to them and the specific terms of the plan
of distribution. For general information about the distribution of these securities, see “Plan of Distribution” beginning
on page 39 of this prospectus.
Our common shares are listed on the New York Stock Exchange (“NYSE”)
under the symbol “ADCT.”
Investing in our securities involves a high degree of risk. See
the “Risk Factors” section beginning on page 4 of this prospectus and, if applicable, any risk factors described 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 of these securities or determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
Prospectus dated ,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed
with the SEC using a “shelf” registration process. Under this shelf registration process, we may offer and sell, from time
to time, in one or more offerings, up to $300,000,000 of any combination of the securities described in this prospectus. This prospectus
describes the general terms of these securities and the general manner in which these securities will be offered. Each time we offer or
sell securities, we will provide the specific terms of these securities and the specific manner in which these securities will be offered
and sold in supplements to this prospectus. The prospectus supplements may also supplement, update or amend information contained in this
prospectus.
Before buying any of the securities that we are offering, you should
carefully read both this prospectus and any prospectus supplement with all of the information incorporated by reference in this prospectus,
as well as the additional information described under the heading “Where You Can Find More Information” and “Information
Incorporated by Reference.” These documents contain important information that you should consider when making your investment decision.
We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read
the exhibits carefully for provisions that may be important to you.
To the extent there is a conflict between the information contained
in this prospectus, on the one hand, and the information contained in any prospectus supplement or in any document incorporated by reference
in this prospectus, on the other hand, you should rely on the information in this prospectus, 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 prospectus supplement or
a document incorporated by reference in this prospectus—the statement in the document having the later date modifies or supersedes
the earlier statement.
The information contained in this prospectus, any applicable prospectus
supplement or 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, any applicable prospectus supplement or the documents incorporated by reference in this 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 any underwriters, dealers or agents have 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 we may authorize to be delivered or made available to you. Neither we nor any underwriters, dealers or
agents take responsibility for, or provide 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.
For investors outside the United States: Neither we nor any underwriters,
dealers or agents have taken any action that would permit the offering or possession or distribution of this prospectus in any jurisdiction
where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession
of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities described herein
and the distribution of this prospectus outside the United States.
Unless otherwise indicated or the context otherwise requires, all references
in this prospectus to “ADC Therapeutics,” “ADCT,” the “Company,” “we,” “our,”
“ours,” “us” or similar terms refer to ADC Therapeutics SA and its consolidated subsidiaries.
Trademarks
We own various trademark registrations and applications, and unregistered
trademarks, including ADC Therapeutics, ADCT, ZYNLONTA and our corporate logo. All other trade names, trademarks and service
marks of other companies appearing in this prospectus are the property
of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred to without the ®
and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the
fullest extent under applicable law, their rights thereto. We do not intend to use or display other companies’ trademarks and trade
names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
OUR COMPANY
Overview
ADC Therapeutics is a leading, commercial-stage global pioneer in the
field of antibody drug conjugates (“ADCs”) with a validated and differentiated technology platform with multiple payloads
and targets, a robust next-generation research and development toolbox, and specialized end-to-end capabilities. We are advancing our
proprietary ADC technology to transform the treatment paradigm for patients with hematologic malignancies and solid tumors.
Company and Corporate Information
We are a Swiss stock corporation (société anonyme)
organized under the laws of Switzerland. We were incorporated as a Swiss limited liability company (société à
responsabilité limitée) on June 6, 2011 and converted into a Swiss stock corporation (société
anonyme) under the laws of Switzerland on October 13, 2015. We have three subsidiaries: ADC Therapeutics (UK) Limited, ADC
Therapeutics America, Inc. and ADC Therapeutics (NL) BV. Our principal executive office is located at Biopôle, Route de la
Corniche 3B, 1066 Epalinges, Switzerland and our telephone number is +41 21 653 02 00. Our website is adctherapeutics.com.
The reference to our website is an inactive textual reference only, and information contained therein or connected thereto is not incorporated
into this prospectus or the registration statement of which it forms a part.
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 then-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 incorporated by reference in this prospectus, together with
all of the other information appearing or incorporated by reference in this prospectus and any applicable prospectus supplement, in light
of your particular investment objectives and financial circumstances. These risks and uncertainties are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business.
If any of the events or developments were to occur, our business, results of operations, financial condition and prospects could suffer
materially.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by
reference in this prospectus contain statements that constitute 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”). All statements other
than statements of historical facts, including statements regarding our future catalysts, results of operations and financial position,
business and commercial strategy, market opportunities, products and product candidates, research pipeline, ongoing and planned
preclinical studies and clinical trials, regulatory submissions and approvals, research and development costs, projected revenues
and expenses and the timing of revenues and expenses, timing and likelihood of success, as well as plans and objectives of management
for future operations are forward-looking statements. Many of the forward-looking statements contained in this prospectus can be
identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “expect,”
“should,” “plan,” “intend,” “estimate,” “will” and “potential,”
among others.
Forward-looking statements are based on our management’s
beliefs and assumptions and on information available to our management at the time such statements are made. Such statements are
subject to known and unknown risks and uncertainties, and actual results may differ materially from those expressed or implied
in the forward-looking statements due to various factors, including, but not limited to: the substantial net losses that
we have incurred since our inception, our expectation to continue to incur losses for the foreseeable future and our need to raise additional
capital to fund our operations and execute our business plan; our indebtedness under the loan agreement and guaranty (the “Loan
Agreement”) with certain affiliates and/or funds managed by each of Oaktree Capital Management, L.P. and Owl Rock Capital Advisors
LLC, as lenders, and Blue Owl Opportunistic Master Fund I, L.P., as administrative agent, and the associated restrictive covenants thereunder;
the purchase and sale agreement with certain entities managed by HealthCare Royalty Management, LLC and its negative effect on the amount
of cash that we are able to generate from sales of, and licensing agreements involving, ZYNLONTA and on our attractiveness as an acquisition
target; our ability to complete clinical trials on expected timelines, if at all; the timing, outcome and results of ongoing or planned
clinical trials, whether the Company sponsored trials or through investigator initiated trials, and the sufficiency of such results; undesirable
side effects or adverse events of our products and product candidates; our and our partners’ ability to obtain and maintain regulatory
approval for our product and product candidates; our and our partners’ ability to successfully commercialize our products; the availability
and scope of coverage and reimbursement for our products; the complexity and difficulty of manufacturing our products and product candidates;
the substantial competition in our industry, including new technologies and therapies; the timing and results of any early research projects
and future clinical outcomes; our reliance on third parties for preclinical studies and clinical trials and for the manufacture, production,
storage and distribution of our products and product candidates and certain commercialization activities for our products; our ability
to obtain, maintain and protect our intellectual property rights and our ability to operate our business without infringing on the intellectual
property rights of others; our estimates regarding future revenue, expenses and needs for additional financing; the size and growth potential
of the markets for our products and product candidates; potential product liability lawsuits and product recalls; and those identified
in the “Risk Factors” section of this prospectus and the documents incorporated by reference in this prospectus.
Because forward-looking statements are inherently
subject to risks and uncertainties, some of which cannot be predicted or quantified and some of which are beyond our control,
you should not rely on these forward-looking statements as predictions of future events. Moreover, we operate in an evolving
environment. New risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict
all risk factors and uncertainties. Except as required by applicable law, we do not plan to publicly update or revise any
forward-looking statements, whether as a result of any new information, future events, changed circumstances or otherwise.
You should read this prospectus, the documents incorporated by reference in this prospectus and the documents that we have
filed as exhibits to the registration statement of which this prospectus is a part completely and with the understanding
that our actual future results may be materially different from what we expect.
In addition, statements that “we believe”
and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available
to us as of the date of such statements, and while we believe such information forms a reasonable basis for such statements, such
information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive
inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors
are cautioned not to unduly rely upon these statements.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the principal
purpose of an offering would be to increase our capitalization and financial flexibility, and the net proceeds from our sale of the securities
will be used for general corporate purposes and other business opportunities.
DIVIDEND POLICY
We have never declared or paid cash dividends on our share capital.
We intend to retain all available funds and any future earnings, if any, to fund the development and expansion of our business, and we
do not anticipate paying any cash dividends in the foreseeable future. In addition, agreements governing our indebtedness, including the
Loan Agreement, limit our ability to pay dividends. Any future determination related to dividend policy will be made at the discretion
of our board of directors and will depend upon, among other factors, our results of operations, financial condition, capital requirements,
contractual restrictions, business prospects and other factors our board of directors may deem relevant.
Under Swiss law, any dividend must be approved by our shareholders.
In addition, our auditors must confirm that the dividend proposal of our board of directors to the shareholders conforms to Swiss statutory
law and our articles of association. A Swiss corporation may pay dividends only if it has sufficient distributable profits from the previous
or current business year (bénéfice résultant du bilan) or brought forward from previous business years (report
des bénéfices) or if it has distributable reserves (réserves à libre disposition), each as evidenced
by its audited stand-alone statutory balance sheet prepared pursuant to Swiss law and after allocations to reserves required by Swiss
law and its articles of association have been deducted. Distributable reserves are generally booked either as free reserves (réserves
libres) or as reserves from capital contributions (apports de capital). Distributions out of share capital, which is the aggregate
par value of a corporation’s issued shares, may be made only by way of a share capital reduction. See “Description of Share
Capital and Articles of Association.”
DESCRIPTION OF SHARE CAPITAL AND ARTICLES
OF ASSOCIATION
The Company
We are a Swiss stock corporation (société anonyme)
organized under the laws of Switzerland. We were incorporated as a Swiss limited liability company (société à
responsabilité limitée) on June 6, 2011 with our registered office and domicile in Epalinges, Canton of Vaud,
Switzerland. We converted to a Swiss stock corporation under the laws of Switzerland on October 13, 2015. Our domicile is in Epalinges,
Canton of Vaud, Switzerland. Our registered office and head office is currently located at Biopôle, Route de la Corniche
3B, 1066 Epalinges, Switzerland.
Articles of Association
Ordinary Capital Increase, Capital Range and Conditional
Share Capital
Under Swiss law, we may increase our share capital (capital-actions)
with a resolution of the general meeting of shareholders (ordinary capital increase) that must be carried out by the board of directors
within six months of the respective general meeting in order to become effective. Under our articles of association and Swiss law,
in the case of subscription and increase against payment of contributions in cash, a resolution passed by a majority of
the shares represented at the general meeting of shareholders is required. In the case of subscription and increase against contributions
in kind or to fund acquisitions in kind, when shareholders’ statutory pre-emptive subscription rights or advance subscription
rights are limited or withdrawn or where transformation of freely disposable equity into share capital is involved, a resolution
passed by two-thirds of the shares represented at a general meeting of shareholders and the majority of the par value of the shares
represented is required.
Under the Swiss Code of Obligations (Code des obligations) (the
“CO”), our shareholders, by a resolution passed by two-thirds of the shares represented at a general meeting of shareholders
and the majority of the par value of the shares represented, can:
| · | adopt conditional share capital (capital-actions conditionnel) in
the aggregate amount of up to 50% of the share capital for the purpose of issuing shares in connection with, among other things,
option and conversion rights granted to shareholders, the creditors of bonds and similar debt instruments, employees, members of
the board of directors of the Company or of any group company, or to any third parties; and |
| · | in the form of capital range (marge de fluctuation du capital), empower
our board of directors to increase and/or decrease our share capital by up to 50% of the share capital, by issuing or canceling shares,
or by increasing or decreasing the par value of shares, including through the creation of conditional share capital; such capital range
is to be utilized by the board of directors within a period determined by the shareholders but not exceeding five years from the
date of the shareholder approval. |
Pre-Emptive and Advance Subscription Rights
Pursuant to the CO, shareholders have pre-emptive subscription rights
(droits de souscription préférentiels) to subscribe for new issuances of shares. With respect to conditional
capital, shareholders have (i) pre-emptive subscription rights for the subscription of option rights and (ii) advance subscription rights
(droit de souscription préalable) for the subscription of bonds and similar debt instruments to which
option or conversion rights are attached.
A resolution passed at a general meeting of shareholders by two-thirds
of the shares represented and the majority of the par value of the shares represented may authorize our board of directors to withdraw
or limit pre-emptive subscription rights or advance subscription rights in certain circumstances.
If pre-emptive subscription rights are granted, but not exercised,
the board of directors may allocate the unexercised pre-emptive subscription rights at its discretion.
Our Capital Range
Under our articles of association, we have a capital range ranging
from CHF 7,123,355.68 (lower limit) to CHF 10,685,033.52 (upper limit). Our board of directors is authorized within the capital range
to increase or decrease our share capital once or several times and in any amounts and to acquire or dispose of shares, directly or indirectly,
until June 14, 2028, or until an earlier expiry of the capital range. The capital increase or reduction may be effected by issuing up
to 44,520,973 common shares and canceling up to 44,520,973 common shares, as applicable, or by increasing or reducing the par value of
the existing shares within the limits of the capital range, or by simultaneous reduction and re-increase of the share capital. If our
share capital increases as a result of a share issue from conditional capital (see next subsection), the upper and lower limits of the
capital range will increase in an amount corresponding to such increase.
In the event of a capital increase within the capital range, the board
of directors has to determine the type of contributions, the issue price and the date on which the dividend entitlement starts.
In the event of a capital reduction within the capital range, the board of directors has to determine the use of the reduction amount,
to the extent necessary.
In a capital increase within the capital range, the board of directors
is authorized by our articles of association to withdraw or to limit the pre-emptive subscription rights of shareholders, and to
allocate them to third parties or to us, in the event that the newly issued shares are issued under the following circumstances:
| · | if the issue price of the new registered shares is determined by reference
to the market price; |
| · | for raising of equity capital (including private placements) in a fast and
flexible manner, which would not be possible, or might only be possible with great difficulty or delays or at significantly less
favorable conditions, without the exclusion of the statutory pre-emptive subscription rights of the existing shareholders; |
| · | for the acquisition of an enterprise, parts of an enterprise or participations,
for the acquisition of products, intellectual property or licenses by or for investment projects of the Company or any of its group
companies, or for the financing or refinancing of any of such transactions through a placement of shares; |
| · | for purposes of broadening the shareholder constituency of the Company in
certain geographic, financial or investor markets, for purposes of the participation of strategic partners, including financial
investors, or in connection with the listing of new shares on domestic or foreign stock exchanges; |
| · | for purposes of granting an over-allotment option or an option to purchase
additional shares in a placement or sale of shares to the respective initial purchaser(s) or underwriter(s); |
| · | for the participation of members of the board of directors, members of the
executive committee, employees, contractors, consultants or other persons performing services for the benefit of the Company or
any of its group companies; |
| · | following a shareholder or a group of shareholders acting in concert having
accumulated shareholdings in excess of 20% of our share capital registered in the Commercial Register without having submitted
to all other shareholders a takeover offer recommended by the board of directors; |
| · | for the defense of an actual, threatened or potential takeover bid, that
the board of directors, upon consultation with an independent financial adviser retained by it, has not recommended to the shareholders
acceptance on the basis that the board of directors has not found the takeover bid to be financially fair to the shareholders or
not to be in the Company’s interest; or |
| · | for other valid grounds in the sense of Article 652b para. 2 of the CO. |
This authorization to withdraw or to limit the pre-emptive subscription
of shareholders is exclusively linked to our capital range. If the capital range lapses for any reasons, such as if an ordinary capital
increase is completed, the authorization to withdraw or to limit the pre-emptive subscription rights lapses simultaneously with
the capital range.
We have agreed not to use the foregoing authorization to withdraw
or to limit the pre-emptive subscription rights of shareholders, and to allocate them to third parties or to us, in certain circumstances.
Specifically, we will not restrict the preemptive rights of Redmile Group, LLC (“Redmile”) or its affiliates based on Article
4a(4)(g) of the articles of association or restrict the advance subscription rights of Redmile or its affiliates based on Article 4c(3)
of the articles of association as long as (i) Redmile (including its affiliates and any other person or entity forming a “group”
(as defined in Rule 13d-5 under the Exchange Act)) does not directly or indirectly control, own or have the right to control or own, collectively,
shares representing more than 20% of the Company’s share capital or (ii) Redmile (including its affiliates and any other person
or entity forming a “group” (as defined in Rule 13d-5 under the Exchange Act)) directly or indirectly controls, owns or has
the right to control or own, collectively, shares representing more than 20% of the Company’s share capital but the board of directors
determines that Redmile does not have an intent to effect a change of control of the Company.
Our Conditional Share Capital
Conditional Share Capital for Warrants and Convertible Bonds
Our nominal share capital may be increased, including to prevent takeovers
and changes in control, by a maximum aggregate amount of CHF 1,432,776.24 through the issuance of not more than 17,909,703 common
shares, which would have to be fully paid-in, each with a par value of CHF 0.08 per share, by the exercise of option and conversion
rights granted in connection with warrants, convertible bonds or similar instruments of the Company or one of our subsidiaries.
Shareholders will not have pre-emptive subscription rights in such circumstances, but will have advance subscription rights to
subscribe for such warrants, convertible bonds or similar instruments. The holders of warrants, convertible bonds or similar instruments
are entitled to the new shares upon the occurrence of the applicable conversion feature.
When issuing convertible bonds, warrants or similar instruments, the
board of directors is authorized to withdraw or to limit the advance subscription right of shareholders:
| · | for the purpose of financing or refinancing, or the payment for, the acquisition
of enterprises, parts of enterprises, participations, intellectual property rights, licenses or investments; |
| · | if the issuance occurs in domestic or international capital markets, including
private placements; |
| · | following a shareholder or a group of shareholders acting in concert having
accumulated shareholdings in excess of 20% of the share capital registered in the Commercial Register without having submitted
to all other shareholders a takeover offer recommended by the board of directors; |
| · | for the defense of an actual, threatened or potential takeover bid that the
board of directors, upon consultation with an independent financial adviser retained by it, has not recommended to the shareholders
to accept on the basis that the board of directors has not found the takeover bid to be financially fair to the shareholders or
not to be in the Company’s interest; or |
| · | if the convertible bonds, warrants or similar instruments are issued on appropriate
terms. |
To the extent that the advance subscription rights are withdrawn or
limited, (i) the term to exercise the convertible bonds, warrants or similar instruments may not exceed fifteen years from the
date of issue of the respective instrument and (ii) the conversion, exchange or exercise price of the convertible bonds,
warrants or similar instruments has to be set with reference to or
be subject to change based upon the valuation of the Company’s equity or market conditions.
Conditional Share Capital for Equity Incentive Plans
Our nominal share capital may, to the exclusion of the pre-emptive
subscription rights and advance subscription rights of shareholders, be increased by a maximum aggregate amount of CHF 936,000
through the (direct or indirect) issuance of not more than 11,700,000 common shares, which would have to be fully paid-in, each
with a par value of CHF 0.08 per share, by the exercise or mandatory exercise of options, other rights to receive or acquire shares
or conversion rights that have been granted to or imposed on employees, members of the board of directors, contractors or consultants
of the Company or of one of our subsidiaries or other persons providing services to the Company or to a subsidiary through one
or more equity incentive plans created by the board of directors.
Uncertificated Securities
Our shares are in the form of uncertificated securities (droits-valeurs,
within the meaning of Article 973c of the CO). In accordance with Article 973c of the CO, we maintain a non-public register of
uncertificated securities (registre des droits-valeurs). We may at any time convert uncertificated securities into
share certificates (including global certificates), one kind of certificate into another, or share certificates (including global
certificates) into uncertificated securities. Following entry in the share register, a shareholder may at any time request from
us a written confirmation in respect of his or her shares. Shareholders are not entitled, however, to request the conversion and/or
printing and delivery of share certificates. We may print and deliver certificates for shares at any time.
General Meeting of Shareholders
Ordinary/Extraordinary Meetings, Powers
The general meeting of shareholders is our supreme corporate body.
Under Swiss law, an annual general meeting of shareholders must be held annually within six months after the end of a corporation’s
financial year. In our case, this generally means on or before June 30. In addition, extraordinary general meetings of shareholders
may be held.
A general meeting of shareholders may take place in or outside Switzerland
and at different places simultaneously if the votes of the participants are immediately transmitted to all meeting venues (multilocal
shareholders’ meeting). The board of directors may allow shareholders that are not present at the meeting venue of the general meeting
of shareholders to participate and exercise their rights electronically (“hybrid shareholder meeting”). Our articles of association
also allow for general meetings of shareholders without a physical meeting venue but that takes place using electronic means (“virtual
shareholder meeting”).
