vaxxs3082023
 
 
 
 
As filed with the Securities and Exchange Commission
 
on August 9, 2023.
Registration No. 333-
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
 
UNDER THE SECURITIES ACT OF 1933
VAXXINITY,
 
INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
86-2083865
(State or Other Jurisdiction of Incorporation or Organization)
(I.R.S. Employer Identification Number)
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
(Address, Including Zip Code, and Telephone Number,
 
Including Area Code, of Registrant’s Principal Executive Offices)
Mei Mei Hu
Chief Executive Officer
Vaxxinity, Inc.
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
(Name, Address, Including Zip Code, and Telephone Number,
 
Including Area Code, of Agent For Service)
Copy to:
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Approximate date of commencement of proposed sale
 
to the public
: From time to time after this Registration Statement becomes
 
effective.
If the only securities being registered on this Form are
 
being offered pursuant to dividend or interest reinvestment
 
plans, please check the following
box.
If any of the securities being registered on this Form
 
are to be offered on a delayed or continuous
 
basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection
 
with dividend or interest reinvestment plans, check the
 
following box.
If this Form is filed to register additional securities for
 
an offering pursuant to Rule 462(b) under the Securities
 
Act, please check the following box and
list the Securities Act registration statement number of
 
the earlier effective registration statement for the
 
same offering.
If this Form is a post-effective amendment filed
 
pursuant to Rule 462(c) under the Securities Act,
 
check the following box and list the Securities Act
registration statement number of the earlier effective
 
registration statement for the same offering.
If this Form is a registration statement pursuant to General
 
Instruction I.D. or a post-effective amendment thereto
 
that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the
 
Securities Act, check the following box.
If this Form is a post-effective amendment to a registration
 
statement filed pursuant to General Instruction I.D.
 
filed to register additional securities or
additional classes of securities pursuant to Rule 413(b)
 
under the Securities Act, check the following box.
Indicate by check mark whether the registrant is a large
 
accelerated filer, an accelerated
 
filer, a non-accelerated filer,
 
a smaller reporting company or
an emerging growth company. See
 
the definitions of “large accelerated filer,”
 
“accelerated filer,” “smaller reporting
 
company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
 
Accelerated filer
Non-accelerated filer
 
Smaller reporting company
 
Emerging growth company
If an emerging growth company,
 
indicate by check mark if the registrant has elected
 
not to use the extended transition period for complying
 
with any
new or revised financial accounting standards provided
 
pursuant to Section 7(a)(2)(B) of the Securities Act.
The registrant hereby amends this registration
 
statement on such date or dates as may
 
be necessary to delay its effective
date until the registrant shall file a further amendment
 
which specifically states that this registration statement
 
shall
thereafter become effective in accordance with
 
Section 8(a) of the Securities Act, or until
 
the registration statement shall
become effective on such date as the Securities
 
and Exchange Commission, acting pursuant to
 
said Section 8(a), may
determine.
EXPLANATORY
 
NOTE
Vaxxinity,
 
Inc. (the “Company”) is filing this registration statement,
 
which contains two prospectuses:
 
a base prospectus that covers the offering and sale
 
of up to $300,000,000 of the Company’s
Class A common stock, preferred stock, debt securities,
 
warrants, subscription rights and units;
and
 
a sales agreement prospectus supplement that covers the offering
 
and sale of up to
$100,000,000 of the Company’s Class A common
 
stock that may be sold under the Open Market
Sale Agreement
SM
 
(the “sales agreement”) between the Company and
 
Jefferies LLC dated
August 9, 2023.
The base prospectus immediately follows this explanatory
 
note. The sales agreement prospectus
supplement immediately follows the base prospectus.
 