According to our articles of association, the following powers are
vested exclusively in the general meeting of shareholders:
| · | adopting and amending the articles of association, including the change of
a company’s purpose or domicile; |
| · | electing the members of the board of directors, the chairperson of the board
of directors, the members of the compensation committee, the auditors and the independent proxy; |
| · | approving the business report, the annual statutory and consolidated financial
statements, and deciding on the allocation of profits as shown on the balance sheet, in particular with regard to dividends; |
| · | determining the interim dividend and approving the requisite interim financial
statements; |
| · | resolving on the repayment of the statutory capital reserve (réserve
légale issue du capital); |
| · | approving the aggregate amount of compensation of members of the board of
directors and the executive committee; |
| · | discharging the members of the board of directors and the executive committee
from liability with respect to their conduct of business; |
| · | resolving on the delisting of the company's equity securities; |
| · | approving the report on non-financial matters (if applicable); |
| · | dissolving a company with or without liquidation; and |
| · | deciding matters reserved to the general meeting of shareholders by law or
the articles of association or submitted to it by the board of directors. |
An extraordinary general meeting of shareholders may be called by a
resolution of the board of directors or the general meeting of shareholders or, under certain circumstances, by a company’s
auditors, liquidator or the representatives of bondholders, if any. In addition, our articles of association require the board
of directors to convene an extraordinary general meeting of shareholders if shareholders representing at least 5% of our share
capital or voting rights request such general meeting of shareholders in writing. A request for an extraordinary general meeting
of shareholders must set forth the items to be discussed and the proposals to be acted upon. Further, the board of directors must
convene an extraordinary general meeting of shareholders and propose financial restructuring measures if, based on our stand-alone
annual statutory balance sheet, half of our share capital and statutory reserves are not covered by our assets and a contemplated
restructuring measure falls within the competence of the general meeting of shareholders.
Voting and Quorum Requirements
Shareholder resolutions and elections (including elections of members
of the board of directors) require the affirmative vote of the majority of shares represented at the general meeting of shareholders,
unless otherwise stipulated by law or our articles of association.
Under our articles of association, a resolution of the general meeting
of shareholders passed by two-thirds of the votes and the majority of the par value of the shares, each as represented at
the meeting, is required for:
| · | amending the Company’s corporate purpose; |
| · | creating shares with preference rights; |
| · | cancelling or amending the transfer restrictions of shares; |
| · | creating conditional share capital or a capital range; |
| · | increasing share capital out of equity, against contributions in-kind, by
set-off against a claim or granting of specific benefits; |
| · | limiting or withdrawing shareholder’s pre-emptive subscription rights; |
| · | changing the currency of the share capital; |
| · | introducing a casting vote of the chairperson at the general meeting of shareholders; |
| · | changing the Company’s domicile; |
| · | delisting the company's equity securities; |
| · | introducing an arbitration clause in the articles of association; |
| · | resolving on the consolidation of shares (reverse split); |
| · | amending or repealing the voting and recording restrictions, the provision
setting a maximum board size, the indemnification provision for the board of directors and the executive committee or the forum selection
clause set forth in our articles of association; |
| · | converting registered shares into bearer shares; |
| · | removing the chairperson or any member of the board of directors before the
end of his or her term of office; and |
| · | dissolving or liquidating the Company. |
The same voting requirements apply to resolutions regarding transactions
among corporations based on Switzerland’s Federal Act on Mergers, Demergers, Transformations and the Transfer of Assets of 2003,
as amended (the “Swiss Merger Act”). See “—Articles of Association—Compulsory Acquisitions; Appraisal Rights.”
In accordance with Swiss law and generally accepted business practices,
our articles of association do not provide for quorum requirements generally applicable to general meetings of shareholders. To this extent,
our practice varies from NYSE listing standards, which require an issuer to provide in its bylaws for a generally applicable quorum and
that such quorum may not be less than one-third of the outstanding voting shares.
Notice
General meetings of shareholders must be convened by the board of directors
at least 20 days before the date of the meeting. The general meeting of shareholders is convened by way of a notice appearing in
our official publication medium, currently the Swiss Official Gazette of Commerce, or by including the notice in the proxy statement.
Registered shareholders may also be informed in a form that allows proof by text. The notice of a general meeting of shareholders
must state the date, the starting and end time, the form and location of the meeting, the items on the agenda, the motions of the
board of directors or of any shareholders including a short explanation, as well as the name and address of the independent representative.
A resolution on a matter which is not on the agenda may not be passed at a general meeting of shareholders, except for motions
to convene an extraordinary general meeting of shareholders or to initiate a special investigation, on which the general meeting
of shareholders may vote at any time. No previous notification is required for motions concerning items included in the agenda
or for debates that do not result in a vote.
All owners or representatives of our shares may, if no objection is
raised, hold a general meeting of shareholders without complying with the formal requirements for convening general meetings of shareholders
(a universal meeting). This universal meeting of shareholders may discuss and pass binding resolutions on all matters within the
purview of the general meeting of shareholders, provided that the owners or representatives of all the shares are present at the meeting.
Agenda Requests
Pursuant to our articles of association, one or more shareholders whose
combined shareholdings represent at least 0.5% of the share capital or the voting rights may request that an item be included
in the agenda for a general meeting of shareholders or that a proposal relating to an agenda item be included in the notice convening
the general meeting of shareholders.
To be timely, the shareholder’s request must be received
by us generally at least 90 calendar days in advance of the meeting. The request must be made in writing and contain, for each
of the agenda items, the following information:
| · | a brief description of the business desired to be brought before the general
meeting of shareholders and the reasons for conducting such business at the general meeting of shareholders; |
| · | the motions regarding the agenda item; |
| · | the name and address, as they appear in the share register, of the shareholder
proposing such business; |
| · | the number of shares which are beneficially owned by such shareholder (including
documentary support of such beneficial ownership); |
| · | the dates upon which the shareholder acquired such shares; |
| · | any material interest of the proposing shareholder in the proposed business; |
| · | a statement in support of the matter; and |
| · | all other information required under the applicable laws and stock exchange
rules. |
In addition, if the shareholder intends to solicit proxies from the
shareholders of a company, such shareholder shall notify the company of this intent in accordance with applicable SEC rules.
Our business report, the compensation report and the auditor’s
report must be published or otherwise made accessible to our shareholders no later than 20 days prior to the general meeting of
shareholders. Shareholders of record may be notified of this in writing.
Minutes
We are required to make available the resolutions and election results
of our general meeting of shareholders electronically within 15 calendar days after the meeting. In addition, each shareholder may request
that the minutes be made available to them within 30 calendar days after the meeting.
Voting Rights
Each of our common shares entitles a holder to one vote. The common
shares are not divisible. The right to vote and the other rights of share ownership may only be exercised by shareholders (including any
nominees) or usufructuaries who are entered in the share register at a cut-off date determined by the board of directors. Those entitled
to vote in the general meeting of shareholders may be represented by the independent proxy holder (annually elected by the general meeting
of shareholders), by its legal representative or by any other person with written authorization to act as proxy. The chairperson has the
power to decide whether to recognize a power of attorney.
Our articles of association contain provisions that prevent investors
from acquiring voting rights exceeding 15% of our issued share capital. Specifically, if an individual or legal entity acquires common
shares and, as a result, directly or indirectly, has voting rights with respect to more than 15% of the registered share capital recorded
in the Commercial Register, the registered shares exceeding the limit of 15% shall be entered in the share register as shares without
voting rights (limitation à l’inscription). This restriction applies equally to parties acting in concert and to shares
held or acquired via a nominee, including via Cede & Co., New York (or any successor), as the nominee of The Depository Trust Company
(“DTC”), New York, acting in its capacity as clearing nominee. Specifically, if shares are being held by a nominee for third-party
beneficiaries, which control (alone or together with third parties) voting rights with respect to more than 15% of the share capital recorded
in the Commercial Register, our articles of association
provide that the board of directors may cancel the registration of
the shares with voting rights held by such nominee in excess of the limit of 15%. Furthermore, our articles of association contain provisions
that allow the board of directors to make the registration with voting rights of shares held by a nominee subject to conditions, limitations
and reporting requirements or to impose or adjust such conditions, limitations and requirements once registered. However, any shareholders
who held more than 15% prior to our initial public offering remain registered with voting rights for such shares. Furthermore, the board
of directors may in special cases approve exceptions to these restrictions.
Dividends and Other Distributions
Our board of directors may propose to shareholders that a dividend
or interim dividend or other distribution be paid but cannot itself authorize the distribution. Dividend and interim dividend payments
require a resolution passed by a majority of the shares represented at a general meeting of shareholders. In addition, our auditors
must confirm that the dividend proposal of our board of directors conforms to Swiss statutory law and our articles of association.
Under Swiss law, we may pay dividends only if we have sufficient distributable
profits from the previous or current business year (bénéfice résultant du bilan) or brought forward
from the previous business years (report des bénéfices), or if we have distributable capital reserves (réserve
légale issue du capital), each as evidenced by audited stand-alone statutory annual or interim financial statements
prepared pursuant to Swiss law, and after allocations to reserves required by Swiss law and by the articles of association have
been deducted.
Under the CO, at least 5% of our annual profit must be retained as
statutory profit reserve (réserve légale). If there is a loss carried forward, such loss must be eliminated before
allocation to the statutory profit reserve. The statutory profit reserve shall be accumulated until it reaches, together with the statutory
capital reserve, 50% of our share capital recorded in the Commercial Register. In addition, we have to allocate, among other things, the
net proceeds of share issuances to the statutory capital reserve. The CO permits us to accrue additional reserves. Further, a purchase
of our own shares (whether by us or a subsidiary) reduces the distributable reserves in an amount corresponding to the purchase price
of such own shares. Finally, the CO under certain circumstances requires the creation of revaluation reserves which are not distributable.
Distributions out of issued share capital (i.e., the aggregate par
value of our issued shares) are not allowed and may be made only by way of an ordinary capital reduction or within a capital range
that (also) allows for a capital reduction (see “Description of Share Capital and Articles of Association—Articles of Association—Ordinary
Capital Increase, Capital Range and Conditional Share Capital”). An ordinary capital reduction requires a resolution passed by a
majority of the shares represented at a general meeting of shareholders. The board of directors must publish a call to creditors in the
Swiss Official Gazette of Commerce in which creditors are advised that they may request, subject to certain conditions, security for their
claims within 30 days of the publication of the creditor call. A licensed audit expert must then confirm, based on the results
of the call to creditors, that the claims of the creditors remain fully covered despite the reduction in our share capital recorded
in the Commercial Register. If all requirements for an ordinary capital reduction have been met, the board of directors has to amend the
articles of association in a public deed. Our share capital may be reduced to a level below CHF 100,000 only if and to the extent
that at the same time the statutory minimum share capital of CHF 100,000 is reestablished by sufficient new fully paid-up capital.
An ordinary capital reduction must be completed within six months after the resolution of the general meeting of shareholders.
Our board of directors determines the date on which the dividend entitlement
starts. Dividends are usually due and payable shortly after the shareholders have passed the resolution approving the payment,
but shareholders may also resolve at the annual general meeting of shareholders to pay dividends in quarterly or other installments.
Transfer of Shares
Shares in uncertificated form (droits-valeurs) may only be transferred
by way of assignment. Shares or the beneficial interest in shares, as applicable, credited in a securities account may only be transferred
when a credit of the relevant intermediated securities to the acquirer’s securities account is made in accordance with applicable
rules. Our articles of association provide that in the case of securities held with an intermediary such as a registrar, transfer agent,
trust corporation, bank or similar entity, any transfer, grant of a security interest or usufructuary right in such intermediated securities
and the appurtenant rights associated therewith requires the cooperation of the intermediary in order for such transfer, grant of a security
interest or usufructuary right to be valid against us.
Voting rights may be exercised only after a shareholder has been entered
in the share register (registre des actions) with his or her name and address (in the case of legal entities, the registered office)
as a shareholder with voting rights. For a discussion of the restrictions applicable to the control and exercise of voting rights, see
“Description of Share Capital and Articles of Association—Articles of Association—Voting Rights.”
Inspection of Books and Records
Under the CO, a shareholder has a right to inspect the share register
with respect to his or her own shares and otherwise to the extent necessary to exercise his or her shareholder rights. No other
person has a right to inspect the share register. Shareholders holding in the aggregate at least 5% of our nominal share capital
or of our voting rights have the right to inspect our books and correspondence, subject to the safeguarding of our business secrets and
other legitimate interests. Our board of directors is required to decide on an inspection request within four months after receipt of
such request. Denial of the request will need to be justified in writing. If an inspection request is denied by the board of directors,
shareholders may request the order of an inspection by the court within 30 days. See “Comparison of Swiss Law and Delaware Law—Inspection
of books and records.”
Special Investigation
If a shareholder has exercised its information or inspection rights,
such shareholder may propose to the general meeting of shareholders that specific facts be examined by a special examiner
in a special investigation. If the general meeting of shareholders approves the proposal, we or any shareholder may, within 30
calendar days after the general meeting of shareholders, request a court at our registered office (currently Epalinges, Canton
of Vaud, Switzerland) to appoint a special examiner. If the general meeting of shareholders rejects the request, one or more shareholders
representing at least 5% of our share capital or voting rights may request that the court appoint a special examiner. The court
will issue such an order if the petitioners can demonstrate that members of the board of directors or our executive committee infringed
the law or our articles of association and that such violation is suitable to cause a damage to the Company or the shareholders. The costs
of the investigation would generally be allocated to us and only in exceptional cases to the petitioners.
Compulsory Acquisitions; Appraisal Rights
Business combinations and other transactions that are governed by the
Swiss Merger Act (i.e., mergers, demergers, transformations and certain asset transfers) are binding on all shareholders. A statutory
merger or demerger requires approval of two-thirds of the shares represented at a general meeting of shareholders and the majority
of the par value of the shares represented.
If a transaction under the Swiss Merger Act receives all of the necessary
consents, all shareholders are compelled to participate in such transaction.
Swiss corporations may be acquired by an acquirer through the direct
acquisition of the shares of the Swiss corporation. The Swiss Merger Act provides for the possibility of a so-called “cash-out”
or “squeeze-out” merger with the approval of holders of 90% of the issued shares. In these limited circumstances, minority
shareholders of the corporation being acquired may be compensated in a form other than through shares of the acquiring corporation (for
instance, through cash or securities of a parent corporation of the acquiring corporation or of another corporation). For business combinations
effected in
the form of a statutory merger or demerger and subject to Swiss law,
the Swiss Merger Act provides that if equity rights have not been adequately preserved or compensation payments in the transaction are
unreasonable, a shareholder may request the competent court to determine a reasonable amount of compensation.
In addition, under Swiss law, the sale of “all or substantially
all of our assets” by us may require the approval of two-thirds of the number of shares represented at a general meeting
of shareholders and the majority of the par value of the shares represented. Whether a shareholder resolution is required depends
on the particular transaction, including whether the following test is satisfied:
| · | a core part of our business is sold without which it is economically impracticable
or unreasonable to continue to operate the remaining business; |
| · | our assets, after the divestment, are not invested in accordance with our
corporate purpose as set forth in the articles of association; and |
| · | the proceeds of the divestment are not earmarked for reinvestment in accordance
with our corporate purpose but, instead, are intended for distribution to our shareholders or for financial investments unrelated to our
corporate purpose. |
A shareholder of a Swiss corporation participating in certain major
corporate transactions may, under certain circumstances, be entitled to appraisal rights. As a result, such shareholder may, in addition
to the consideration (be it in shares or in cash) receive an additional amount to ensure that the shareholder receives the fair value
of the shares held by the shareholder. Following a statutory merger or demerger, pursuant to the Swiss Merger Act, shareholders can file
an appraisal action against the surviving company. If the consideration is deemed inadequate, the court will determine an adequate compensation
payment.
Board of Directors
Our articles of association provide that the board of directors shall
consist of at least three and not more than nine members.
The members of the board of directors and the chairperson are elected
annually by the general meeting of shareholders for a period until the completion of the subsequent annual general meeting of shareholders
and are eligible for re-election. Each member of the board of directors must be elected individually.
Powers
According to our articles of association, the board of directors has
the following non-delegable and inalienable powers and duties:
| · | the ultimate direction of the business of the Company and issuing of the
relevant directives; |
| · | laying down the organization of the Company; |
| · | formulating accounting procedures, financial controls and financial planning; |
| · | nominating and removing persons entrusted with the management and representation
of the Company and regulating the power to sign for the Company; |
| · | the ultimate supervision of those persons entrusted with management of the
Company, with particular regard to adherence to law, our articles of association, and regulations and directives of the Company; |
| · | preparing the annual report, the compensation report and, if applicable,
the report on non-financial matters and other reports as required by law; |
| · | preparing for the general meeting of shareholders and carrying out
its resolutions; and |
| · | submitting a petition for debt-restructuring moratorium and informing the
court in case of over-indebtedness. |
The board of directors may, while retaining such non-delegable and
inalienable powers and duties, delegate some of its powers, in particular direct management, to a single or to several of its members,
committees or to third parties (such as executive officers) who need be neither members of the board of directors nor shareholders.
Pursuant to Swiss law and our articles of association, details of the delegation and other procedural rules such as quorum requirements
have been set in the organizational rules established by the board of directors.
Indemnification of Executive Officers and Directors
Subject to Swiss law, our articles of association provide for indemnification
of the existing and former members of the board of directors and the executive committee and their heirs, executors and administrators,
against liabilities arising in connection with the performance of their duties in such capacity, and permits us to advance the expenses
of defending any act, suit or proceeding to our directors and executive officers to the extent not included in insurance coverage or advanced
by third parties.
In addition, under general principles of Swiss employment law, an employer
may be required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of his or her duties
under the employment agreement with the employer. See “Comparison of Swiss Law and Delaware Law—Indemnification of directors
and executive officers and limitation of liability.”
We have entered into indemnification agreements with each of the members
of our board of directors and executive officers.
Conflicts of Interest, Management Transactions
The members of the board of directors and the executive committee are
required to immediately and fully inform the board of directors about conflicts of interests concerning them. The board of directors is
furthermore required to take measures in order to protect the interests of the company. More generally, the CO requires our directors
and executive officers to safeguard the Company’s interests and imposes a duty of loyalty and duty of care on our directors
and executive officers. This rule is generally understood to disqualify directors and executive officers from participation in
decisions that directly affect them. Our directors and executive officers are personally liable to us for breaches of these obligations.
In addition, Swiss law contains provisions under which directors and all persons engaged in the Company’s management are
liable to the Company, each shareholder and the Company’s creditors for damages caused by an intentional or negligent violation
of their duties. Furthermore, Swiss law contains a provision under which payments made to any of the Company’s shareholders
or directors or any person related to any such shareholder or director, other than payments made at arm’s length, must be
repaid to the Company if such shareholder or director acted in bad faith.
Our board of directors has adopted a Code of Business Conduct and Ethics
and other policies that cover a broad range of matters, including the handling of conflicts of interest.
Principles of the Compensation of the Board of Directors and
the Executive Committee
Pursuant to Swiss law, the aggregate amount of compensation of the
board of directors and the persons whom the board of directors has, fully or partially, entrusted with the management (which
we refer to as our “executive committee”) of the Company has to be submitted to our shareholders for approval each
year. Our executive committee currently comprises the Chief Executive
Officer, the Chief Financial Officer, the Chief Scientific Officer and the Swiss Managing Director.
The board of directors must issue, on an annual basis, a written compensation
report that must be reviewed by our auditors. The compensation report must disclose, among other things, all compensation granted
by the Company, directly or indirectly, to current members of the board of directors and the executive committee and, to the extent
related to their former role within the Company or not on customary market terms, to former members of the board of directors and
former executive officers. The disclosure concerning compensation, loans and other forms of indebtedness must include the
aggregate amount for the board of directors and the executive committee, respectively, as well as the particular amount for each member
of the board of directors and for the highest-paid executive officer, specifying the name and function of each of these persons. If variable
compensation is approved prospectively, as is currently the case with the Company, our board of directors must submit the compensation
report to a non-binding vote of the general meeting of shareholders.
We are prohibited from granting certain forms of compensation to members
of our board of directors and executive committee, such as:
| · | severance payments (compensation due until the termination of a contractual
relationship does not qualify as severance payment); |
| · | incentive fees for the acquisition or transfer of companies, or parts thereof,
by the Company or by companies being, directly or indirectly, controlled by us; |
| · | loans, other forms of indebtedness, pension benefits not based on occupational
pension schemes and performance-based compensation not provided for in the articles of association; and |
| · | equity-based compensation not provided for in the articles of association. |
Compensation to members of the board of directors and the executive
committee for activities in entities that are, directly or indirectly, controlled by the Company is prohibited if (i) the compensation
would be prohibited if it were paid directly by the Company, (ii) the articles of association do not provide for it, or (iii) the
compensation has not been approved by the general meeting of shareholders.
Every year, the general meeting of shareholders has to vote on the
proposals of the board of directors with respect to:
| · | the maximum aggregate amount of compensation of the board of directors for
the term of office until the next annual general meeting of shareholders; and |
| · | the maximum aggregate amount of fixed compensation of the executive committee
for the following financial year; and |
| · | the maximum aggregate amount of variable compensation of the executive committee
for the current financial year. |
The board of directors may submit for approval at the general meeting
of shareholders deviating or additional proposals relating to the same or different periods.
If, at the general meeting of shareholders, the shareholders do not
approve a compensation proposal of the board of directors, the board of directors must prepare a new proposal, taking into account all
relevant factors, and submit the new proposal for approval by the same general meeting of shareholders, at a subsequent extraordinary
general meeting of shareholders or the next annual general meeting of shareholders.
If we appoint new members of the executive committee after the general
meeting of shareholders has approved the compensation of the executive committee for the relevant period and such compensation is insufficient
to also cover the new members' compensation, our articles of association allow us to pay each new member an amount not exceeding the aggregate
amount of (maximum) compensation of the executive committee last approved.
In addition to fixed compensation, members of the board of directors
and the executive committee may be paid variable compensation, depending on the achievement of certain performance criteria. The performance
criteria may include individual targets, targets of the Company or parts thereof and targets in relation to the market, other companies
or comparable benchmarks, taking into account the position and level of responsibility of the recipient of the variable compensation.
The board of directors or, where delegated to it, the compensation committee shall determine the relative weight of the performance criteria
and the respective target values as well as their achievement.
Compensation may be paid or granted in the form of cash, shares, financial
instruments, in kind, or in the form of other types of benefits. The board of directors or, where delegated to it, the compensation committee
shall determine grant, vesting, exercise and forfeiture conditions.
Borrowing Powers
Neither Swiss law nor our articles of association restricts our power
to borrow and raise funds. The decision to borrow funds is made by or under the direction of our board of directors, and no approval by
the shareholders is required in relation to any such borrowing.
Repurchases of Shares and Purchases of Own Shares
The CO limits our ability to repurchase and hold our own shares. We
and our subsidiaries may repurchase shares only to the extent that (i) we have freely distributable reserves in the amount of the
purchase price; and (ii) the aggregate par value of all shares held by us does not exceed 10% of our share capital. Pursuant to Swiss
law, where shares are acquired in connection with a transfer restriction set out in the articles of association, the foregoing upper limit
is 20%. If we own shares that exceed the threshold of 10% of our share capital, the excess must be sold or cancelled by means of a capital
reduction within two years.
Shares held by us or our subsidiaries are not entitled to vote at the
general meeting of shareholders but are entitled to the economic benefits applicable to the shares generally, including dividends and
pre-emptive subscription rights in the case of share capital increases.
In addition, selective share repurchases are only permitted under certain
circumstances. Within these limitations, as is customary for Swiss corporations, we may, subject to applicable law, purchase and sell
our own shares from time to time in order to meet imbalances of supply and demand, to provide liquidity and to even out variances in the
market price of shares.
Notification and Disclosure of Substantial Share Interests
The disclosure obligations generally applicable to shareholders of
Swiss corporations under the Federal Act on Financial Market Infrastructures and Market Conduct in Securities and Derivatives Trading,
or the Financial Market Infrastructure Act (the “FMIA”), do not apply to us since our shares are not listed on a Swiss exchange.
Mandatory Bid Rules
The obligation of any person or group of persons that acquires more
than one-third of a company’s voting rights to submit a cash offer for all the outstanding listed equity securities of the relevant
company at a minimum price pursuant to the FMIA does not apply to us since our shares are not listed on a Swiss exchange.
Nonresident or Foreign Owners
Other than limitations that apply to all holders of our common shares,
there are no limitations on the right of nonresident or foreign owners of our common shares from holdings or voting such common shares
imposed by Swiss law or our articles of association.
Exchange Controls
Other than sanctions against specific countries, individuals, and organizations,
there are no governmental laws, decrees, regulations or other legislation in Switzerland affecting the remittance of dividends, interest
and other payments to nonresident holders of our common shares.
Stock Exchange Listing
Our common shares are listed on the NYSE under the symbol “ADCT.”
The Depository Trust Company
Each person owning a beneficial interest in common shares held through
DTC must rely on the procedures thereof and on institutions that have accounts therewith to exercise any rights of a holder of the shares.
Transfer Agent and Registrar of Shares
Our share register is kept by Computershare Trust Company, N.A., which
acts as transfer agent and registrar. The share register reflects only record owners of our shares. Swiss law does not recognize fractional
share interests.
Comparison of Swiss Law and Delaware
Law
The Swiss laws applicable to Swiss corporations and their shareholders
differ from laws applicable to U.S. corporations and their shareholders. The following table summarizes significant differences
in shareholder rights pursuant to the provisions of the CO, by which our Company is governed, and the Delaware General Corporation
Law applicable to companies incorporated in Delaware and their shareholders. Please note that this is only a general summary of
certain provisions applicable to companies in Delaware. Certain Delaware companies may be permitted to exclude certain of
the provisions summarized below in their charter documents.
| DELAWARE CORPORATE LAW |
SWISS CORPORATE LAW |
| |
|
| Mergers and similar arrangements |
| |
| Under the Delaware General Corporation Law, with certain exceptions, a merger, consolidation, sale, lease or transfer of all or substantially all of the assets of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote thereon. A shareholder of a Delaware corporation participating in certain major corporate transactions may, under certain circumstances, be entitled to appraisal rights pursuant to which such shareholder may receive cash in the amount of the fair value of the shares held by such shareholder (as determined by a court) in lieu of the consideration such shareholder would otherwise receive in the transaction. The Delaware General Corporation Law also provides that a parent corporation, by resolution of its board of directors, may merge with any |
Under Swiss law, with certain exceptions, a merger or a demerger of the corporation or a sale of all or substantially all of the assets of a corporation must be approved by two-thirds of the voting rights represented at the respective general meeting of shareholders as well as the majority of the par value of shares represented at such general meeting of shareholders. A shareholder of a Swiss corporation participating in a statutory merger or demerger pursuant to the Swiss Merger Act (Loi sur la fusion) can file a lawsuit against the surviving company. If the consideration is deemed “inadequate,” such shareholder may, in addition to the consideration (be it in shares or in cash) receive an additional amount to ensure that such shareholder receives the fair value of the shares held by such shareholder. Swiss law also provides that if the merger agreement provides only for a |
| subsidiary, of which it owns at least 90.0% of each class of capital stock without a vote by the shareholders of such subsidiary. Upon any such merger, dissenting shareholders of the subsidiary would have appraisal rights. |
compensation payment, at least 90% of all members
in the transferring legal entity who are entitled to vote shall approve the merger agreement. |
| |
|
| Shareholders’ suits |
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| Class actions and derivative actions generally are available to shareholders of a Delaware corporation for, among other things, breach of fiduciary duty, corporate waste and actions not taken in accordance with applicable law. In such actions, the court has discretion to permit the winning party to recover attorneys’ fees incurred in connection with such action. |
Class actions and derivative actions as such are not available under Swiss law. Nevertheless, certain actions may have a similar effect. A shareholder is entitled to bring suit against directors, officers or liquidators for breach of their duties and claim the payment of the company’s losses or damages to the corporation and, in some cases, to the individual shareholder. Likewise, an appraisal lawsuit won by a shareholder may indirectly compensate all shareholders. In addition, to the extent that U.S. laws and regulations provide a basis for liability and U.S. courts have jurisdiction, a class action may be available. |
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Under Swiss law, the winning party is generally entitled to recover a limited amount of attorneys’ fees incurred in connection with such action. The court has discretion to permit the shareholder who lost the lawsuit to recover attorneys’ fees incurred to the extent that he or she acted in good faith. |
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| Shareholder vote on board and management compensation |
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| Under the Delaware General Corporation Law, the board of directors has the authority to fix the compensation of directors, unless otherwise restricted by the certificate of incorporation or bylaws. |
Pursuant to Swiss law, the general meeting of shareholders has the non-transferable right, amongst others, to vote separately and bindingly on the aggregate amount of compensation of the members of the board of directors, of the executive committee and of the advisory boards. If variable compensation is approved for a future period rather than for a past period, the compensation report is subject to a non-binding vote of the general meeting of shareholders. |
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| Annual vote on board renewal |
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Unless directors are elected by written consent in lieu of an
annual meeting, directors are elected in an annual meeting of shareholders on a date and at a time designated by or in the
manner provided in the bylaws. Re-election is possible.
Classified boards are permitted.
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The general meeting of shareholders elects the members of the board of directors, the chairperson of the board of directors and the members of the compensation committee individually and annually for a term of office until the end of the following general meeting of shareholders. Re-election is possible. |
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| Indemnification of directors and executive officers and limitation of liability |
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| The Delaware General Corporation Law provides that a certificate
of incorporation may contain a |
Under Swiss corporate law, an indemnification by the corporation
of a director or member of the |
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provision eliminating or limiting the personal liability of directors and officers (but
not other controlling persons) of the corporation for monetary damages for breach of a fiduciary duty as a director, except
no provision in the certificate of incorporation may eliminate or limit liability of:
·
a
director or officer for any breach of the duty of loyalty to the corporation or its shareholders;
·
a
director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
·
a
director for statutory liability for unlawful payment of dividends or unlawful share purchase or redemption;
·
a
director or officer for any transaction from which the director or officer derived an improper personal benefit;
or
·
an
officer in any action by or in right of the corporation.
A Delaware corporation may indemnify any person who was or is
a party or is threatened to be made a party to any proceeding, other than an action by or on behalf of the corporation,
because the person is or was a director or officer, against liability incurred in connection with the proceeding if the
director or officer acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests
of the corporation, and the director or officer, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful.
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executive committee in relation to potential personal liability is not effective to the extent
the director or member of the executive committee intentionally or negligently violated his or her corporate duties towards
the corporation (certain views advocate that at least a grossly negligent violation is required to exclude the indemnification).
Furthermore, the general meeting of shareholders may discharge (release) the directors and members of the executive committee
from liability for their conduct to the extent the respective facts are known to shareholders. Such discharge is effective
only with respect to claims of the company and of those shareholders who approved the discharge or who have since
acquired their shares in full knowledge of the discharge. Most violations of corporate law are regarded as violations of
duties towards the corporation rather than towards the shareholders. In addition, indemnification of other controlling persons
is not permitted under Swiss corporate law, including shareholders of the corporation.
The articles of association of a Swiss corporation may also
set forth that the corporation shall indemnify and hold harmless, to the extent permitted by the law, the directors and
executive managers out of assets of the corporation against threatened, pending or completed actions.
Also, a corporation may enter into and pay for directors’
and officers’ liability insurance, which may cover negligent acts as well.
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Unless ordered by a court, any foregoing indemnification is
subject to a determination that the director or officer has met the applicable standard of conduct:
·
by
a majority vote of the directors who are not parties to the proceeding, even though less than a quorum;
·
by
a committee of directors designated by a majority vote of the eligible directors, even though less than a quorum;
·
by
independent legal counsel in a written opinion if there are no eligible directors, or if the eligible directors so direct;
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by
the shareholders.
Moreover, a Delaware corporation may not indemnify a director
or officer in connection with any proceeding in which the director or officer has been adjudged to be liable to the corporation
unless and only to the extent that the court determines that, despite the adjudication of liability but in view of all the
circumstances of the case, the director or officer is fairly and reasonably entitled to indemnity for those expenses which
the court deems proper.
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| Directors’ fiduciary duties |
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A director of a Delaware corporation has a fiduciary duty to
the corporation and its shareholders. This duty has two components:
·
the
duty of care; and
·
the
duty of loyalty.
The duty of care requires that a director act in good faith, with
the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must
inform himself or herself of, and disclose to shareholders, all material information reasonably available regarding a significant
transaction.
The duty of loyalty requires that a director act in a manner
he or she reasonably believes to be in the best interests of the corporation. He or she must not use his or her corporate
position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest
of the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling
shareholder and not shared by the shareholders generally. In general, actions of a director are presumed to have been made
on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation.
However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties.
Should such evidence be presented concerning a transaction by
a director, a director must prove the procedural fairness of the transaction, and that the transaction was of fair value
to the corporation.
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The board of directors of a Swiss corporation manages the business
of the corporation, unless responsibility for such management has been duly delegated to the executive committee based on
organizational rules. However, there are several non-transferable duties of the board of directors:
·
the
overall management of the corporation and the issuing of all necessary directives;
·
determination
of the corporation’s organization;
·
the
organization of the accounting, financial control and financial planning systems as required for management of the
corporation;
·
the
appointment and dismissal of persons entrusted with managing and representing the corporation;
·
the
overall supervision of the persons entrusted with managing the corporation, in particular with regard to compliance with
the law, articles of association, operational regulations and directives;
·
the
compilation of the annual report, the compensation report, the report on non-financial matters and any other reports required by
law, the preparation for the general meeting of the shareholders and implementation of its resolutions; and
·
the
filing of an application for a debt restructuring moratorium and notification of the court in the event that the company is over-indebted.
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The members of the board of directors must perform their duties
with all due diligence and safeguard the interests of the corporation in good faith. They must afford the shareholders equal
treatment in equal circumstances.
The duty of care requires that a director act in good faith,
with the care that an ordinarily prudent director would exercise under like circumstances.
The members of the board of directors and the executive committee are
required to immediately and fully inform the board of directors about conflicts of interests concerning them. The board of directors is
furthermore required to take measures in order to protect the interests of the company.
The duty of loyalty requires that a director safeguard the interests
of the corporation and requires that directors act in the interest of the corporation and, if necessary, put aside their
own interests. If there is a risk of a conflict of interest, the board of directors must take appropriate measures to ensure
that the interests of the company are duly taken into account.
The burden of proof for a violation of these duties is with
the corporation or with the shareholder bringing a suit against the director.
The Swiss Federal Supreme Court has established a doctrine that restricts
its review of a business decision if the decision has been taken following proper preparation, on an informed basis and without conflicts
of interest.
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| Shareholder action by written consent |
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| A Delaware corporation may, in its certificate of incorporation, eliminate the right of shareholders to act by written consent. |
Shareholders of a Swiss corporation may exercise their voting rights in a general meeting of shareholders. Shareholders can only act by written consents if no shareholder requests a general meeting of shareholders. The articles of association must allow for (independent) proxies to be present at a general meeting of shareholders. The instruction of such (independent) proxies may occur in writing or electronically. |
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| Shareholder proposals |
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| A shareholder of a Delaware corporation has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of |
At any general meeting of shareholders, any shareholder
may put proposals to the meeting if the proposal is part of an agenda item. No resolution may be taken on proposals relating
to the agenda items that were not duly notified.
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| directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings. |
Unless the articles of association provide for a lower threshold or for
additional shareholders’ rights:
·
shareholders
together representing at least 5% of the share capital or voting rights may demand that a general meeting of shareholders
be called for specific agenda items and specific proposals; and
·
shareholders
together representing shares with a par value of at least 0.5% of the share capital or the voting rights may demand that
an agenda item including a specific proposal, or a proposal with respect to an existing agenda item, be put on the agenda for a
scheduled general meeting of shareholders, provided such request is made with appropriate lead time.
Any shareholder can propose candidates for election as directors
or make other proposals within the scope of an agenda item without prior written notice.
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In addition, any shareholder is entitled, at a general meeting of shareholders and without advance notice, to (i) request information from the board of directors on the affairs of the company (note, however, that the right to obtain such information is limited), (ii) request information from the auditors on the methods and results of their audit, (iii) request that the general meeting of shareholders resolve to convene an extraordinary general meeting, or (iv) request that the general meeting of shareholders resolve to appoint an examiner to carry out a special examination (“examen spécial”). |
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| Cumulative voting |
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| Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation provides for it. |
Cumulative voting is not permitted under Swiss corporate law. Pursuant to Swiss law, shareholders can vote for each proposed candidate, but they are not allowed to cumulate their votes for single candidates. An annual individual election of (i) all members of the board of directors, (ii) the chairperson of the board of directors, (iii) the members of the compensation committee, (iv) the election of the independent proxy for a term of office of one year (i.e., until the following annual general meeting of shareholders), as well as the vote on the aggregate amount of compensation of the members of the board of directors, of the executive committee and of the members of any |
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advisory board, is mandatory for listed companies. Re-election is permitted. |
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| Removal of directors |
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| A Delaware corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. |
A Swiss corporation may remove, with or without cause, any director at any time with a resolution passed by a majority of the shares represented at a general meeting of shareholders. The articles of association may require the approval by a supermajority of the shares represented at a meeting for the removal of a director. |
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| Transactions with interested shareholders |
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| The Delaware General Corporation Law generally prohibits a Delaware corporation from engaging in certain business combinations with an “interested shareholder” for three years following the date that such person becomes an interested shareholder. An interested shareholder generally is a person or group who or which owns or owned 15.0% or more of the corporation’s outstanding voting shares within the past three years. |
No such rule applies to a Swiss corporation. |
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| Dissolution; winding up |
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| Unless the board of directors of a Delaware corporation approves the proposal to dissolve, dissolution must be approved by shareholders holding 100.0% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board. |
A dissolution of a Swiss corporation requires the approval by two-thirds of the voting rights represented at the respective general meeting of shareholders as well as the majority of the par value of shares represented at such general meeting of shareholders. The articles of association may increase the voting thresholds required for such a resolution. |
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| Variation of rights of shares |
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| A Delaware corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides otherwise. |
The general meeting of shareholders of a Swiss corporation
may resolve that preference shares be issued or that existing shares be converted into preference shares with a resolution
passed by a majority of the shares represented at the general meeting of shareholders. Where a company has issued preference
shares, further preference shares conferring preferential rights over the existing preference shares may be issued only
with the consent of both a special meeting of the adversely affected holders of the existing preference shares and of a
general meeting of all shareholders, unless otherwise provided in the articles of association.
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Shares with preferential voting rights are not regarded as preference
shares for these purposes.
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| Amendment of governing documents |
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| A Delaware corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. |
The articles of association of a Swiss corporation may be amended
with a resolution passed by a majority of the shares represented at a general meeting of shareholders, unless otherwise
provided in the articles of association.
There are a number of resolutions, such as an amendment of the
stated purpose of the corporation, the introduction of a capital range and conditional capital and the introduction of shares
with preferential voting rights that require the approval by two-thirds of the votes and a majority of the par value of
the shares represented at such general meeting of shareholders. The articles of association may increase these voting
thresholds.
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| Inspection of books and records |
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| Shareholders of a Delaware corporation, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose, and to obtain copies of list(s) of shareholders and other books and records of the corporation and its subsidiaries, if any, to the extent the books and records of such subsidiaries are available to the corporation. |
Shareholders of a Swiss corporation holding in the aggregate at least
5% of the nominal share capital or voting rights have the right to inspect books and records, subject to the safeguarding of the
company’s business secrets and other interests warranting protection. A shareholder is only entitled to receive information
to the extent required to exercise his or her rights as a shareholder. The board of directors has to decide on an inspection
request within four months after receipt of such request. Denial of the request will need to be justified in writing. If the board of
directors denies an inspection request, shareholders may request the order of an inspection by the court within 30 days.
A shareholder’s right to inspect the share register is limited
to the right to inspect his or her own entry in the share register.
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| Payment of dividends |
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| The board of directors may approve a dividend without shareholder approval. Subject to any restrictions contained in its certificate of incorporation, the board may declare and pay dividends upon the shares of its capital stock either: |
Dividend (including interim dividend) payments are subject to the approval of the general meeting of shareholders. The board of directors may propose to shareholders that a dividend shall be paid but cannot itself authorize the distribution. |
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·
out
of its surplus, or
·
in
case there is no such surplus, out of its net profits for the fiscal year in which the
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Payments out of a corporation’s share capital (in other words, the aggregate par value of the corporation’s shares) in the form of dividends are not allowed and may be made only by way of a |
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dividend is declared and/or the preceding
fiscal year.
Shareholder approval is required to authorize capital stock
in excess of that provided in the charter. Directors may issue authorized shares without shareholder approval.
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share capital reduction. Dividends may be paid only from the profits of the previous or current business year or brought forward from previous business years or if the corporation has distributable reserves, each as evidenced by the corporation’s audited stand-alone statutory balance sheet prepared pursuant to Swiss law and after allocations to reserves required by Swiss law and the articles of association have been deducted. |
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| Creation and issuance of new shares |
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| All creation of shares require the board of directors to adopt a resolution or resolutions, pursuant to authority expressly vested in the board of directors by the provisions of the company’s certificate of incorporation. |
All creation of shares require a shareholders’ resolution. The creation of a capital range or conditional share capital requires at least two-thirds of the voting rights represented at the general meeting of shareholders and a majority of the par value of shares represented at such meeting. The board of directors may issue or cancel shares out of the capital range during a period of up to five years by a maximum amount of 50% of the current share capital. Shares are created and issued out of conditional share capital through the exercise of options or of conversion rights that the board of directors may grant to shareholders, creditors of bonds or similar debt instruments, employees, contractors or consultants, directors of the company or another group company or third parties. |
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 common shares. 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; |
| · | the provisions, if any, relating to any collateral provided for such debt
securities; |
| · | the terms and conditions, if any, for conversion into or exchange for common
shares; |
| · | 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. |
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities. The
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 being offered 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 set forth, to the extent
required, the following terms of the warrants in respect of which the prospectus supplement is 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. |
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, to the extent
required, the following terms of the subscription rights in respect of which the prospectus supplement is delivered:
| · | 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 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.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of debt or
equity securities issued by us or securities of third parties, a basket of such securities, an index or indices of such securities or
any combination of the above as specified in the applicable prospectus supplement, currencies or commodities.