The Class A common stock that may be offered
and sold pursuant to the sales agreement prospectus supplement
 
is included in the $300,000,000 of
securities that may be offered and sold by the Company
 
pursuant to the base prospectus. Any portion of
the $100,000,000 included in the sales agreement prospectus
 
supplement that remains unsold pursuant
to the sales agreement will be available for sale in other
 
offerings pursuant to the base prospectus and a
corresponding prospectus supplement.
vaxxs3082023p3i0
The information contained in this prospectus is not complete
 
and may be changed. These
securities may not be sold until the registration statement
 
filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to
 
sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction
 
where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED
 
August 9, 2023
PROSPECTUS
$300,000,000
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
We may offer from time to time, in one
 
or more offerings, up to $300,000,000 of any
 
combination of the
following securities: Class A common stock, preferred stock,
 
debt securities, warrants, subscription rights
and units (collectively,
 
the “securities”). We may offer and
 
sell these securities at times, in amounts, at
prices and on terms to be determined at or prior to the
 
time of each offering. The specific terms of these
securities and information regarding the offering
 
in which these securities will be offered will
 
be provided
in supplements to this prospectus. The prospectus supplements
 
may also add, update or change the
information contained in this prospectus. You
 
should read this prospectus and any applicable
 
prospectus
supplement carefully before you invest.
Our Class A common stock is listed on the Nasdaq Global
 
Market (“Nasdaq”) under the symbol “VAXX
 
.”
As of the date of this prospectus, we are an “emerging
 
growth company” as defined under the U.S.
federal securities laws and, as such, we have elected to comply
 
with certain reduced public company
reporting requirements for this prospectus and the documents
 
incorporated by reference in this
prospectus.
Investing in our securities involves certain risks. See the
 
“Risk Factors” section beginning on
page 4 of this prospectus,
 
in any applicable prospectus supplement and in our
 
Securities and
Exchange Commission (“SEC”) filings that are incorporated
 
by reference in this prospectus.
Neither the Securities and Exchange Commission nor
 
any state securities commission has
approved or disapproved these securities, or determined
 
if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is
 
, 2023.
 
TABLE OF CONTENTS
Page
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This prospectus is part of a registration statement that
 
we filed with the SEC utilizing a “shelf” registration
process. Under this shelf registration process, we may
 
offer from time to time, in one or more offerings,
 
up
to $300,000,000 of the securities described in this prospectus.
 
This prospectus provides you with a
general description of the securities that we may offer
 
.
 
Each time we offer and sell securities, we will
provide a prospectus supplement accompanied by this
 
prospectus. The prospectus supplements will
contain the specific terms of the securities being offered
 
and information regarding the offering in which
the securities are offered. The prospectus supplements
 
may also add, update or change the information
contained in this prospectus. You
 
should read both this prospectus and any prospectus
 
supplement
together with the additional information described under
 
the heading “Where You
 
Can Find More
Information.”
The information contained in this prospectus, any applicable
 
prospectus supplement, any related free
writing prospectus and any document incorporated by
 
reference in this prospectus is accurate only as
 
of
their respective dates, regardless of the time of delivery
 
of this prospectus or the sale of any securities.
Our business, financial condition, results of operations
 
and prospects may have changed materially since
those dates.
We have not authorized anyone to provide you
 
with information that is different from that contained
 
in this
prospectus, any amendment or supplement to this prospectus,
 
or any free writing prospectus that we may
authorize to be delivered or made available to you. We
 
take no responsibility for, and
 
provide no
assurance as to the reliability of, any other information
 
that others may give you. This prospectus does
not constitute an offer to sell or the solicitation of
 
an offer to buy any securities other than the
 
securities
described in this prospectus or an offer to sell or the
 
solicitation of an offer to buy such securities
 
in any
circumstances in which such offer or solicitation
 
is unlawful.
Unless otherwise indicated or the context otherwise requires,
 
all references in this prospectus to
“Vaxxinity,” the “Company,”
 
“we,” “us” and “our” refer to Vaxxinity,
 
Inc. and its consolidated subsidiaries.
1
VAXXINITY,
 
INC.
We are a purpose-driven biotechnology company committed
 
to democratizing healthcare across the
globe. Our vision is to disrupt the existing treatment paradigm
 
for chronic diseases, increasingly
dominated by drugs, particularly monoclonal antibodies
 