Each purchase contract will entitle the holder thereof to purchase
or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price,
which may be based on a formula, all as set forth in the applicable prospectus supplement. A purchase by us or any of our subsidiaries
of common shares pursuant to any such purchase contract shall be subject to certain restrictions under Swiss law that generally apply
to a repurchase of shares. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash
value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying
currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement
will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration,
cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to make periodic payments to
the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and
those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations
in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to
satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts
on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under an indenture.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more purchase contracts, warrants, debt securities, common shares or any combination of such securities. The
applicable supplement will describe:
| · | the terms of the units and of the warrants, debt securities, preferred shares
and/or common shares 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. |
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 will be issued 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.
Registered Global Securities
We may issue 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 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 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
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 to give or take any action that a holder is entitled to give or take under the applicable
indenture, warrant agreement
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 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 ADC Therapeutics SA, the trustees, the warrant agents, the unit agents or any other agent of ADC Therapeutics
SA, 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 Exchange Act 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.
PLAN OF DISTRIBUTION
We may sell the securities in one or more of the following ways (or
in any combination) from time to time:
| · | 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 any other method permitted by applicable law and described in the
applicable prospectus supplement. |
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 |
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.
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 common shares 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 common shares. 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 common shares or other
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 common shares, which are listed on the NYSE. 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 common shares, may or may not be listed on a national securities
exchange.
LEGAL MATTERS
The validity of certain securities and certain other matters with respect
to Swiss law will be passed upon for us by Homburger AG, Zurich, Switzerland. The validity of certain securities and certain matters with
respect to U.S. federal and New York State law will be passed upon for us by Davis Polk & Wardwell LLP, New York, New York. Any underwriters,
dealers or agents will be advised by their own legal counsel concerning issues relating to any offering.
EXPERTS
The consolidated financial statements and management’s
assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on
Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the
year ended December 31, 2023 have been so incorporated in reliance on the report of PricewaterhouseCoopers SA, an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
ENFORCEMENT OF JUDGMENTS
We are organized under the laws of Switzerland and our registered office
and domicile is located in Epalinges, Switzerland. Moreover, a number of our directors and executive officers are not residents of the
United States, and all or a substantial portion of the assets of such persons are located outside the United States. As a result, it may
not be possible for investors to effect service of process within the United States upon us or upon such persons or to enforce against
them judgments obtained in U.S. courts, including judgments in actions predicated upon the civil liability provisions of the federal securities
laws of the United States. We have been advised by our Swiss counsel that there is doubt as to the enforceability in Switzerland of original
actions, or in actions for enforcement of judgments of U.S. courts, of civil liabilities to the extent solely predicated upon the federal
and state securities laws of the United States. Original actions against persons in Switzerland based solely upon the U.S. federal or
state securities laws are governed, among other things, by the principles set forth in the Swiss Federal Act on Private International
Law (the “PILA”). The PILA provides that the application of provisions of non-Swiss law by the courts in Switzerland shall
be precluded if the result would be incompatible with Swiss public policy. Also, mandatory provisions of Swiss law may be applicable regardless
of any other law that would otherwise apply.
Switzerland and the United States do not have a treaty providing for
reciprocal recognition of and enforcement of judgments in civil and commercial matters. The recognition and enforcement of a judgment
of the courts of the United States in Switzerland is governed by the principles set forth in the PILA. The PILA provides in principle
that a judgment rendered by a non-Swiss court may be enforced in Switzerland only if:
| · | the non-Swiss court had jurisdiction pursuant to the PILA; |
| · | the judgment of such non-Swiss court has become final and non-appealable;
|
| · | the judgment does not contravene Swiss public policy; |
| · | the court procedures and the service of documents leading to the judgment
were in accordance with the due process of law; and |
| · | no proceeding involving the same position and the same subject matter was
first brought in Switzerland, or adjudicated in Switzerland, or was earlier adjudicated in a third state and this decision is recognizable
in Switzerland. |
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act.
Accordingly, we are required to file reports and other information with the SEC, including annual, quarterly and current reports and proxy
and information statements. The SEC maintains an internet site at sec.gov that contains reports, proxy and information statements
and other information we have filed electronically with the SEC.
We have filed with the SEC a “shelf” registration statement
(including amendments and exhibits to the registration statement) on Form S-3 under the Securities Act. This prospectus, which is part
of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and schedules
to the registration statement. We have omitted parts of the registration statement in accordance with the rules and regulations of the
SEC. For more detail about us and the securities that may be offered by this prospectus, you may examine the registration statement on
Form S-3 and the exhibits filed with it at the website provided in the previous paragraph.
We maintain a corporate website at adctherapeutics.com. The
reference to our website is an inactive textual reference only, and information contained therein or connected thereto is not incorporated
into this prospectus or the registration statement of which it forms a part.
INFORMATION INCORPORATED BY REFERENCE
The rules of the SEC allow us to incorporate by reference information
in this prospectus, which means that we disclose important information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference in this prospectus is considered to be a part of this prospectus. Any statement made
in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently
filed document that is also incorporated or deemed to be incorporated by reference in 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.
This prospectus incorporates by reference the documents listed below:
| · | our Current Reports on Form 8-K filed with the SEC on January
4, 2024 (containing Item 8.01 information), January
19, 2024, January
24, 2024, February
29, 2024, May
8, 2024 and June
14, 2024; and |
All subsequent documents that we file pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (excluding, in each case, any information or documents deemed to be furnished and not filed),
(i) on or after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to the effectiveness
of such registration statement and (ii) on or after the date of this prospectus and prior to the termination or expiration of the registration
statement of which this prospectus forms a part, shall be incorporated by reference.
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 sec.gov. Our filings with the SEC are also available
free of charge on our website (adctherapeutics.com) as soon as reasonably practicable after they are filed with, or furnished to,
the SEC. The reference to our website is an inactive textual reference only, and information contained therein or connected thereto
is not incorporated into this prospectus or the registration statement of which it forms a part. We will provide to each person,
including any beneficial owner, to whom this prospectus is delivered, a copy of any or all the reports or documents incorporated
by reference in this prospectus at no cost, upon written or oral request to us at the following address:
Investor Relations
ADC Therapeutics SA
c/o ADC Therapeutics America, Inc.
430 Mountain Avenue, 4th Floor
Murray Hill, NJ 07974
(908) 731-5556
ADC THERAPEUTICS SA
$300,000,000
Common Shares
Debt Securities
Warrants
Subscription Rights
Purchase Contracts
Units
PROSPECTUS
,
2024
The information 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
6, 2024
PROSPECTUS SUPPLEMENT
ADC THERAPEUTICS SA
Up to $100,000,000
Common Shares
We have entered into an Open Market Sale AgreementSM with
Jefferies LLC (“Jefferies” or the “sales agent”), dated August 6, 2024, relating to the sale of our common shares,
par value CHF 0.08 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 common
shares having an aggregate offering price of up to $100,000,000 from time to time through the sales agent.
Sales of our common shares, 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 up to 3.0% of the gross sales price of any common shares sold under the sales agreement. In connection with the sale of common shares
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-19 for additional information regarding the compensation to be paid to the sales agent.
Our common shares are listed on the New York Stock Exchange (“NYSE”)
under the symbol “ADCT.” On August 2, 2024, the last reported sale price of our common shares on the NYSE was $2.88 per share.
Investing in our securities involves a high degree of risk. See
the “Risk Factors” section beginning on page S-7 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 ,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS SUPPLEMENT
This document consists of two parts. The first part is this prospectus
supplement, which describes the specific terms of this offering. The second 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 may be offered by us, some of which may not apply to this offering. This prospectus supplement
and the information incorporated by reference in this prospectus supplement supplements, updates and amends 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”
and “Information Incorporated by Reference.” These documents contain important information that you should consider when making
your investment decision. We have filed or incorporated by reference exhibits to the registration statement of which this prospectus supplement
forms a part. You should read the exhibits carefully for provisions that may be important to you.
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 supplement, the accompanying prospectus or the documents incorporated by reference in this
prospectus supplement 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 sales agent have authorized anyone to provide you
with information that is different from that contained or incorporated by reference in this prospectus supplement or 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.
For investors outside the United States: Neither we nor the sales agent
have taken any action that would permit the offering or possession or distribution of this prospectus supplement in any jurisdiction where
action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this
prospectus supplement must inform themselves about, and observe any restrictions relating to, the offering of the securities described
herein and the distribution of this prospectus supplement outside the United States.
Unless otherwise indicated or the context otherwise requires, all references
in this prospectus to “ADC Therapeutics,” “ADCT,” the “Company,” “we,” “our,”
“ours,” “us” or similar terms refer to ADC Therapeutics SA and its consolidated subsidiaries.
Trademarks
We own various trademark registrations and applications, and unregistered
trademarks, including ADC Therapeutics, ADCT, ZYNLONTA and our corporate logo. All other trade names, trademarks and service
marks of other companies appearing in this prospectus supplement are
the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus supplement may be referred
to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective
owners will not assert, to the fullest extent under applicable law, their rights thereto. We do not intend to use or display other companies’
trademarks and trade names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights the information contained elsewhere in this
prospectus supplement or incorporated by reference herein. Because this is only a summary, it does not contain all of the information
that may be important to you. For a more complete understanding of this offering, we encourage you to read this entire prospectus supplement
and the documents incorporated by reference herein as well as the accompanying prospectus. You should read the following summary together
with the more detailed information and consolidated financial statements and the notes to those statements incorporated by reference
into this prospectus supplement. Some of the statements in this prospectus supplement are forward-looking statements. See “Cautionary
Statement Regarding Forward-Looking Statements.”
Our Company
ADC Therapeutics is a leading, commercial-stage global pioneer in the
field of antibody drug conjugates (“ADCs”) with a validated and differentiated technology platform with multiple payloads
and targets, a robust next-generation research and development toolbox, and specialized end-to-end capabilities. We are advancing our
proprietary ADC technology to transform the treatment paradigm for patients with hematologic malignancies and solid tumors.
Company and Corporate Information
We are a Swiss stock corporation (société anonyme)
organized under the laws of Switzerland. We were incorporated as a Swiss limited liability company (société à
responsabilité limitée) on June 6, 2011 and converted into a Swiss stock corporation (société
anonyme) under the laws of Switzerland on October 13, 2015. We have three subsidiaries: ADC Therapeutics (UK) Limited, ADC
Therapeutics America, Inc. and ADC Therapeutics (NL) BV. Our principal executive office is located at Biopôle, Route de la
Corniche 3B, 1066 Epalinges, Switzerland and our telephone number is +41 21 653 02 00. Our website is adctherapeutics.com.
The reference to our website is an inactive textual reference only, and information contained therein or connected thereto is not incorporated
into this prospectus supplement or the registration statement of which it forms a part.
The Offering
| Common shares offered by us |
|
Common shares having an aggregate offering price of up to $100,000,000. |
| |
|
|
| Common shares outstanding as of June 30, 2024 |
|
96,469,641 shares. |
| |
|
|
| 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-19 of this prospectus supplement. |
| |
|
|
| Use of proceeds |
|
We intend to use the net proceeds from this offering primarily to fund research and development and commercialization activities and for working capital and other general corporate purposes. See “Use of Proceeds.” |
| |
|
|
| Risk factors |
|
Investing in our securities involves a high degree of risk. See “Risk Factors” in this prospectus supplement and in our SEC filings that are incorporated by reference in this prospectus supplement and the accompanying prospectus. |
| Listing |
|
Our common shares are listed on the NYSE under the symbol “ADCT.” |
In this prospectus supplement, unless otherwise indicated, the number
of common shares outstanding as of June 30, 2024 excludes:
| · | 9,958,023 aggregate common shares issuable upon the exercise of options outstanding
under our 2019 Equity Incentive Plan, Conditional Share Capital Plan and Inducement Plan (collectively, our “share-based compensation
plans”) as of June 30, 2024, at a weighted-average exercise price of $7.77 per share; |
| · | 5,789,876 common shares issuable upon vesting of restricted share units outstanding
under our share-based compensation plans as of June 30, 2024; |
| · | 8,328,444 additional common shares reserved for future issuance under our
share-based compensation plans as of June 30, 2024; |
| · | 2,984,217 common shares we hold in treasury as of June 30, 2024; and |
| · | 8,163,265 common shares issuable upon the exercise of warrants with an exercise
price of CHF 0.08 per share, 527,295 common shares issuable upon the exercise of warrants with an exercise price of $8.30 per share, 2,631,578
common shares issuable upon the exercise of warrants with an exercise price of $24.70 per share and 1,781,262 common shares issuable upon
the exercise of warrants with an exercise price of $28.07 per share, in each case, outstanding as of June 30, 2024. |
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus supplement and the documents incorporated by reference
in this prospectus supplement contain statements that constitute 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”). All statements other
than statements of historical facts, including statements regarding our future catalysts, results of operations and financial
position, business and commercial strategy, market opportunities, products and product candidates, research pipeline, ongoing and
planned preclinical studies and clinical trials, regulatory submissions and approvals, research and development costs, projected
revenues and expenses and the timing of revenues and expenses, timing and likelihood of success, as well as plans and objectives
of management for future operations are forward-looking statements. Many of the forward-looking statements contained in
this prospectus supplement can be identified by the use of forward-looking words such as “anticipate,” “believe,”
“could,” “expect,” “should,” “plan,” “intend,” “estimate,” “will”
and “potential,” among others.
Forward-looking statements are based on our management’s beliefs
and assumptions and on information available to our management at the time such statements are made. Such statements are subject
to known and unknown risks and uncertainties, and actual results may differ materially from those expressed or implied in the forward-looking
statements due to various factors, including, but not limited to: the substantial net losses that we have incurred since our inception,
our expectation to continue to incur losses for the foreseeable future and our need to raise additional capital to fund our operations
and execute our business plan; our indebtedness under the loan agreement and guaranty (the “Loan Agreement”) with certain
affiliates and/or funds managed by each of Oaktree Capital Management, L.P. and Owl Rock Capital Advisors LLC, as lenders, and Blue Owl
Opportunistic Master Fund I, L.P., as administrative agent, and the associated restrictive covenants thereunder; the purchase and sale
agreement with certain entities managed by HealthCare Royalty Management, LLC and its negative effect on the amount of cash that we are
able to generate from sales of, and licensing agreements involving, ZYNLONTA and on our attractiveness as an acquisition target; our ability
to complete clinical trials on expected timelines, if at all; the timing, outcome and results of ongoing or planned clinical trials, whether
the Company sponsored trials or through investigator initiated trials, and the sufficiency of such results; undesirable side effects or
adverse events of our products and product candidates; our and our partners’ ability to obtain and maintain regulatory approval
for our product and product candidates; our and our partners’ ability to successfully commercialize our products; the availability
and scope of coverage and reimbursement for our products; the complexity and difficulty of manufacturing our products and product candidates;
the substantial competition in our industry, including new technologies and therapies; the timing and results of any early research projects
and future clinical outcomes; our reliance on third parties for preclinical studies and clinical trials and for the manufacture, production,
storage and distribution of our products and product candidates and certain commercialization activities for our products; our ability
to obtain, maintain and protect our intellectual property rights and our ability to operate our business without infringing on the intellectual
property rights of others; our estimates regarding future revenue, expenses and needs for additional financing; the size and growth potential
of the markets for our products and product candidates; potential product liability lawsuits and product recalls; and those identified
in the “Risk Factors” section of this prospectus supplement and the documents incorporated by reference in this prospectus
supplement.
Because forward-looking statements are inherently subject to risks
and uncertainties, some of which cannot be predicted or quantified and some of which are beyond our control, you should
not rely on these forward-looking statements as predictions of future events. Moreover, we operate in an evolving environment.
New risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors
and uncertainties. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements,
whether as a result of any new information, future events, changed circumstances or otherwise. You should read this prospectus
supplement, the documents incorporated by reference in this prospectus supplement and the documents that we have filed as exhibits
to the registration statement of which the accompanying prospectus is a part completely and with the understanding that our actual
future results may be materially different from what we expect.
In addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the
date of such statements, and while we believe such information forms a reasonable basis for such statements, such information may
be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into,
or review of, all potentially available relevant information. These statements are inherently uncertain and investors are
cautioned not to unduly rely upon these statements.
RISK FACTORS
Investing in our securities involves risk. Before making a decision
to invest in our securities, you should carefully consider the risks described below and 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 incorporated by reference in this prospectus supplement, 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. These risks
and uncertainties are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently believe
to be immaterial may also adversely affect our business. If any of the events or developments were to occur, our business, results of
operations, financial condition and prospects could suffer materially.
Risks Related to This Offering
You may experience immediate and substantial dilution in
the book value of your investment.
If you purchase our common shares 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
common share. See “Dilution.”
The issuance of common shares in connection with the exercise
of securities convertible into or exercisable for our common shares would dilute your ownership interest and could materially affect the
market price of our common shares and our earnings per share.
To the extent that any outstanding warrants are exercised, any outstanding
options under our share-based compensation plans are exercised, any outstanding RSUs under our share-based compensation plans vest, or
new options or RSUs are issued under our share-based compensation plans, substantial amounts of our common shares may be issued in the
future. We cannot quantify the number of common shares that will be issued in connection with such exercise and vesting. However, the
issuance of common shares pursuant to such exercise and vesting would dilute your ownership interest and could materially affect the market
price of our common shares and our earnings per share.
The actual number of common shares 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 common shares that are sold by the sales agent after we deliver a placement notice will fluctuate based on the
market price of our common shares 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 common shares during the sales period, it is not possible to predict the number of common
shares that will be ultimately sold or the resulting gross proceeds.
The common shares offered in this offering will be sold
in “at the market offerings.” Investors who purchase our common shares in this offering at different times will likely pay
different prices.
Investors who purchase our common shares 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 common shares 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 common shares 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 common shares. 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.
USE OF PROCEEDS
We may offer and sell our common shares 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, primarily
to fund research and development and commercialization activities and for working capital and other general corporate purposes.
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.
DILUTION
Net tangible book value per common share is determined by dividing
our total assets, less intangible assets, less total liabilities by the number of our common shares outstanding.
Our historical net tangible book value as of June 30, 2024 was -$141.4
million, or -$1.47 per common share. After giving effect to the assumed sale by us of $100,000,000 of common shares at an assumed public
offering price of $2.88 per share, which was the last reported sale price of our common shares on the NYSE on August 2, 2024, and after
deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2024 would
have been -$46.5 million, or - $0.35 per common share, representing an immediate increase of $1.12 per common share and immediate
dilution of $3.23 per common share.
To the extent that any outstanding warrants are exercised, any outstanding
options under our share-based compensation plans are exercised, any outstanding RSUs under our share-based compensation plans vest, new
options or RSUs are issued under our share-based compensation plans or we issue additional common shares in the future, there will be
further dilution to investors participating in this offering.
TAXATION
The following discussion is based on the tax laws, regulations and
regulatory practices of Switzerland and the United States as in effect on the date hereof, which are subject to change (or subject to
changes in interpretation), possibly with retroactive effect.
Current and prospective shareholders are advised to consult their own
tax advisers in light of their particular circumstances as to the Swiss or U.S. tax laws, regulations and regulatory practices that could
be relevant for them in connection with owning and selling or otherwise disposing of our common shares and receiving dividends and similar
cash or in-kind distributions on our common shares (including dividends on liquidation proceeds and share dividends) or distributions
on our common shares based upon a capital reduction or reserves paid out of capital contributions and the consequences thereof under the
tax laws, regulations and regulatory practices of Switzerland or the United States.
Swiss Tax Considerations
Withholding Tax
Under present Swiss tax law, dividends due and similar cash or in-kind
distributions made by the Company to a shareholder of common shares (including liquidation proceeds and bonus shares) are subject to Swiss
federal withholding tax (“Withholding Tax”), currently at a rate of 35% (applicable to the gross amount of taxable distribution).
However, the repayment of the par value of the common shares and any repayment of qualifying additional paid-in capital (capital contribution
reserves), within the limitations accepted by the legislation in force when such dividend becomes due and the respective administrative
practice, are not subject to the Withholding Tax. The Company is obliged to deduct any applicable Withholding Tax from the gross amount
of any taxable distribution and to pay the tax to the Swiss Federal Tax Administration within 30 days of the due date of such distribution.