(“mAbs”), which suffer from prohibitive costs and
cumbersome administration. We believe our synthetic
 
peptide vaccine platform (“Vaxxine
 
Platform”) has
the potential to enable a new class of therapeutics
 
that will improve the quality and convenience of care,
reduce costs and increase access to treatments for a
 
wide range of indications. Our Vaxxine
 
Platform is
designed to harness the immune system to convert the body
 
into its own “drug factory,”
 
stimulating the
production of antibodies with a therapeutic or protective
 
effect. While traditional vaccines have been
 
able
to leverage this approach against infectious diseases, they have
 
historically been unable to resolve key
challenges in the fight against chronic diseases. We
 
believe our Vaxxine
 
Platform has the potential to
overcome these challenges and has the potential to bring
 
the efficiency of vaccines to a whole new
 
class
of medical conditions. Specifically,
 
our technology is designed to use synthetic peptides to mimic
 
and
optimally combine biological epitopes in order to selectively
 
activate the immune system, producing highly
specific antibodies against only the desired targets, including
 
self-antigens, making possible the safe and
effective treatment of chronic diseases by vaccines.
 
The modular and synthetic nature of our Vaxxine
Platform generally provides significant speed and efficiency
 
in candidate development and has generated
multiple product candidates that we are designing to
 
have safety and efficacy equal to or greater than
 
the
standard-of-care treatments for many chronic diseases,
 
with more convenient administration and
meaningfully lower costs. Our current pipeline consists of five
 
chronic disease product candidates from
early to late-stage development across multiple therapeutic
 
areas, including Alzheimer’s Disease (“AD”),
Parkinson’s Disease (“PD”), migraine and hypercholesterolemia.
 
Additionally, we
 
believe our Vaxxine
Platform may be used to disrupt the treatment paradigm
 
for a wide range of other chronic diseases,
including any that are or could potentially be successfully
 
treated by mAbs. We also will opportunistically
pursue infectious disease treatments. When the COVID
 
-19 pandemic struck the world in March 2020, we
quickly reallocated resources to develop a vaccine candidate.
 
We have assembled an industry-leading
team with extensive experience developing and commercializing
 
successful drugs that is committed to
realizing our mission of democratizing healthcare.
 
Our principal executive offices are located at 505
 
Odyssey Way,
 
Merritt Island, Florida 32953, and our
telephone number is (254) 244-5739. Our website address
 
is
www.vaxxinity.com
. Information on, or
accessible through, our website is not part of this prospectus,
 
nor is such content incorporated by
reference in this prospectus,
 
and should not be relied upon in determining whether
 
to make an investment
in our securities.
 
2
SPECIAL NOTE ON FORWARD
 
-LOOKING STATEMENTS
This prospectus, including the documents incorporated
 
by reference in this prospectus,
 
contains forward-
looking statements within the meaning of Section 21E of the
 
Exchange Act and Section 27A of the
Securities Act of 1933, as amended (the “Securities Act”)
 
.
 
Forward-looking statements are neither
historical facts nor assurances of future performance. Instead,
 
they are based on our current beliefs,
expectations and assumptions regarding the future of
 
our business, future plans and strategies and other
future conditions. In some cases, you can identify forward
 
-looking statements because they contain
words such as “anticipate,” “believe,” “estimate,” “expect,”
 
“intend,” “may,” “predict,”
 
“project,” “target,”
“potential,” “seek,” “will,” “would,” “could,” “should,” “continue,”
 
“contemplate,” “plan,” other words and
terms of similar meaning and the negative
 
of these words or similar terms.
All forward-looking statements speak only as of the date
 
on which they are made. Forward-looking
statements are subject to known and unknown risks
 
and uncertainties, many of which may be beyond our
control. We caution you that forward-looking statements
 
are not guarantees of future performance or
outcomes and that actual performance and outcomes
 
may differ materially from those made in or
suggested by the forward-looking statements. Factors
 
that could cause actual results and outcomes to
differ materially from those reflected in forward-looking
 
statements include, among others, the following:
the prospects of our product candidates, including the
 
progress, number, scope, cost,
 
results and timing
of data from our development activities, preclinical trials
 
and clinical trials for our product candidates or
programs, such as the target indication(s) for development or approval,
 