Swiss resident individuals who hold their common shares as private
assets (“Resident Private Shareholders”) are in principle eligible for a full refund or credit against income tax of the Withholding
Tax if they duly report the underlying income in their income tax return. In addition, (i) corporate and individual shareholders
who are resident in Switzerland for tax purposes, (ii) corporate and individual shareholders who are not resident in Switzerland,
and who, in each case, hold their common shares as part of a trade or business carried on in Switzerland through a permanent establishment
with fixed place of business situated in Switzerland for tax purposes and (iii) Swiss resident private individuals who, for income
tax purposes, are classified as “professional securities dealers” for reasons of, inter alia, frequent dealing, or leveraged
investments, in shares and other securities (collectively, “Domestic Commercial Shareholders”) are in principle eligible for
a full refund or credit against income tax of the Withholding Tax if they duly report the underlying income in their statements of operations
or income tax return, as the case may be.
Shareholders who are not resident in Switzerland for tax purposes,
and who, in each case and during the respective taxation year, do not hold their common shares as part of a trade or business carried
on through a permanent establishment with fixed place of business situated in Switzerland for tax purposes, and who are not subject to
corporate or individual income taxation in Switzerland for any other reason (collectively, “Non-Resident Shareholders”) may
be entitled to a total or partial refund of the Withholding Tax if the country in which such recipient resides for tax purposes maintains
a bilateral treaty for the avoidance of double taxation with Switzerland and further conditions of such treaty are met. Non-Resident Shareholders
should be aware that the procedures for claiming treaty benefits (and the time required for obtaining a refund) may differ from country
to country. Non-Resident Shareholders should consult their own legal, financial or tax advisors regarding receipt, ownership, purchases,
sale or other dispositions of common shares and the procedures for claiming a refund of the Withholding Tax.
Swiss Issuance Stamp Duty
The Company will be subject to the Swiss issuance stamp duty (droit
de timbre d’émission) on the issuance of common shares of 1% of the offering price, net of certain deductions.
Swiss Securities Transfer Stamp Duty
Any transactions in common shares in the secondary markets are subject
to Swiss securities transfer stamp duty at an aggregate rate of 0.15% of the consideration paid for such common shares; however, only
if a bank or other securities dealer in Switzerland, as defined in the Swiss Federal Stamp Tax Act (loi fédérale sur
les droits de timbre), is a party or an intermediary to the transaction and no exemption applies.
Swiss Federal, Cantonal and Communal Individual Income
Tax and Corporate Income Tax
Non-Resident Shareholders
Non-Resident Shareholders are not subject to any Swiss federal, cantonal
or communal income tax on dividend payments and similar distributions because of the mere holding of common shares. The same applies for
capital gains on the sale of common shares subject to certain exceptions. For Withholding Tax consequences, see “—Swiss Tax
Considerations—Withholding Tax.”
Resident Private Shareholders and Domestic Commercial Shareholders
Resident Private Shareholders who receive dividends and similar cash
or in-kind distributions (including liquidation proceeds as well as bonus shares or taxable repurchases of common shares as described
above), which are not repayments of the par value of common shares or, within the limitations accepted by the legislation in force and
the respective administrative practice, qualifying additional paid-in capital (capital contribution reserves), are required to report
such receipts in their individual income tax returns and are subject to Swiss federal, cantonal and communal income tax on any net taxable
income for the relevant tax period. A gain or a loss by Resident Private Shareholders realized upon the sale or other disposition of common
shares to a third party will generally be a tax-free private capital gain or a non-tax-deductible capital loss, as the case may be. Under
exceptional circumstances, the capital gain may be re-characterized into a taxable dividend, in particular upon taxable repurchase of
common shares as described above. When a capital gain is re-characterized as a dividend, the relevant income for tax purposes corresponds
to the difference between the repurchase price and the sum of the par value of common shares and, within the limitations accepted by the
legislation in force and the respective administrative practice, qualifying additional paid-in capital (capital contribution reserves).
Domestic Commercial Shareholders who receive dividends and similar
cash or in-kind distributions (including liquidation proceeds as well as bonus shares) are required to recognize such payments in their
statements of operations for the relevant tax period and are subject to Swiss federal, cantonal and communal individual or corporate income
tax, as the case may be, on any net taxable earnings accumulated (including the dividends) for such period. Domestic Commercial Shareholders
who are corporate taxpayers may qualify for participation relief on dividend distributions (réduction pour participations),
if common shares held have an aggregate market value of at least CHF 1 million. For cantonal and communal income tax purposes, the
regulations on participation relief are broadly similar, depending on the canton of residency.
Domestic Commercial Shareholders are required to recognize a gain or
loss realized upon the disposal of common shares in their statement of operations for the respective taxation period and are subject to
Swiss federal, cantonal and communal individual or corporate income tax, as the case may be, on any net taxable earnings (including the
gain or loss realized on the sale or other disposition of common shares) for such taxation period.
Swiss Wealth Tax and Capital Tax
Non-Resident Shareholders
Non-Resident Shareholders holding common shares are not subject to
cantonal and communal wealth or annual capital tax because of the mere holding of common shares.
Resident Private Shareholders
Resident Private Shareholders are required to report their common shares
as part of their private wealth and are subject to cantonal and communal wealth tax.
Domestic Commercial Shareholders
Domestic Commercial Shareholders are required to report their common
shares as part of their business wealth or taxable capital, as defined, and are subject to cantonal and communal wealth or annual capital
tax.
Automatic Exchange of Information in Tax Matters
On November 19, 2014, Switzerland signed the Multilateral Competent
Authority Agreement. The Multilateral Competent Authority Agreement is based on Article 6 of the OECD/Council of Europe administrative
assistance convention and is intended to ensure the uniform implementation of Automatic Exchange of Information (the “AEOI”).
The Federal Act on the International Automatic Exchange of Information in Tax Matters (the “AEOI Act”) entered into force
on January 1, 2017. The AEOI Act is the legal basis for the implementation of the AEOI standard in Switzerland.
The AEOI is being introduced in Switzerland through bilateral agreements
or multilateral agreements. The agreements have been, and will be, concluded on the basis of guaranteed reciprocity, compliance with the
principle of speciality (i.e., the information exchanged may only be used to assess and levy taxes (and for criminal tax proceedings))
and adequate data protection.
Based on such multilateral or bilateral agreements and the implementation
of Swiss law, Switzerland collects and exchanges data in respect of financial assets, including common shares, held in, and income derived
thereon and credited to, accounts or deposits with a paying agent in Switzerland for the benefit of individuals resident in a European
Union member state or in a treaty state.
Swiss Facilitation of the Implementation of the U.S. Foreign
Account Tax Compliance Act
Switzerland has concluded an intergovernmental agreement with the United
States to facilitate the implementation of U.S. Foreign Account Tax Compliance Act. The agreement ensures that the accounts held by U.S.
persons with Swiss financial institutions are disclosed to the U.S. tax authorities either with the consent of the account holder or by
means of group requests within the scope of administrative assistance. Information will not be transferred automatically in the absence
of consent, and instead will be exchanged only within the scope of administrative assistance on the basis of the double taxation agreement
between the United States and Switzerland. On June 27, 2024, Switzerland and the United States signed a new FATCA agreement. The new agreement
provides for a different model for the exchange of financial account data. If the agreement is implemented, the current direct-notification-based
regime shall be replaced by a regime where the relevant information is sent to the Swiss Federal Tax Administration, which in turn provides
the information to the U.S. tax authorities. The exchange of information shall also be mutual and automatic. Implementation of the new
FATCA agreement requires national law to be amended. According to the current schedule, Switzerland's change of model should come into
force on January 1, 2027.
Material U.S. Federal Income Tax Consequences for U.S. Holders
The following is a description of the material U.S. federal income
tax consequences to the U.S. Holders, as defined below, of owning and disposing of our common shares. It does not describe all tax considerations
that may be relevant to a particular person’s decision to acquire common shares.
This discussion applies only to a U.S. Holder that holds common shares
as capital assets for U.S. federal income tax purposes (generally, property held for investment). In addition, it does not describe any
tax consequences other than U.S. federal income tax consequences, including state and local tax consequences and estate tax consequences,
and does not describe all of the U.S. federal income tax
consequences that may be relevant in light of the U.S. Holder’s
particular circumstances, including alternative minimum tax consequences, the potential application of the provisions of the Internal
Revenue Code of 1986, as amended (the “Code”) known as the Medicare contribution tax and tax consequences applicable to U.S.
Holders subject to special rules, such as:
| • | certain banks, insurance companies and other financial institutions; |
| • | brokers, dealers or traders in securities who use a mark-to-market method of tax accounting; |
| • | persons holding common shares as part of a straddle, wash sale, conversion transaction or other integrated transaction or persons
entering into a constructive sale with respect to the common shares; |
| • | persons whose functional currency for U.S. federal income tax purposes is not the U.S. dollar; |
| • | entities or arrangements classified as partnerships or S corporations for U.S. federal income tax purposes; |
| • | tax-exempt entities, including an “individual retirement account” or “Roth IRAs” and governmental entities; |
| • | real estate investment trusts or regulated investment companies; |
| • | former U.S. citizens or long-term residents of the United States; |
| • | persons subject to Section 451(b) of the Code; |
| • | persons that own or are deemed to own 10% or more of the voting power or value of our common shares; or |
| • | persons holding common shares in connection with a trade or business conducted outside of the United States or in connection with
a permanent establishment or other fixed place of business outside of the United States. |
If an entity or arrangement that is classified as a partnership for
U.S. federal income tax purposes holds common shares, the U.S. federal income tax treatment of a partner will generally depend on the
status of the partner and the activities of the partnership. Partnerships holding common shares and partners in such partnerships should
consult their tax advisers as to the particular U.S. federal income tax consequences of owning and disposing of the common shares.
This discussion is based on the Code, administrative pronouncements,
judicial decisions, final, temporary and proposed Treasury regulations, and the income tax treaty between Switzerland and the United States
(the “Treaty”), all as of the date hereof, any of which is subject to change or differing interpretations, possibly with retroactive
effect.
A “U.S. Holder” is a beneficial owner of our common shares
who, for U.S. federal income tax purposes, is eligible for the benefits of the Treaty and who is:
| • | a citizen or individual resident of the United States; |
| • | a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state
therein or the District of Columbia; or |
| • | an estate or trust, the income of which is subject to U.S. federal income taxation regardless of its source. |
U.S. Holders should consult their tax advisers concerning the U.S.
federal, state, local and non-U.S. tax consequences of owning and disposing of common shares in their particular circumstances.
Passive Foreign Investment Company Rules
Under the Code, we will be a PFIC for any taxable year in which, after
the application of certain look-through rules with respect to subsidiaries, either (i) 75% or more of our gross income consists of “passive
income” or (ii) 50% or more of the average quarterly value of our assets consists of assets that produce, or are held for the production
of, “passive income.” For purposes of the above calculations, we will be treated as if we hold our proportionate share of
the assets of, and receive directly our proportionate share of the income of, any other corporation in which we directly or indirectly
own at least 25%, by value, of the shares of such corporation. Passive income generally includes interest, dividends, certain non-active
rents and royalties, and capital gains.
Cash is generally characterized as a passive asset for these purposes.
Goodwill is generally characterized as a non-passive or passive asset based on the nature of the income produced in the activity to which
the goodwill is attributable. The extent to which our goodwill should be characterized as a non-passive asset is not entirely clear. We
hold a substantial amount of cash, and while this continues to be the case our PFIC status for any taxable year depends largely on the
value of our goodwill and the characterization of our goodwill as passive or non-passive. The value of our goodwill for any taxable year
may be determined in large part by reference to the average of our market capitalization for that year. Because our market capitalization
declined substantially during 2023, we believe we were a PFIC for our 2023 taxable year. There is also a risk that we will be a PFIC for
2024 and possibly future taxable years. We have not obtained any valuation of our assets (including goodwill). U.S. Holders of our common
shares should consult their tax advisers regarding the value and characterization of our assets for purposes of the PFIC rules, as they
are subject to some uncertainties. In addition, our PFIC status is a factual annual determination that can be made only after the end
of the relevant taxable year and will depend on the composition of our income and assets and the value of our assets from time to time.
Accordingly, our PFIC status for 2024 and any future taxable year is uncertain.
If we are a PFIC for any year during which a U.S. Holder holds common
shares, we will continue to be treated as a PFIC with respect to that U.S. Holder for all succeeding years during which the U.S. Holder
holds common shares, even if we cease to meet the threshold requirements for PFIC status, unless the U.S. Holder elects to recognize gain,
if any, as if it sold its common shares as of the last day of the last tax year in which we are a PFIC (such election, a “Purging
Election”). In addition, the Company may, directly or indirectly, have held or hold equity interests in other PFICs (collectively,
“Lower-tier PFICs”). Under attribution rules, if the Company is a PFIC, U.S. Holders will be deemed to own their proportionate
shares of the stock of Lower-tier PFICs and will be subject to U.S. federal income tax according to the rules described in the following
paragraphs on (i) certain distributions by a Lower-tier PFIC and (ii) a disposition of shares of a Lower-tier PFIC, in each case as if
the U.S. Holder held such shares directly, even though holders have not received the proceeds of those distributions or dispositions directly.
U.S. Holders should consult their tax advisers about the consequences to them if we own one or more Lower-tier PFICs.
If we are a PFIC for any taxable year during which a U.S. Holder holds
common shares, such holder will generally be subject to adverse tax consequences. Unless a U.S. Holder makes a timely “mark-to-market”
election or “qualified electing fund” (“QEF”) election (each discussed below), gain recognized by the U.S. Holder
on sale or other disposition (including certain pledges) of common shares (including any gain recognized as a consequence of a Purging
Election) will be allocated ratably over the U.S. Holder’s holding period for the common shares. The amounts allocated to the taxable
year of the sale or other disposition and to any year before we became a PFIC will be taxed as ordinary income. The amount allocated to
each other taxable year will be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that
taxable year, and an interest charge will be imposed on the resulting tax liability. Further, to the extent that any distribution received
by a U.S. Holder on its common shares exceeds 125% of the average of the annual distributions on the common shares received during the
preceding three years or the U.S. Holder’s holding period, whichever is shorter, that distribution will be subject to taxation in
the same manner as gain, described immediately above.
If we are a PFIC and if our common shares are “regularly traded”
on a “qualified exchange,” a U.S. Holder will be eligible to make a mark-to-market election with respect to our common shares
that will result in tax treatment different from the general tax treatment for PFICs described above. Our common shares will be treated
as “regularly traded” if more than a de minimis amount of our common shares are traded on a qualified exchange on at least
15 days during each calendar quarter. The NYSE, on which our common shares are listed, is a qualified exchange for this purpose. Once
made, the election cannot be revoked without the consent of the IRS unless the shares cease to be traded on an established market.
If a U.S. Holder makes the mark-to-market election with respect to
our common shares, such holder will generally recognize as ordinary income any excess of the fair market value of such holder’s
common shares at the end of each taxable year over their adjusted tax basis, and will recognize an ordinary loss in respect of any excess
of the adjusted tax basis of the common shares over their fair market value at the end of the taxable year (but only to the extent of
the net amount of income previously included as a result of the mark-to-market election). If a U.S. Holder makes the election, such holder’s
tax basis in their common shares will be adjusted to reflect these income or loss amounts. Any gain recognized on the sale or other disposition
of common shares in a year when we are a PFIC will be treated as ordinary income and any loss will be treated as an ordinary loss (but
only to the extent of the net amount of income previously included as a result of the mark-to-market election). This election will not
apply to any of our non-U.S. subsidiaries. Accordingly, a U.S. Holder may continue to be subject to tax under the PFIC excess distribution
regime with respect to any Lower-tier PFICs notwithstanding a mark-to-market election for the common shares.
If a company that is a PFIC provides certain information to U.S. Holders,
a U.S. Holder can then avoid certain adverse tax consequences described above by making a QEF election to be taxed currently on its proportionate
share of the PFIC’s ordinary income and net capital gains.
The QEF election is made on a shareholder-by-shareholder basis and,
once made, can be revoked only with the consent of the IRS. A U.S. Holder generally makes a QEF election by attaching a completed IRS
Form 8621, including the information provided in a PFIC Annual Information Statement, to a timely filed U.S. federal income tax return
for the taxable year to which the election relates. U.S. Holders should consult their tax advisers regarding the availability and tax
consequences of a retroactive QEF election under their particular circumstances. In order to comply with the requirements to make a QEF
election, a U.S. Holder must receive a PFIC Annual Information Statement from us. Because we believe we were a PFIC for the 2023 taxable
year, we have provided information necessary for our U.S. investors to make a QEF election with respect to us for the 2023 taxable year
on our website.
In addition, if we are a PFIC (or, with respect to a particular U.S.
Holder, are treated as a PFIC) for a taxable year in which we pay a dividend or for the prior taxable year, the preferential dividend
rates discussed below with respect to dividends paid to certain non-corporate U.S. Holders will not apply.
The rules dealing with PFICs and with the mark-to-market and QEF elections
are complex and are affected by various factors in addition to those described above. Accordingly, U.S. Holders should consult their tax
advisers concerning the application of the PFIC rules to our common shares under their particular circumstances.
Information Returns
If we are a PFIC for any taxable year during which a U.S. Holder holds
common shares, the U.S. Holder will generally be required to file an annual report on IRS Form 8621, containing such information as the
U.S. Treasury may require, with their annual U.S. federal income tax returns. A U.S. Holder’s failure to file the annual report
will cause the statute of limitations for such U.S. Holder’s U.S. federal income tax return to remain open with respect to the items
required to be included in such report until three years after the U.S. Holder files the annual report and, unless such failure is due
to reasonable cause and not willful neglect, the statute of limitations for the U.S. Holder’s entire U.S. federal income tax return
will remain open during such period.
Prospective U.S. holders should consult their tax advisers regarding
the potential PFIC rules to an investment in common shares.
Taxation of Distributions
The following is subject to the discussion regarding the PFIC rules
described above.
Distributions paid on common shares, other than certain pro rata distributions
of common shares, will generally be treated as dividends to the extent paid out of our current or accumulated earnings and profits (as
determined under U.S. federal income tax principles). Dividends paid to certain non-corporate U.S. Holders may be eligible for taxation
as “qualified dividend income” and therefore, subject to applicable limitations, may be taxable at rates not in excess of
the long-term capital gain rate applicable to such U.S. Holder. However, the qualified dividend income treatment will not apply if we
are treated as a PFIC with respect to the U.S. Holder or if we are a PFIC for the taxable year in which the dividend is paid or the preceding
taxable year.
The amount of a dividend will include any amounts withheld by us in
respect of Swiss income taxes. The amount of the dividend will be treated as foreign-source dividend income to U.S. Holders and will not
be eligible for the dividends-received deduction generally available to U.S. corporations under the Code. Dividends will be included in
a U.S. Holder’s income on the date of the U.S. Holder’s receipt of the dividend. The amount of any dividend income paid in
Swiss francs will be the U.S. dollar amount calculated by reference to the exchange rate in effect on the date of actual or constructive
receipt, regardless of whether the payment is in fact converted into U.S. dollars at that time. If the dividend is converted into U.S.
dollars on the date of receipt, a U.S. Holder should not be required to recognize foreign currency gain or loss in respect of the dividend
income. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into U.S. dollars after the date of receipt.
Subject to generally applicable limitations and conditions, some of
which vary depending upon the U.S. Holder’s particular circumstances, Swiss income taxes withheld from dividends on common shares
(at a rate not exceeding the rate provided by the Treaty, in the case of a U.S. Holder eligible for a reduced rate under the Treaty) will
be creditable against the U.S. Holder’s U.S. federal income tax liability. These generally applicable limitations and conditions
include new requirements adopted by the IRS in regulations promulgated in December 2021 (the “Foreign Tax Credit Regulations”)
and any Swiss tax will need to satisfy these requirements in order to be eligible to be a creditable tax to a U.S. Holder. However, the
IRS released guidance in the form of a notice which provides temporary relief from the requirements of these new regulations for taxable
years ending before the date that a notice or other guidance withdrawing or modifying the temporary relief is issued (or any later date
specified in such notice or other guidance). In the case of a U.S. Holder that either (i) is eligible for, and properly elects, the benefits
of the Treaty, or (ii) consistently elects to apply a modified version of these rules under the recently issued temporary guidance and
complies with specific requirements set forth in such guidance, the Swiss tax on interest generally will be treated as a creditable tax
(for taxable years for which such temporary relief applies, in the case of U.S. Holders relying on the temporary relief). In the case
of all other U.S. Holders, the application of these requirements to the Swiss tax is uncertain and we have not determined whether these
requirements have been met. If the Swiss tax is not a creditable tax for a U.S. Holder or such holder does not elect to claim a foreign
tax credit for any foreign income taxes paid or accrued in the same taxable year, such U.S. Holder may be eligible to deduct the Swiss
tax in computing its taxable income for U.S. federal income tax purposes, subject to generally applicable limitations under U.S. law.
An election to deduct foreign taxes instead of claiming foreign tax credits applies to all foreign taxes paid or accrued in the taxable
year. Dividend distributions will constitute income from sources without the United States and, for U.S. Holders that elect to claim foreign
tax credits, generally will constitute “passive category income” for foreign tax credit purposes.
The availability and calculation of foreign tax credits and deductions
for foreign taxes depend on a U.S. Holder’s particular circumstances and involve the application of complex rules to those circumstances.
The temporary guidance discussed above also indicates that the U.S. Treasury and the IRS are considering proposing amendments to the December
2021 regulations and that the temporary guidance can be relied upon until additional guidance is issued that withdraws or modifies the
temporary guidance.
U.S. Holders should consult their tax advisers regarding the application
of these rules to their particular circumstances.
Sale or Other Disposition of Common Shares
The following is subject to the discussion regarding the PFIC rules
described above.
Gain or loss realized by a U.S. Holder on the sale or other disposition
of common shares will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder’s holding period for
such common shares was more than one year as of the date of the sale or other disposition. The amount of the gain or loss will equal the
difference between the U.S. Holder’s tax basis in the common shares disposed of and the amount realized on the disposition, in each
case as determined in U.S. dollars. Long-term capital gain recognized by a non-corporate U.S. Holder is subject to U.S. federal income
tax at rates lower than the rates applicable to ordinary income and short-term capital gains, while short-term capital gains are subject
to U.S. federal income tax at the rates applicable to ordinary income. This gain or loss will generally be U.S.-source gain or loss for
foreign tax credit purposes. However, U.S. Holders that are eligible for benefits under the Treaty may be able to elect to treat the gain
as foreign-source income under the Treaty and claim a foreign tax credit in respect of Swiss taxes on disposition gains. The Foreign Tax
Credit Regulations generally preclude a U.S. Holder from claiming a foreign tax credit with respect to Swiss income taxes on gains from
dispositions of common shares if the U.S. Holder does not elect to apply the benefits of the Treaty. However, in that case, it is possible
that any Swiss taxes on disposition gains may either be deductible or reduce the amount realized on the disposition. The rules governing
foreign tax credits and deductibility of foreign taxes are complex. U.S. Holders should consult their tax advisers regarding their eligibility
for benefits under the Treaty and the consequences of the imposition of any Swiss tax on disposition gains. The deductibility of capital
losses is subject to various limitations.
Information Reporting and Backup Withholding
Payments of dividends on our common shares and sales proceeds that
are made within the United States or through certain U.S.-related financial intermediaries generally are subject to information reporting,
and may be subject to backup withholding, unless (i) the U.S. Holder is a corporation or other exempt recipient or (ii) in the case of
backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not subject to backup withholding.
The amount of any backup withholding from a payment to a U.S. Holder
will be allowed as a credit against the U.S. Holder’s U.S. federal income tax liability and may entitle it to a refund, provided
that the required information is timely furnished to the IRS.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies, under which
we may offer and sell up to $100,000,000 of our common shares from time to time through Jefferies, acting as agent. Sales of our common
shares, if any, under this prospectus supplement and the accompanying prospectus will be made by any method that is deemed to be an “at
the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell common shares under the sales agreement,
we will notify Jefferies of the number of common shares to be sold, the dates on which such sales are anticipated to be made, any limitation
on the number of common shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed
Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such common shares up to the amount specified on such terms. The obligations
of Jefferies under the sales agreement to sell our common shares are subject to a number of conditions that we must meet.
The settlement of sales of our common shares between us and Jefferies
is generally anticipated to occur on the first trading day following the date on which the sale was made. Sales of our common shares 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 up to 3.0% of the aggregate gross
proceeds we receive from each sale of our common shares. 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. Except
as we and Jefferies otherwise agree, we will reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution
of the sales agreement, in an amount not to exceed $100,000, in addition to certain ongoing disbursements of its legal counsel. We estimate
that the total expenses for the offering, excluding any commissions payable to Jefferies under the terms of the sales agreement, will
be approximately $2.6 million. The remaining proceeds, after deducting any other transaction fees, will equal our net proceeds from the
sale of our common shares in this offering.
Jefferies will provide written confirmation to us by 5:30 pm New York
City time on the day on which common shares are sold under the sales agreement. Each confirmation will include the number of common shares
sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of common shares 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 our common shares pursuant to the sales agreement will
terminate as permitted therein.
This summary of the material provisions of the sales agreement does
not purport to be a complete statement of its terms and conditions. A copy of the sales agreement is filed as an exhibit to the registration
statement of which this prospectus supplement forms a part.
Jefferies and its affiliates may in the future provide various investment
banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in
the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for
the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
A prospectus supplement and the accompanying prospectus in electronic
format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus supplement and the accompanying
prospectus electronically.
LEGAL MATTERS
The validity of the common shares offered and certain other matters
with respect to Swiss law will be passed upon for us by Homburger AG, Zurich, Switzerland. Certain matters with respect to U.S. federal
and New York State law will be passed upon for us by Davis Polk & Wardwell LLP, New York, New York. Jefferies LLC is represented in
connection with this offering by Cooley LLP, New York, New York with respect to matters of U.S. federal law and by Lenz & Staehelin,
Geneva, Switzerland, with respect to matters of Swiss law.
EXPERTS
The consolidated financial statements and management’s assessment
of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control
over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December
31, 2023 have been so incorporated in reliance on the report of PricewaterhouseCoopers SA, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act.
Accordingly, we are required to file reports and other information with the SEC, including annual, quarterly and current reports and proxy
and information statements. The SEC maintains an internet site at sec.gov that contains reports, proxy and information statements
and other information we have filed electronically with the SEC.
We have filed with the SEC a “shelf” registration statement
(including amendments and exhibits to the registration statement) on Form S-3 under the Securities Act. This prospectus supplement, which
is part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits
and schedules to the registration statement. We have omitted parts of the registration statement in accordance with the rules and regulations
of the SEC. For more detail about us and the common shares offered by this prospectus supplement, you may examine the registration statement
on Form S-3 and the exhibits filed with it at the website provided in the previous paragraph.
We maintain a corporate website at adctherapeutics.com. The
reference to our website is an inactive textual reference only, and information contained therein or connected thereto is not incorporated
into this prospectus supplement or the registration statement of which it forms a part.
INFORMATION INCORPORATED BY REFERENCE
The rules of the SEC allow us to incorporate by reference information
in this prospectus, which means that we disclose important information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference in this prospectus supplement is considered to be a part of this prospectus supplement.
Any statement made in this prospectus supplement or in a document incorporated or deemed to be incorporated by reference in this prospectus
supplement will be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained
in this prospectus supplement or in any other subsequently filed document that is also incorporated or deemed to be incorporated by reference
in 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. This prospectus supplement incorporates by reference
the documents listed below:
| · | our Current Reports on Form 8-K filed with the SEC on January
4, 2024 (containing Item 8.01 information), January
19, 2024, January
24, 2024, February
29, 2024, May
8, 2024 and June
14, 2024; and |
All subsequent documents that we file pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act (excluding, in each case, any information or documents deemed to be furnished and not filed), (i) on or
after the date of the initial filing of the registration statement of which this prospectus supplement forms a part and prior to the effectiveness
of such registration statement and (ii) on or after the date of this prospectus supplement and prior to the completion or termination
of this offering, shall be incorporated by reference.
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 sec.gov. Our filings with the SEC are
also available free of charge on our website (adctherapeutics.com) as soon as reasonably practicable after they are filed with,
or furnished to, the SEC. The reference to our website is an inactive textual reference only, and information contained therein
or connected thereto is not incorporated into this prospectus supplement or the registration statement of which it forms a part.
We will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all the
reports or documents incorporated by reference in this prospectus supplement at no cost, upon written or oral request to us at
the following address:
Investor Relations
ADC Therapeutics SA
c/o ADC Therapeutics America, Inc.
430 Mountain Avenue, 4th Floor
Murray Hill, NJ 07974
(908) 731-5556
ADC THERAPEUTICS SA
Up to $100,000,000
Common Shares
PROSPECTUS SUPPLEMENT
Jefferies
,
2024
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution
The following table sets forth the expenses (other than underwriting
discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation, if any) expected
to be incurred by us in connection with a possible offering of securities registered under this registration statement:
| Expenses | |
Amount |
| SEC registration fee | |
$ | 15,604.03 | |
| Transfer agent’s and trustee’s fees and expenses | |
| (1 | ) |
| Printing expenses | |
| (1 | ) |
| Legal fees and expenses | |
| (1 | ) |
| Accounting fees and expenses | |
| (1 | ) |
| Miscellaneous costs | |
| (1 | ) |
| Total | |
$ | (1 | ) |
| (1) | These fees and expenses depend on the securities offered and the number of offerings, and accordingly cannot be estimated at this
time and will be reflected in the applicable prospectus supplement. |
Item 15. Indemnification of Directors
and Officers
Under Swiss law, a corporation may indemnify its directors or officers
against losses and expenses (except for such losses and expenses arising from willful misconduct or negligence, although legal scholars
advocate that at least gross negligence be required), including attorney’s fees, judgments, fines and settlement amounts actually
and reasonably incurred in a civil or criminal action, suit or proceeding by reason of having been the representative of, or serving at
the request of, the corporation.
Subject to Swiss law, our articles of association provide for indemnification
of the existing and former members of our board of directors and our executive committee as well as their heirs, executors and administrators,
against liabilities arising in connection with the performance of their duties in such capacity, and our articles of association require
us to advance the expenses of defending any action, suit or proceeding to existing and former members of our board of directors and our
executive committee to the extent not included in insurance coverage or advanced by third parties.
In addition, under general principles of Swiss employment law, an employer
may be required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of their duties
under the employment agreement with the company.
We have entered into indemnification agreements with each of the members
of our board of directors and executive officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the “Securities Act”) may be permitted to directors, officers and controlling persons of the Company,
the Company has been advised that, in the opinion of the U.S. Securities and Exchange Commission (the “SEC”), such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
The following documents are filed as part of this registration statement:
| |
|
Incorporation by Reference |
| Exhibit No. |
Description |
Form |
File No. |
Exhibit
No. |
Filing Date |
| 1.1* |
Form of Underwriting Agreement |
|
|
|
|
| 1.2 |
Open Market Sale AgreementSM, dated August 6, 2024, between ADC Therapeutics SA and Jefferies LLC |
|
|
|
|
| 4.1 |
Articles of Association of ADC Therapeutics SA |
8-K |
001-39071 |
3.1 |
June 14, 2024 |
| 4.1.1 |
Letter Agreement, dated January 18, 2024, between ADC Therapeutics SA and Redmile LLC |
8-K |
001-39071 |
10.1 |
January 24, 2024 |
| 4.2 |
Form of Indenture |
F-3 |
333-270570 |
4.2 |
March 15, 2023 |
| 4.3* |
Form of Note |
|
|
|
|
| 4.4* |
Form of Warrant Agreement |
|
|
|
|
| 4.5* |
Form of Subscription Rights Agreement |
|
|
|
|
| 4.6* |
Form of Purchase Contract |
|
|
|
|
| 4.7* |
Form of Unit Agreement |
|
|
|
|
| 5.1 |
Opinion of Homburger AG, Swiss counsel of ADC Therapeutics SA |
|
|
|
|
| 5.2 |
Opinion of Davis Polk & Wardwell LLP, U.S. counsel of ADC Therapeutics SA |
|
|
|
|
| 23.1 |
Consent of PricewaterhouseCoopers SA, independent registered public accounting firm |
|
|
|
|
| 23.2 |
Consent of Homburger AG (included in Exhibit 5.1) |
|
|
|
|
| 23.3 |
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.2) |
|
|
|
|
| 24.1 |
Powers of attorney (included on signature page to the registration statement) |
|
|
|
|
| 25.1† |
Statement of Eligibility on Form T-1 |
|
|
|
|
| 107 |
Filing fee table |
|
|
|
|
| * | To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of securities. |
| † | 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:
| (a) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(1) to include any prospectus
required by Section 10(a)(3) of the Securities Act;
(2) to reflect in the prospectus
any facts or events arising after the effective date of this 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation
of Registration Fee” table, as applicable, in the effective registration statement; and
(3) 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 (a)(1),
(a)(2) and (a)(3) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
| (b) | that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; |
| (c) | 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; |
| (d) | that, for the purpose of determining liability under the Securities Act to any purchaser: |
(1) 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
(2) 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 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; and
| (e) | that, for the purpose of determining liability of the registrant under the Securities Act 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: |
(1) any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2) 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;
(3) 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
(4) any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless, in the opinion of its counsel, the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities
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 Section 310(a) of the Trust Indenture Act (“Trust Indenture
Act”) in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the municipality of Epalinges, Switzerland on August 6, 2024.
| |
ADC THERAPEUTICS SA |
| |
|
| |
By: |
/s/ Ameet Mallik |
| |
|
Name: |
Ameet Mallik |
| |
|
Title: |
Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Ameet Mallik, Jose “Pepe” Carmona and Peter J. Graham and each of them, individually,
as 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, in connection with this registration statement, including to sign in the name
and on behalf of the undersigned, this registration statement and any and all amendments thereto, including post-effective amendments
and registrations filed pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents,
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons on August 6, 2024 in the capacities indicated:
| Name |
|
Title |
| |
|
|
| /s/ Ameet Mallik |
|
Chief Executive Officer and Director
(principal executive officer)
|
| Ameet Mallik |
|
| |
|
|
| /s/ Jose “Pepe” Carmona |
|
Chief Financial Officer
(principal financial officer)
|
| Jose “Pepe” Carmona |
|
| |
|
|
| /s/ Lisa Kallebo |
|
Corporate Controller and Chief Accounting Officer
(principal accounting officer)
|
| Lisa Kallebo |
|
| |
|
|
| /s/ Ron Squarer |
|
Chairperson of the Board of Directors |
| Ron Squarer |
|
| |
|
|
| /s/ Robert Azelby |
|
Director |
| Robert Azelby |
|
|
| |
|
|
| /s/ Jean-Pierre Bizzari |
|
Director |
| Jean-Pierre Bizzari |
|
| /s/ Peter Hug |
|
Director |
| Peter Hug |
|
| |
|
|
| /s/ Viviane Monges |
|
Director |
| Viviane Monges |
|
| |
|
|
| /s/ Thomas Pfisterer |
|
Director |
| Thomas Pfisterer |
|
| |
|
|
| /s/ Tyrell J. Rivers |
|
Director |
| Tyrell J. Rivers |
|
| |
|
|
| /s/ Victor Sandor |
|
Director |
| Victor Sandor |
|
| |
|
|
| /s/ Jose “Pepe” Carmona |
|
Authorized Representative in the United States |
| Jose “Pepe” Carmona |
|
| |
|
| ADC Therapeutics America, Inc. |
|
|
Exhibit 1.2
OPEN MARKET SALE AGREEMENTSM
August 6, 2024
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
ADC Therapeutics SA, a Swiss
stock corporation (société anonyme) domiciled in Epalinges, Switzerland, and organized under the laws of Switzerland
(the “Company”), proposes, subject to the terms and conditions stated herein, to sell from time to time through Jefferies
LLC, as sales agent and/or principal (the “Agent”), common shares of the Company, nominal value CHF 0.08 per share
(the “Common Shares”), having an aggregate offering price of up to $100,000,000 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.
“Effective Price”
means the Sales Price less the Selling 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 Sale Notice below which the Agent shall not sell Shares during the applicable period
set forth in the Sale Notice, which may be adjusted by the Company at any time during the period set forth in the Sale 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.
“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 Common Shares issuable
out of the Company’s capital range or held in treasury by the Company and/or any of its subsidiaries and reserved by the Company’s
board of directors for purposes of sale under this Agreement, (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), (d) the number or dollar amount of Common Shares for which the
Company has filed a Prospectus (defined below) or (e) $100,000,000.
SM “Open Market Sale Agreement” is a service
mark of Jefferies LLC
“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 New York Stock Exchange or such other national securities exchange on which the Common Shares, including any Shares, are then
listed.
“Sale Amount”
means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Sale Notice.
“Sale Notice”
means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached hereto as Exhibit
A that is executed by its Chief Executive Officer, Chief Financial Officer or Chief Legal Officer.
“Sale Notice Date”
means any Trading Day during the Agency Period that a Sale Notice is delivered pursuant to Section 3(b)(i).
“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 up to three percent (3.0%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the Company
and the Agent with respect to any Shares sold pursuant to this Agreement.
“Settlement Date”
means the first business day following each Trading Day during the period set forth in the Sale 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 Effective Price received on such sales.
“Shares” shall
mean the Company’s Common Shares to be sold pursuant to this Agreement.
“Trading Day”
means any day on which the Principal Market is open for trading.
Section 2. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and warrants
to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Sale 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) The
Company has prepared and will file, or has filed, as applicable, with the Commission a shelf registration statement on Form S-3 that contains
a base prospectus (the “Base Prospectus”). Such registration statement registers, among other securities, 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.
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) The
Registration Statement and any registration statement filed pursuant to Rule 462(b) under the Securities Act with respect to the Registration
Statement (a “Rule 462(b) Registration Statement”) have been or will be, as applicable, declared effective by the Commission
under the Securities Act (to the extent such declaration of effectiveness is required 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, as applicable, 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) 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 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, and electronic road shows, if any, furnished to the Agent before
first use, the Company has not prepared, used or referred to, and will not, without the Agent’s prior consent, prepare, use or refer
to, any Free Writing Prospectus.
(d) 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) Any
Free Writing Prospectus at the time it was filed with the Commission, when read together with the other information in the Prospectus,
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) The
Company has been duly incorporated and is validly existing as a Swiss stock corporation (société anonyme) in
good standing (to the extent this concept applies) under the laws of Switzerland, has the corporate power and authority to own its property
and to conduct its business as described in the Registration Statement and the Prospectus, is not in liquidation or receivership or the
subject of any insolvency or bankruptcy proceedings and is duly qualified to transact business (and, if applicable, is in good standing)
in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing (to the extent this concept applies) would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(g) Each
subsidiary of the Company has been duly incorporated, is validly existing as a corporation (and, if applicable, in good standing) under
the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business
as described in the Registration Statement and the Prospectus, is not in liquidation or receivership or the subject of any insolvency
or bankruptcy proceedings and is duly qualified to transact business (and, if applicable, is in good standing) in each jurisdiction in
which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing (to the extent this concept applies) would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. Except as otherwise described in each of the Registration Statement and the Prospectus, all of
the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and such shares are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims. Except
as disclosed in the Registration Statement and the Prospectus and other than the Common Shares held by the Company in treasury, the Company,
directly or indirectly, owns no share capital or other equity or ownership or proprietary interest in any corporation, partnership, association,
trust or other entity.
(h) This
Agreement has been duly authorized, executed and delivered by the Company.
(i) The
Common Shares outstanding prior to the sale of the Shares have been duly authorized and are validly issued, fully paid and non-assessable.
(j) (i)
The issued and outstanding share capital of the Company and the capital range and conditional share capital of the Company conform as
to legal matters to the description thereof contained in each of the Registration Statement and the Prospectus, (ii) except as otherwise
described in each of the Registration Statement and the Prospectus, there are no outstanding rights (including, without limitation, subscription
rights), warrants or options to acquire, or instruments, securities or rights convertible into or exchangeable for, any Common Shares
or other equity interest in the Company to which the Company or any of its subsidiaries is a party, or any contract, commitment, or arrangement
of any kind to which the Company or any of its subsidiaries is a party under which the Company or any of its subsidiaries have committed
to issue any Common Shares or grant any such convertible or exchangeable securities or any such rights, warrants or options, (iii) except
as otherwise described in each of the Registration Statement and the Prospectus, there are no outstanding rights (including, without limitation,
subscription rights), warrants or options to acquire, or instruments, securities or rights convertible into or exchangeable for, any shares
of any of the Company’s subsidiaries to which the Company or any of its subsidiaries is a party, or any contract, commitment, or
arrangement of any kind to which the Company or any of its subsidiaries is a party under which the Company or any of its subsidiaries
have committed to issue any shares, rights, warrants or options or instruments convertible into or exchangeable for, any shares of any
subsidiary of the Company and (iv) there are no legal restrictions on the subsequent transfer of the Shares except as otherwise described
in each of the Registration Statement and the Prospectus.
(k) The
sale of the Shares will have been duly authorized on the Settlement Date, and (i) the Shares, when delivered and paid for in the manner
contemplated by this Agreement, will, at all times, be validly issued, fully paid and non-assessable; and (ii) the Shares, when delivered
and paid for in the manner contemplated by this Agreement, will be, subject only to any restrictions applicable under the Company’s
articles of association or applicable laws, freely transferable except as otherwise described in each of the Registration Statement and
the Prospectus, and will not be subject to any pre-emptive right that has not been validly excluded, third party rights or similar rights
(including without limitation any security interest under articles 24 and 25 of the Swiss Federal Act on Intermediated Securities) granted
by the Company or any of its subsidiaries other than as contemplated by this Agreement.