the size, design, population,
conduct, cost, objective or endpoints of any clinical trial,
 
or the timing for initiation or completion of or
availability of results from any clinical trial, for submission,
 
review or approval of any regulatory filing, or
for meeting with regulatory authorities; the potential benefits
 
that may be derived from any of our product
candidates; the timing of and our ability to obtain and maintain regulatory
 
approval for our existing product
candidates, any product candidates that we may develop, and
 
any related restrictions, limitations, or
warnings in the label of any approved product candidates;
 
our ability to develop and commercialize new
products and product candidates; our ability to leverage our
 
Vaxxine Platform;
 
the rate and degree of
market acceptance of our products and product candidates;
 
estimates of our addressable market and
market growth, and expectations about market trends;
 
our future operations, financial position, revenue,
costs, expenses, uses of cash, capital requirements, our needs
 
for additional financing or the period for
which our existing cash resources will be sufficient
 
to meet our operating requirements; our ability to
comply with legal and regulatory requirements relating to privacy,
 
tax, anti-corruption and other applicable
laws; our ability to hire and retain key personnel and to
 
manage our future growth effectively; our
 
ability to
access capital on acceptable terms in a rising interest rate and
 
tighter credit environment; competitive
companies and technologies within our industry and our
 
ability to compete; our and our collaborators’,
including United Biomedical’s (“UBI”), ability and willingness
 
to obtain, maintain, defend and enforce our
intellectual property protection for our proprietary and collaborative
 
product candidates, and the scope of
such protection; the performance of third-party suppliers
 
and manufacturers and our ability to find
additional suppliers and manufacturers and obtain alternative
 
sources of raw materials; our ability and the
potential to successfully manufacture our product candidates
 
for pre-clinical use, for clinical trials and, if
approved, on a larger scale for commercial use; the ability
 
and willingness of our third-party collaborators,
including UBI, to continue research and development activities
 
relating to our product candidates and our
ability to attract additional collaborators with development, regulatory
 
and commercialization expertise;
general economic, political, demographic and business conditions
 
in the United States, Taiwan
 
and other
jurisdictions where we conduct business or clinical trials;
 
the potential effects of government regulation,
including regulatory developments in the United States and other
 
jurisdictions; ability to obtain additional
financing in future offerings or otherwise; the
 
effects of the Russia-Ukraine conflict and
 
the COVID-19
pandemic on business operations and the initiation, development
 
and operation of our clinical trials,
including patient enrollment of our clinical trials; and our
 
strategies, prospects, plans, expectations,
forecasts or objectives.
These factors should not be construed as exhaustive and should
 
be read in conjunction with the other
cautionary statements and information included in this prospectus,
 
including our most recent Annual
Report on Form 10-K and subsequent Quarterly Reports
 
on Form 10-Q and Current Reports on Form
8-K. New risk factors emerge from time to time, and it
 
is not possible to predict all such risk factors, nor
3
can we assess the impact of all such risk factors on our
 
business or the extent to which any factor or
combination of factors may cause actual results to differ
 
materially from those contained in any forward-
looking statement. Undue reliance should not be placed
 
on these forward-looking statements. We do not
undertake any obligation to make any revisions to these
 
forward-looking statements to reflect events or
circumstances after the date on which such statements
 
were made or to reflect the occurrence of
unanticipated events, except as required by law.
 
 
4
RISK FACTORS
Investing in our securities involves risk. Before making
 
a decision to invest in our securities, you should
carefully consider the risks described under “Risk Factors”
 
in the applicable prospectus supplement and
in our most recent Annual Report on Form 10-K, and
 
any updates to those risk factors in our subsequent
Quarterly Reports on Form 10-Q and Current Reports
 
on Form 8-K, together with all of the other
information appearing or incorporated by reference in this prospectus,
 
in light of your particular
investment objectives and financial circumstances. Although
 
we discuss key risks in our discussion of risk
factors, new risks may emerge in the future, which may
 
prove to be significant. We cannot predict future
risks or estimate the extent to which they may affect
 
our business, results of operations, financial
condition and prospects.
 