(l) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement does not contravene
any provision of (i) applicable law, (ii) the articles of association (Statuts) or the organizational regulations (Règlement
d'organisation) of the Company (iii) or any agreement, or other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency,
or court having jurisdiction over the Company or any subsidiary, except that in the case of clauses (i) and (iii) as would not, individually,
or in the aggregate, have a material adverse effect on the Company or on the power and ability of the Company to perform its obligations
under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement, except (A) such as have been obtained or waived or as may
be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares; (B) the entry
of the Shares in the Commercial Register of the Canton of Vaud; (C) the creation of intermediated securities (titres intermédiés)
by way of entry of the Shares into the Depository Trust Company (“DTC”) and the subsequent crediting in one or several
securities account(s); and (D) the listing of the Shares on Principal Market, subject to all of (A) to (D) being obtained or done on or
prior to the applicable Settlement Date.
(m) Except
as otherwise described in each of the Registration Statement and the Prospectus, all dividends, if any, and other distributions declared
and payable on the Shares may under the current laws and regulations of Switzerland be paid in freely convertible CHF and, except for
certain restrictions with respect to national and international sanctions relating to certain countries, may be freely transferred out
of Switzerland without there being required any authorization by any governmental body or agency.
(n) There
has not occurred any material adverse effect on the Company and its subsidiaries, taken as a whole, or any development involving a prospective
material adverse effect on the Company and its subsidiaries, taken as a whole, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and the
Prospectus.
(o) There
are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the
Company or any of its subsidiaries is subject (i)
other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not reasonably be expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material adverse effect on the power or
ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus
or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects;
and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(p) The
Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended.
(q) The
Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state, cantonal and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals
or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) There
are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(s) Except
as otherwise have been validly waived or complied with in connection with the sale of the Shares contemplated hereby or as described in
each of the Registration Statement and the Prospectus, there are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to
any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration
Statement.
(t) (i)
None of the Company or its subsidiaries or controlled Affiliates, or any director or officer, or, to the Company’s knowledge, any
employee, agent or representative of the Company or of any of its subsidiaries or controlled Affiliates, has taken or will take any action
in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property,
gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government
or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or
on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to influence official
action, or to any person in violation of any applicable anti-corruption laws; (ii) the Company and its subsidiaries and controlled Affiliates
have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue
to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations
and warranties contained herein; and (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of
the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else
of value, to any person in violation of any applicable anti-corruption laws.
(u) The
operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial
recordkeeping and reporting requirements, including, to the extent applicable, those of the Bank Secrecy Act, as amended by Title III
of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of 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 agency
(collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
(v) (i)
Neither the Company nor any of its subsidiaries, nor any director or officer thereof, nor, to the Company’s knowledge, any employee,
agent, controlled Affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is: the subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”),
the European Union (“EU”), His Majesty’s Treasury (“HMT”), the Swiss State Secretariat of
Economic Affairs (“SECO”), the Swiss Directorate of International Law (“DIL”) or other relevant
sanctions authority (collectively, “Sanctions”), or located, organized or resident in a country or territory that is
the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region located in Ukraine, and the
so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine as may
be determined by the U.S. Secretary of the Treasury pursuant to Executive Order 14065). (ii) The Company will not, directly or indirectly,
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other Person: to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions; or in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). (iii) Since April
24, 2019, the Company and its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(w) Subsequent
to the respective dates as of which information is given in each of the Registration Statement and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction;
(ii) the Company has not purchased any of its outstanding share capital other than from its employees or other service-providers in connection
with the termination of their service pursuant to the terms of the equity compensation plans nor declared, paid or otherwise made any
dividend or distribution of any kind on its share capital; and (iii) except for the issuance of Common Shares into treasury, there has
not been any material change in the share capital (other than the exercise or settlement or equity awards or grants or forfeiture of equity
awards outstanding as of such respective dates as of which information is given in each of the Registration Statement and the Prospectus,
in each case granted pursuant to the equity compensation plans described in each of the Registration Statement and the Prospectus), short-term
debt or long-term debt of the Company and its subsidiaries, except in each case as described in each of the Registration Statement and
the Prospectus, respectively.
(x) The
Company and its subsidiaries have good and marketable title to all real property and good and marketable title to all personal property
(other than intellectual property, which is addressed exclusively in Section 2(y)) owned by them which is material to the
business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described
in the Registration Statement and the Prospectus or such as do not 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 and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company
and its subsidiaries, in each case except as described in the Registration Statement or Prospectus.
(y) Except
as described in each of 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 Company and its subsidiaries own or have a valid license to all patents, inventions, copyrights,
know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, “Intellectual Property Rights”) used in or reasonably necessary
to the conduct of their businesses as now operated by them, and as proposed to be operated in the future (including upon the commercialization
of the Company’s and its subsidiaries’ products or services), in each case as described in the Registration Statement or the
Prospectus (the “Company Intellectual Property”); (ii) to the Company’s
knowledge, there are no third parties who have rights
to any Company Intellectual Property, except for customary reversionary rights of third-party licensors; (iii) the Company Intellectual
Property owned by the Company and its subsidiaries and, to the Company’s knowledge, the Company Intellectual Property licensed to
the Company and its subsidiaries, are subsisting and, to the Company’s knowledge, valid and enforceable; (iv) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, scope or enforceability
of any Company Intellectual Property, and, to the Company’s knowledge, the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; (v) there is no pending or, to the Company’s knowledge, threatened in writing
action, suit, proceeding or claim by others challenging the Company’s rights in or to any Company Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (vi) neither the Company
nor any of its subsidiaries has received any written notice alleging any infringement, misappropriation or other violation of Intellectual
Property Rights; (vii) to the Company’s knowledge, no third party is infringing, misappropriating or otherwise violating, or has
infringed, misappropriated or otherwise violated, any Company Intellectual Property owned by the Company; (viii) to the Company’s
knowledge, (A) neither the Company nor any of its subsidiaries infringes, misappropriates or otherwise violates, or has infringed, misappropriated
or otherwise violated, any third-party Intellectual Property Rights, and (B) the commercialization of the products or services described
in the Prospectus, the Registration Statement or the Prospectus as under development by the Company will not infringe, misappropriate,
or otherwise violate any third-party Intellectual Property Rights; (ix) to the Company’s knowledge, the Company and its subsidiaries
have complied with the terms of each agreement to which they are a party and pursuant to which Intellectual Property Rights have been
licensed to the Company or its subsidiaries, and all such agreements are in full force and effect; (x) to the Company’s knowledge,
during the prosecution of the patents and patent applications included in the Company Intellectual Property, the Company and its subsidiaries
have complied with the duty of candor and good faith with respect to such patents and patent applications as required by the United States
Patent and Trademark Office and all foreign offices having similar requirements; (xi) all employees or contractors engaged in the development
of Company Intellectual Property on behalf of the Company or any subsidiary of the Company have executed an invention assignment agreement
whereby such employees or contractors presently assign all of their right, title and interest in and to such Company Intellectual Property
to the Company or the applicable subsidiary, and no such agreement has been breached or violated; (xii) to the Company’s knowledge,
none of the Company Intellectual Property has been obtained, or is being used, by the Company or its subsidiary in violation of any contractual
obligation binding on the Company or its subsidiaries or any of their respective officers, directors or employees or otherwise in violation
of the rights of any persons; and (xiii) the Company and its subsidiaries use, and have used, commercially reasonable efforts to appropriately
maintain all information intended to be maintained as a trade secret.
(z) No
labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Registration Statement or
the Prospectus, or, to the knowledge of the Company, is imminent, in either case, that would have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and the Company is not aware of any existing, threatened or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(aa) The Company and each
of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as
the Company reasonably believes are prudent and customary in the businesses in which they are engaged, except where the failure to be
so insured would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; neither
the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for three years preceding the date of
this Agreement; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken
as a whole, except as described in the Registration Statement or the Prospectus.
(bb) The Company and its subsidiaries,
taken as a whole, possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except where the failure to obtain such certificates, authorization and
permits would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole,
and neither
the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole, except as described in the Registration Statement or the Prospectus.
(cc) The Company and its subsidiaries
on a consolidated basis maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States
(“GAAP”) and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences and (v) the interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called for in all
material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(dd) Except as described in
each of the Registration Statement and the Prospectus, since the end of the Company’s most recent audited fiscal year, there
has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii)
no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably
likely to materially and adversely affect, the Company’s internal control over financial reporting.
(ee) Except as described in
each of the Registration Statement and the Prospectus, the Company has not sold, issued or distributed any Common Shares, during the six-month
period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(ff) The Company and each
of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement
or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid thereon (except for cases in
which the failure to file or pay would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except
as currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of the
Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company
nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely
to the Company or its subsidiaries and which would reasonably be expected to have) a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(gg) The consolidated financial
statements included in the Registration Statement or the Prospectus, together with the related schedules and notes thereto, present fairly
in all material respects the consolidated financial position of the Company as of the dates shown and its results of operations and cash
flows for the periods shown, and, except as otherwise disclosed in the Registration Statement or the Prospectus, such financial statements
have been prepared in conformity with GAAP applied on a consistent basis throughout the periods covered thereby except for any normal
year-end adjustments in the Company’s quarterly financial statements and except as otherwise noted therein. 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.
(hh) PricewaterhouseCoopers
SA, who has audited certain financial statements of the Company, is (i) an independent registered public accounting firm with respect
to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission
and the Public Company Accounting Oversight Board (United States) and (ii) an independent statutory auditor with respect to the Company
and a state regulated audit firm (société d'audit réglementée par l'État) under the applicable
provisions of the CO, and the Swiss Audit Oversight Act (Loi fédérale sur l’agrément et la surveillance
des réviseurs) and any ordinances promulgated thereunder, respectively.
(ii) Except
as described in each of the Registration Statement and the Prospectus, no stamp, documentary, issuance, registration, transfer, withholding
or other taxes or duties are payable by or on behalf of the Agent, the Company or any of its subsidiaries in Switzerland or to any taxing
authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the creation, allotment
and issuance of the Shares, (iii) the sale and delivery of the Shares to the Agent or purchasers procured by the Agent or (iv) the resale
and delivery of the Shares by the Agent in the manner contemplated herein.
(jj) It is not necessary under
the laws of Switzerland (i) to enable the Agent to enforce their rights under this Agreement, to enable any holder of the Shares to enforce
their respective rights thereunder, provided that they are not otherwise engaged in business in Switzerland or (ii) solely by reason of
the execution, delivery or consummation of this Agreement for the Agent or any holder of the Shares of the Company to be qualified or
entitled to carry out business in Switzerland.
(kk) This Agreement is in
proper form under the laws of Switzerland for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability
or admissibility into evidence in Switzerland of this Agreement.
(ll) The courts of Switzerland
would recognize as a valid judgment any final monetary judgment obtained against the Company in the courts of the State of New York, unless
the judgment would be deemed incompatible with Swiss public policy.
(mm) Neither the Company nor
any of its subsidiaries has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Switzerland; provided, however, that
(i) such choice of law may not extend to non-contractual obligations, (ii) the contents of the chosen law of the State of New York may
need to be proven as a matter of fact and (iii) a Swiss court would apply Swiss procedural rules. The irrevocable and unconditional waiver
and agreement of the Company contained in Section 8(g) not to plead or claim any such immunity in any legal action, suit
or proceeding based on this Agreement is valid and binding under the laws of Switzerland.
(nn) The choice of law of
the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Switzerland and will be honored
by the courts of Switzerland, provided, however, that (i) such choice of law may not extend to non-contractual obligations, (ii)
the contents of the chosen law of the State of New York may need to be proven as a matter of fact and (iii) a Swiss court would apply
Swiss procedural rules. The Company has the power to submit, and pursuant to Section 8(g) has, to the extent permitted by
law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section
8(g)), and has the power to designate, appoint and empower, and pursuant to Section 8(h), has legally, validly and effectively
designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement
in any of the Specified Courts.
(oo) Neither
the Company nor any of its subsidiaries or Affiliates has any securities rated by any “nationally recognized statistical rating
organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(pp) Nothing has come to the
attention of the Company that has caused the Company to believe that the statistical and market-related data included in the Registration
Statement and the Prospectus is not based on or derived from sources that are reliable and accurate.
(qq) Except as described in
each of the Registration Statement or 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 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 accordance with the protocols submitted to the U.S. Food and Drug Administration (the
“FDA”), the Swiss Agency for Therapeutic Products (“swissmedic”), 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, FOPH,
swissethics and swissmedic) (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 and fairly present 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 or threatening 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.
(rr) Except as described in
each of the Registration Statement or the Prospectus and except as would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, the Company has not failed to file with the Regulatory Authorities any required filing, declaration, listing, registration,
report or submission that is a responsibility of the Company with respect to the Company’s products or product candidates that are
described or referred to in the Registration Statement and the Prospectus; all such filings, declarations, listings, registrations, reports
or submissions were to the Company’s knowledge in compliance with applicable laws when filed; and to the Company’s knowledge
no deficiencies regarding compliance with applicable law have been asserted by any applicable Regulatory Authority with respect to any
such filings, declarations, listings, registrations, reports or submissions.
(ss) Except as described in
each of the Registration Statement or the Prospectus and except as would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, the Company and its subsidiaries have, 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, 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).
(tt) Except as described in
each of the Registration Statement or the Prospectus and except as would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, (i) there has been no security breach or incident, unauthorized access or disclosure, or other compromise of the Company
and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications,
technology, data and databases, including Personal Data (defined below), the data and information of their respective customers and employees,
and any sensitive, confidential or regulated data maintained, processed or stored by the Company and its subsidiaries (collectively, “IT
Systems and Data”); (ii) the IT Systems and Data are adequate for, and operate and perform as required in connection with the
operation of the business of the Company and its subsidiaries as currently conducted; (iii) the Company and its subsidiaries have used
commercially reasonable efforts to implement and maintain, and have implemented and maintained, commercially reasonable information technology,
information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption,
physical, technological and administrative safeguards and controls, and business continuity/disaster recovery and security plans that
are designed to protect against and prevent security breaches, unauthorized use or access, disablement, misappropriation, modification,
or other compromise or misuse of the IT Systems and Data, and maintain and protect their material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and Data used in connection with the operation of the Company’s
and its subsidiaries’ businesses, which are reasonably consistent with industry standards. “Personal Data” means
(i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) “personal
data” as defined by GDPR (defined below); (iii) any information which would qualify as “protected health information”
under HIPAA; and (iv) any other piece of information that (A) is regulated by an applicable privacy law, regulation or contract and (B)
allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an
identified person’s health or sexual orientation.
(uu) Except as described in
each of 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 Company and each of its subsidiaries have complied, and are presently in compliance, in all material respects,
with all applicable internal and external privacy policies, contractual obligations, applicable state, federal and international data
privacy and security laws and regulations, including without limitation, HIPAA, the European Union General Data Protection Regulation
(“GDPR”) (EU 2016/679), and other statutes, judgments, orders, rules and regulations of any applicable court or arbitrator
or other governmental or regulatory authority (collectively, the “Data Security Obligations”); (ii) the Company has
not received from any applicable governmental authority any written notification of or written complaint alleging non-compliance by the
Company or its subsidiaries with any Data Security Obligation; (iii) there is no action, suit or proceeding by or before any applicable
court or governmental agency, authority or body pending or threatened in writing alleging non-compliance by the Company or its subsidiaries;
(iv) to ensure compliance with the Data Security Obligations, the Company and its subsidiaries have at all times had in place, comply
with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures
relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data that is subject
to the Data Security Obligations (the “Policies”); and (v) the Company and its subsidiaries have made all disclosures
of its then-current Policies to users or customers required by applicable laws and regulatory rules or requirements, and none of such
disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws
and regulatory rules or requirements.
(vv) The Company maintains
disclosure controls and procedures that comply with the requirements of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer
and principal financial officer by others within the Company; and such disclosure controls and procedures are effective at the reasonable
assurance level.
(ww) 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 compliance with all applicable listing requirements of the Principal Market.
(xx) Neither
the Company nor any of its subsidiaries has taken, directly or indirectly, without giving effect to the activities of the Agent, any action
designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares
or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”))
with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which
would directly or indirectly violate Regulation M.
(yy) 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 Financial Industry Regulatory Authority, Inc.’s (“FINRA”) rules and any letters, filings or
other supplemental information provided to FINRA pursuant to FINRA Rules is true, complete and correct. As of the date of the filing of
the Registration Statement and any Prospectus, the Company meets the definition of the term “experienced issuer” specified
in FINRA Rule 5110(j)(6).
(zz) 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.
(aaa) The Company is in compliance,
in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder.
(bbb) 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 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(o) 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. SALE OF COMMON
SHARES
(a) Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through the Agent, acting
as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with Sale Notices as the Company may deliver, during the Agency Period.
(b) Mechanics
of Sales.
(i) Sale
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 a Sale Notice; provided, however, that (A) in no event may the Company
deliver a Sale Notice to the extent that the sum of (x) the aggregate Sales Price of the requested Sale Amount, plus (y) the aggregate
Sales Price of all Shares sold under all previous Sale Notices effected pursuant to this Agreement, would exceed the Maximum Program Amount;
and (B) prior to delivery of any Sale Notice, the period set forth for any previous Sale Notice shall have expired or been terminated.
A Sale 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 a Sale 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 Sale 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 a Sale 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 5:30
p.m. (New York City time) on 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 Effective 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 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 Effective 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 a Sale Notice shall immediately terminate; provided, however, that (A) such suspension and termination shall not affect or impair
either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt of such notice; (B) if the Company
suspends or terminates any sale of Shares after the Agent confirms such sale to the Company, the Company shall still be obligated to comply
with Section 3(b)(v) with respect to such Shares; and (C) if the Company defaults in its obligation to deliver Shares
on a Settlement Date, the Company agrees that it will hold the Agent harmless against any loss, claim, damage or expense (including, without
limitation, penalties, interest and reasonable 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 Sale 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 Sale 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 Sale 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 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) $100,000 in connection with the execution of this Agreement and (B) $25,000 in connection with each 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 (1) 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 (2) 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 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 registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement through incorporation
of any report filed under the Exchange Act), 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 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 a Sale Notice in connection with the offering or
sale of the Shares and if at such time any event has occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason
it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that
the Agent suspend offers to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company
decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent promptly
by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect
such compliance, 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 Sales 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 Sale 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 Sale Notice is canceled, free of preemptive rights, Shares for the purpose of enabling the Company
to satisfy its obligations under the respective Sale Notice.
(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 a Sale 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 Sale 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 Sale 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 Sale Notice and, during the
term of this Agreement after the date of the first Sale 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 10-K relating
to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No.
144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any such event, a “Triggering
Event Date”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines
that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering
Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar to the form attached as Exhibit
B hereto. 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 Sale 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 Sale 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) a negative assurance letter and a written legal opinion of Davis Polk & Wardwell LLP, U.S. counsel to
the Company, and a written legal opinion of Homburger AG, Swiss 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; and (B) the written
legal opinions of each of Foley & Lardner LLP, Medler Ferro Woodhouse & Mills PLLC, and Mewburn Ellis 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 Sale 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 PricewaterhouseCoopers SA, 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 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 Sale 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 and substance substantially similar to the form attached as Exhibit C hereto.
(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
second Trading Day immediately prior to the date on which any Sale Notice is delivered to the Agent hereunder and ending on the Trading
Day immediately following the Settlement Date with respect to Shares; 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 (i) the grant or settlement of options, restricted shares or restricted
share units to officers, directors, employees and consultants of the Company or its subsidiaries under any incentive compensation plan
or the issuance by the Company of Common Shares upon the exercise of options granted under such plan, in each case, in effect on the date
of this Agreement or subsequently disclosed in filings by the Company available on EDGAR or the filing by the Company of a registration
statement with the Commission on Form S-8 in connection therewith, (ii) the issuance, offer or sale of Common Shares upon the exercise
of an option or warrant or the conversion of a security disclosed in the Registration Statement and Prospectus, (iii) the issuance, offer
and sale by the Company 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 (iii) shall not exceed 5.0% of the total number of Common
Shares issued and outstanding immediately prior to such issuance or sale), or (iv) the filing (including the effectiveness) of registration
statements and prospectuses (including amendments and supplements thereto) with the Commission exclusively as a result of contractual
obligations described in the Registration Statement and the Prospectus.
Section 5. CONDITIONS TO
DELIVERY OF SALE NOTICES AND TO SETTLEMENT
(a) Conditions
Precedent to the Right of the Company to Deliver a Sale Notice and the Obligation of the Agent to Sell Shares. The right of the Company
to deliver a Sale Notice hereunder is subject to the satisfaction, on the date of delivery of such Sale Notice, and the obligation of
the Agent to use its commercially reasonable efforts to place Shares during the applicable period set forth in the Sale Notice is subject
to the satisfaction, on each Trading Day during the applicable period set forth in the Sale Notice, of each of the following conditions:
(i) Accuracy
of the Company’s Representations and Warranties; Performance by the Company. The Company shall have delivered the certificate
required to be delivered pursuant to Section 4(o) on or before the date on which delivery of such certificate is required
pursuant to Section 4(o). The Company shall have performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the Company at or prior to such date, including, but not limited
to, the covenants contained in Section 4(p), Section 4(q) and Section 4(r).
(ii) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of
the transactions contemplated by this Agreement.
(iii) Material
Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information, (a) in the judgment of the Agent there shall
not have occurred any material adverse change; and (b) there shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,
in the rating accorded any securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating
organization” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.
(iv) No
Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common Shares (including without limitation
the Shares) shall not have been suspended by the Commission, the Principal Market or FINRA and the Common Shares (including without limitation
the Shares) shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market. 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 Sale 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 Sale Notice Date of a certificate in
form and substance reasonably satisfactory to the Agent, executed by the Chief Executive Officer, Chief Financial Officer or Chief Legal
Officer of the Company, to the effect that all conditions to the delivery of such Sale 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 Sale 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 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 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 shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section
6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local counsel) for the
indemnified parties shall be selected by the indemnified party (in the case of counsel for the indemnified parties referred to in Section
6(a) and Section 6(b) above), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying
party, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as
they are incurred.
(d) Settlements.
The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request; and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit
or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder
by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding.
(e) Contribution.
If the indemnification provided for in this Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Agent, on the other hand, from the offering of the Shares pursuant to this
Agreement; or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand,
and the Agent, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and
the Agent, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total gross proceeds from the offering of the Shares (before deducting expenses) received by the Company
bear to the total commissions received by the Agent. The relative fault of the Company, on the one hand, and the Agent, on the other hand,
shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Agent, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to
the limitations set forth in Section 6(c), any legal or other
fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim. The provisions set forth in Section
6(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section
6(e); provided, however, that no additional notice shall be required with respect to any action for which notice has been given
under Section 6(c) for purposes of indemnification.
The Company and the Agent agree
that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section
6(e).
Notwithstanding the provisions
of this Section 6(e), the Agent shall not be required to contribute any amount in excess of the Selling Commission
received by the Agent in connection with the offering contemplated hereby. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(e), each officer and employee of the Agent and each person,
if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution
as the Agent, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution
as the Company.
Section 7. TERMINATION &
SURVIVAL
(a) Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement
until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section
7.
(b) Termination;
Survival Following Termination.
(i) Either
party may terminate this Agreement prior to the end of the Agency Period, by giving written notice as required by this Agreement, upon
ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company terminates this Agreement after the Agent
confirms to the Company any sale of Shares, the Company shall remain obligated to comply with Section 3(b)(v) with
respect to such Shares and (B) Section 2, Section 3(d), Section 6, Section
7 and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date
for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement.
(ii) In
addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations, warranties
and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any of its or their partners, officers
or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery
of and payment for the Shares sold hereunder and any termination of this Agreement.
Section 8. MISCELLANEOUS
(a) Press
Releases and Disclosure. No party hereto shall issue 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 reasonably 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; provided that such consultation and agreement shall
not be required for any disclosure that is substantially similar to any prior disclosure 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 shareholders, 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 that differ from those of the Company,
and (v) the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated hereby
and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(c) Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required to and
should be independent from their respective investment banking divisions and are subject to certain regulations and internal policies,
and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions. The Company
understands that the Agent is a full service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, sent via electronic mail (if applicable) or telecopied
and confirmed to the parties hereto as follows: If to the Agent: Jefferies LLC, 520 Madison Avenue, New York, NY 10022, Facsimile: (646)
786-5719, Attention: General Counsel, with a copy (which shall not constitute notice) to: Cooley LLP, 55 Hudson Yards, New York, NY 10001,
Attention: Daniel I. Goldberg, Esq., E-mail: dgoldberg@cooley.com. If to the Company: ADC Therapeutics SA, Biopôle, Route de la
Corniche 3B, 1066 Epalinges, Switzerland, Attention: Chief Legal Officer, with a copy (which shall not constitute notice) to: Davis Polk
& Wardwell LLP, 450 Lexington Avenue, New York, NY 10017 , Attention: Deanna Kirkpatrick and Yasin Keshvargar; E-mail: deanna.kirkpatrick@davispolk.com
and 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 (each, a “Related Proceeding”) 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. Each party irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the
laying of venue of any Related Proceeding brought
in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the
extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of
any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted
by law, such immunity in respect of any such suit, action or proceeding.
(h) Appointment
of Agents for Service. The Company hereby irrevocably appoints ADC Therapeutics America, Inc., with offices at 430 Mountain Avenue,
4th Floor, Murray Hill, New Jersey, 07974 as its agent for service of process in any Related Proceeding and agrees that service of process
in any such Related Proceeding may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by
law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such
agent has agreed to act as the Company’s agent for service of process, and the Company agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
(i) Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Agent could purchase United States dollars with such other currency
in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with respect
to any sum due from it to the Agent or any person controlling the Agent shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day following receipt by the Agent or controlling person of any sum in such
other currency, and only to the extent that the Agent or controlling person may in accordance with normal banking procedures purchase
United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the
Agent or controlling person hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify
the Agent or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to
the Agent or controlling person hereunder, the Agent or controlling person agrees to pay to the Company an amount equal to the excess
of the dollars so purchased over the sum originally due to the Agent or controlling person hereunder.
(j) General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic delivery of a portable document
format (PDF) file (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act,
the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com). This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. The Article and Section headings herein are for the convenience of the parties only
and shall not affect the construction or interpretation of this Agreement.
[Signature Page Immediately Follows]
If the foregoing is in accordance
with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms
Very truly yours,
| |
ADC THERAPEUTICS SA |
| |
|
| |
|
| |
By: |
/s/ Ameet Mallik |
| |
|
Name: Ameet Mallik |
| |
|
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 5.1
OPINION OF HOMBURGER AG
August 6, 2024
ADC Therapeutics SA – Registration Statement on Form S-3
Ladies and Gentlemen
We have acted as special Swiss counsel to ADC Therapeutics SA, a stock
corporation incorporated under the laws of Switzerland (the Company), in connection with the filing of (i) a registration statement
on Form S-3 (the Registration Statement), including a prospectus, to be filed with the United States Securities and Exchange
Commission (the SEC) on the date hereof for the purpose of registering under the United States Securities Act of 1933, as amended
(the Securities Act), certain securities, including (a) common shares of the Company, each with a nominal value of CHF 0.08 (the
Common Shares), (b) debt securities of the Company (the Debt Securities), (c) warrants of the Company (the Warrants),
(d) purchase contracts (the Purchase Contracts), (e) units (the Units), and (f) subscription rights (the Rights,
and together with the Debt Securities, the Warrants, the Purchase Contracts and the Units, the Securities) and (ii) a prospectus
supplement (the Prospectus) to be filed with the SEC on the date hereof relating to the offering and sale by the Company of Common
Shares, (i) to be issued out of the capital range of the Company and/or (ii) to be delivered out of treasury shares held by
the Company and previously created in transactions pursuant to or substantially identical to (i), for an aggregate offer price of
up to USD 100,000,000 (the Offered Shares). As such counsel, we have been requested to give our opinion as to certain legal matters
of Swiss law.
Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Documents (as defined below).
This opinion is confined to and given on the basis
of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. This opinion is
also confined to the matters stated herein and the Documents (as defined below), and is not to be read as extending, by implication or
otherwise, to any agreement or other document referred to in any of the Documents or any other matter.
For purposes of this opinion, we have not conducted any due diligence
or similar investigation as to factual circumstances that are or may be referred to in the Documents, and we express no opinion as to
the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For purposes of this opinion, we have only reviewed the following documents
(collectively, the Documents):
| (i) | an electronic copy of the Registration Statement, including the Prospectus; |
| (ii) | an electronic copy of the notarized articles of association (statuts) of the Company dated as of June
13, 2024 (the Articles); and |
| (iii) | an electronic copy of the circular resolution of the Company's board of directors (the Board of
Directors) dated July 26, 2024, approving, among other things, (i) the filing of the Registration Statement and of the
Prospectus with the SEC and (ii) the issuance, offering and sale of the Offered Shares (the Board Resolution). |
No documents have been reviewed
by us in connection with this opinion other than the Documents. Accordingly, we shall limit our opinion to the Documents and their legal
implications under Swiss law.
In this opinion, Swiss legal concepts
are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the
same English terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws
of Switzerland, for purposes of this opinion we have relied on the plain meaning of the words and expressions contained therein without
regard to any import they may have under the relevant governing law.
In rendering the opinions below, we have assumed the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us as
copies (including, without limitation, electronic copies) conform to the original; |
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies were
duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents,
and any electronic signatures on any such document have been affixed thereto by the individual to whom such electronic signature belongs
and such individual has saved and submitted such document as so electronically signed in such a manner so as to prevent removal or other
alteration of such signature; |
| (c) | all signatures appearing on all original documents or copies thereof which we have examined are genuine and
authentic; |
| (d) | each party to the Documents (other than the Company) is a corporation or other legal entity duly organized
and validly existing and in good standing (if applicable) under the laws of the jurisdiction of its incorporation and/or establishment
and none of the parties to the Documents (other than the Company) has passed or, until the issuance of all Common Shares, will have passed
a voluntary winding-up resolution; no petition has been, or, until the issuance of all Common Shares, will be presented or order made
by a court for the winding-up, dissolution, bankruptcy or administration of any party (other than the Company); and no receiver, trustee
in bankruptcy, administrator or similar officer has been or, until the issuance of all Common Shares, will have been appointed in relation
to any of the parties (other than the Company) or any of their assets or revenues; |
| (e) | except as expressly opined upon herein, and to the extent relevant for purposes of this opinion, all information
and confirmations contained in the Documents, and all material statements made to us in connection with the Documents, are true and accurate; |
| (f) | there are no provisions of the laws of any jurisdiction other than Switzerland that may affect the opinions
expressed herein; |
| (g) | the Registration Statement and the Prospectus have been duly filed by the Company; |
| (h) | the Registration Statement, the Prospectus and the Articles are unchanged and correct, complete and up-to-date
and in full force and effect as of the date hereof and no changes have been made which should have been or should be reflected in the
Registration Statement, the Prospectus or the Articles of Association, as the case may be, as of the date hereof; |
| (i) | the Board Resolution (i) has been duly adopted in a meeting duly convened and otherwise in the manner set
forth therein, (ii) has not been amended, and (iii) is in full force and effect; |
| (j) | prior to the issuance, offering and sale of any Common Shares and/or Securities, the Board of Directors of
the Company will have duly authorized the issuance, offering and sale of such Common Shares and/or Securities and will have validly excluded
the pre-emptive rights of the existing shareholders for purposes of the issuance, offering and sale of such Common Shares and/or Securities
as contemplated in the Registration Statement or the Prospectus, as applicable, |
| | and such authorization and exclusion will not have been
amended and will be in full force and effect until the issuance of all such Common Shares and/or Securities; |
| (k) | all exercise notices with respect to Common Shares issued out of the Company's conditional share capital
for financing, acquisitions and other purposes (the Conditional Share Capital) will be duly delivered in accordance with Swiss
law and the underlying contractual arrangements; |
| (l) | the Company has not entered and will not enter into any transaction which could be construed as repayment
of share capital (restitution des versements); and |
| (m) | all authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory Swiss
law applicable to the Company or the Articles, and other requirements for the filing of the Registration Statement and the Prospectus
or for any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken
by the Company in the Registration Statement and the Prospectus have been duly obtained or fulfilled in due time and are and will remain
in full force and effect, and any related conditions to which the parties thereto are subject have been satisfied. |
Based on the foregoing and subject to the qualifications set out below,
we are of the opinion that as of the date hereof the Common Shares, any Common Shares to be issued upon conversion, exercise, exchange
or otherwise pursuant to the terms of any of the Securities, and the Offered Shares, in each case if and when issued and paid for pursuant
to the Articles, the underlying contractual arrangements and Swiss law—in particular after the written conversion or exercise notice
has been given (if applicable) and the issue price for such Common Shares has been paid-in in accordance with the Articles, the underlying
contractual arrangements and Swiss law and upon registration of the corresponding share capital
increase in the Commercial Register of the Canton of Vaud (if applicable)—and if and when such Common Shares have been entered into
the Company's book of uncertificated securities, have been or will be, as applicable, validly issued, fully paid as to their nominal value
and non-assessable.
The above opinions are subject to the following qualifications:
| (a) | The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any
laws other than the laws of Switzerland. Accordingly, we are opining herein as to Swiss law only and we express no opinion with respect
to the applicability or the effect of the laws of any other jurisdiction to or on the matters covered herein. |
| (b) | The exercise of voting rights and rights related thereto with respect to any Common Shares is only permissible
after registration in the Company's share register as a shareholder with voting rights in accordance with the provisions of, and subject
to the limitations provided in, the Articles. |
| (c) | When used in this opinion, the term "non-assessable" means that no further contributions have to
be made by the relevant holder of the shares. |
| (d) | We express no opinion as to whether the Registration Statement and the Prospectus are accurate, true, correct,
complete or not misleading. In particular, and without limitation to the foregoing, we express no opinion on whether the Registration
Statement and the Prospectus provide sufficient information for investors to reach an informed assessment of the Company, any companies
within the Company's consolidation perimeter and the Common Shares. |
| (e) | We express no opinion as to regulatory matters or as to any commercial, accounting, calculating, auditing
or other non-legal matter. |
We have issued this opinion as of the date hereof and we assume no obligation
to advise you of any changes in fact or in law that are made or brought to our attention hereafter.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to our name under the caption "Legal Matters" in the Prospectus.
In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7
of the Securities Act.
This opinion is governed by and shall be construed in accordance with
the laws of Switzerland.
Sincerely yours,
/s/ Lorenzo Togni
Homburger AG
Exhibit 5.2
OPINION OF DAVIS POLK & WARDWELL LLP
August 6, 2024
ADC Therapeutics SA
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
Ladies and Gentlemen:
ADC Therapeutics SA, a société anonyme organized
under the laws of Switzerland (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) common shares, par value CHF 0.08 per share (the “Common Shares”)
of the Company; (b) the Company’s debt securities (the “Debt Securities”), which may be issued pursuant to an
indenture to be entered into between the Company and the trustee to be named therein (the “Trustee”) (the “Indenture”);
(c) warrants of the Company (the “Warrants”), which may be issued pursuant to one or more warrant agreements to be
entered into between the Company and the warrant agent to be named therein (the “Warrant Agent”) (each such warrant
agreement, a “Warrant Agreement”); (d) purchase contracts (the “Purchase Contracts”), which may
be issued pursuant to one or more purchase contract agreements to be entered into between the Company and the purchase contract agent
to be named therein (the “Purchase Contract Agent”) (each such purchase contract agreement, a “Purchase Contract
Agreement”); (e) units (the “Units”), which may be issued pursuant to 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”); and (f) subscription rights (the “Rights”),
which may be issued pursuant to one or more subscription rights agreements to be entered into between the Company and the subscription
agent to be named therein (the “Rights Agent”) (each such subscription rights agreement, a “Rights 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. | 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 Trustee 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, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign
laws affecting creditors’ rights, 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, (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. |
| 2. | 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. | When the Purchase Contract Agreement to be entered into in connection with the issuance of any Purchase Contracts has been duly authorized,
executed and delivered by the Purchase Contract Agent and the Company; the specific terms of the Purchase Contracts have been duly authorized
and established in accordance with the Purchase Contract Agreement; and such Purchase Contracts have been duly authorized, executed, issued
and delivered in accordance with the Purchase Contract Agreement and the applicable underwriting or other agreement against payment therefor,
such Purchase Contracts 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. |
| 4. | 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. |
| 5. | When the Rights Agreement to be entered into in connection with the issuance of any Rights has been duly authorized, executed and
delivered by the Rights Agent and the Company; the specific terms of the Rights have been duly authorized and established in accordance
with the Rights Agreement; and such Rights have been duly authorized, executed, issued and delivered in accordance with the Rights Agreement
and the applicable underwriting or other agreement against payment therefor, such 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. |
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 the Board of Directors of the Company and, to the extent required under Swiss law, the shareholders of the
Company shall have duly authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded;
(ii) the Company is, and shall remain, validly existing as a corporation in good standing (to the extent such concept exists) under the
laws of Switzerland; (iii) the Registration Statement shall have become effective and such effectiveness shall not have been terminated
or rescinded; (iv) the Indenture, the Debt Securities, the Warrant Agreement, the Purchase Contract Agreement, the Unit Agreement and
the Rights 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 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) are within its corporate powers, (b) do not contravene, or constitute
a default under, the articles of association or other constitutive documents of the Company, (c) require no action by or in respect of,
or filing with, any governmental body, agency or official and (d) 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, Purchase Contract Agreement, Unit Agreement and Rights Agreement and any security issued pursuant
to any such agreements 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 federal laws of the United States. Insofar as the foregoing opinion involves
matters governed by the laws of Switzerland, we have relied, without independent inquiry or investigation, on the opinion of Homburger
AG delivered to you today.
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 hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of ADC Therapeutics SA of our report dated March 13, 2024 relating to the consolidated financial statements and
the effectiveness of internal control over financial reporting, which appears in ADC Therapeutics SA’s Annual Report on Form 10-K
for the year ended December 31, 2023. We also consent to the reference to us under the heading “Experts” in such Registration
Statement.
/s/ PricewaterhouseCoopers SA
Lausanne, Switzerland
August 6, 2024
Exhibit 107
Calculation of Filing Fee Tables
S-3
(Form Type)
ADC Therapeutics SA
(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 |
Common
Shares |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Debt |
Debt
Securities |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Other |
Warrants |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Other |
Subscription
Rights |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Other
|
Purchase
Contracts |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Other
|
Units |
Rule
457(o) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Unallocated
(Universal) Shelf |
Unallocated
(Universal) Shelf |
Rule
457(o) |
(1) |
(1) |
$105,718,368 |
0.00014760 |
$15,604.03 |
|
|
|
|
| Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
|
|
| Carry
Forward Securities |
| Carry
Forward Securities |
Equity |
Common
Shares |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Debt |
Debt
Securities |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Other |
Warrants |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Other |
Subscription
Rights |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Other
|
Purchase
Contracts |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Other
|
Units |
Rule
415(a)(6) |
(2) |
|
(2) |
|
|
F-3 |
333-270570 |
March
24, 2024 |
(2) |
| Unallocated
(Universal) Shelf |
Unallocated
(Universal) Shelf |
Rule
415(a)(6) |
(2) |
|
$194,281,632 |
|
|
F-3 |
333-270570 |
March
24, 2024 |
$21,409.84 |
| |
Total
Offering Amounts |
|
$300,000,000 |
|
$15,604.03 |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
$0 |
|
|
|
|
| |
Total
Fee Offsets |
|
|
|
$0 |
|
|
|
|
| |
Net
Fee Due |
|
|
|
$15,604.03 |
|
|
|
|
| (1) | An indeterminate amount of common shares,
debt securities, warrants, subscription rights, purchase contracts and/or units that may
be offered and sold from time to time in one or more offerings, with an aggregate offering
price of up to $300,000,000 (including the unsold securities described in the following footnote). |
| (2) | Pursuant to Rule 415(a)(6) under the Securities
Act, the securities registered pursuant to this registration statement include $194,281,632
of unsold securities (the “unsold securities”) previously registered pursuant
to the Registration Statement on Form F-3 (File No. 333-270570) (as amended, the “prior
registration statement”). The filing fee associated with the registration of the offer
and sale of the unsold securities is hereby carried forward to be applied to the unsold securities
registered hereunder, and no additional filing fee is due with respect to the unsold securities
in connection with the filing of this registration statement. The registrant is also registering
new securities under this registration statement with an aggregate initial offering price
of $105,718,368 (the “new securities”), which aggregate offering price is not
specified as to each class of securities. A filing fee of $15,604.03 with respect to the
new securities is being paid in connection with the filing of this registration statement.
To the extent that, after the filing date hereof and prior to the effectiveness of this registration
statement, the registrant sells any unsold securities pursuant to the prior registration
statement, the registrant will identify in a pre-effective amendment to this registration
statement the updated number of unsold securities from the prior registration statement to
be included in this registration statement pursuant to Rule 415(a)(6) and the updated amount
of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6),
the offering of securities under the prior registration statement will be deemed terminated
as of the date of effectiveness of this registration statement. |
ADC Therapeutics (NYSE:ADCT)
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