5
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the
 
net proceeds from our sale of securities will
be used for general corporate purposes, including working
 
capital, acquisitions, retirement of debt and
other business opportunities.
 
6
DESCRIPTION OF CAPITAL
 
STOCK
The following summary describes the material terms of our capital
 
stock, does not purport to be complete
and is qualified in its entirety by reference to our amended
 
and restated certificate of incorporation (our
“Charter”) and our amended and restated bylaws (our “Bylaws”),
 
copies of which have been filed as
exhibits to the registration statement of which this prospectus forms
 
a part, and applicable provisions of
the Delaware General Corporation Law (the “DGCL”).
Authorized Capital Stock
 
Our authorized capital stock consists of 1,000,000,000
 
shares of Class A common stock, par value
$0.0001 per share; 100,000,000 shares of Class B common
 
stock, par value $0.0001 per share; and
50,000,000 shares of preferred stock, par value $0.0001 per
 
share.
Common Stock
We have two classes of common stock: Class
 
A common stock and Class B common stock. Holders of
Class A common stock and Class B common stock have
 
identical rights, except with respect to voting and
conversion.
 
Voting Rights
. Except as otherwise expressly provided in our Charter
 
or Bylaws or required by
applicable law and subject to the rights of any preferred stock,
 
holders of Class A common stock are
entitled to one vote per share on all matters submitted
 
to a vote of stockholders and holders of Class B
common stock are entitled to ten votes per share on all
 
matters submitted to a vote of stockholders.
 
Our
common stockholders are not entitled to cumulative voting
 
in the election of directors. Unless a different
vote is required by applicable law or specifically required
 
by our Charter or Bylaws, if a quorum exists at
any meeting of stockholders, stockholders shall have approved
 
any matter (other than as described
below) if such matter is approved by the affirmative
 
vote of the majority of voting power of share capital
present in person or represented by proxy and entitled
 
to vote on such matter.
 
Subject to the rights of any
preferred stock to elect directors, if a quorum exists at
 
any meeting of stockholders, stockholders shall
have approved the election of a director if such director
 
is elected by a plurality of the votes cast.
 
Holders
of Class A common stock and Class B common stock
 
vote together as a single class on all matters
submitted to a vote of stockholders, except (i) if we were to seek
 
to amend our Charter to increase or
decrease the par value of a class of our capital stock,
 
then that class would be required to vote separately
to approve the proposed amendment and (ii) if we were
 
to seek to amend our Charter in a manner that
alters or changes the powers, preferences or special rights
 
of a class of our capital stock in a manner that
affected its holders adversely,
 
then that class would be required to vote separately
 
to approve the
proposed amendment.
 
Dividend Rights
. Subject to preferences of any preferred stock,
 
holders of common stock are entitled to
receive ratably such dividends as may be declared by our
 
board of directors out of funds legally available
therefor if our board of directors, in its discretion, determines
 
to issue dividends and only then at the times
and in the amounts that our board of directors may determine.
Rights upon Liquidation
. Upon liquidation, dissolution or winding-up of the Company,
 
holders of
common stock are entitled to receive their ratable share
 
of the net assets of the Company available after
payment of all debts and other liabilities, subject to the
 
prior preferential rights and payment of liquidation
preferences, if any, of
 
any preferred stock.
Conversion Rights
. Each share of Class B common stock is convertible
 
at any time at the option of the
holder into one share of Class A common stock. In addition,
 
each share of Class B common stock will
automatically convert into one share of Class A common
 
stock upon any transfer,
 
whether or not for value
and whether voluntary or involuntary or by operation of
 
law, except for transfers to
 
trusts solely for the
benefit of the stockholder and certain related entities, transfers
 
to partnerships, corporations and other
entities exclusively owned by the stockholder or certain
 
related entities, transfers to family members of the
stockholder and transfers between certain stockholders. Holders
 
of Class A common stock have no
conversion rights.
7
Other Rights
. Holders of common stock have no preemptive, subscription
 
or redemption rights. There
are no redemption or sinking fund provisions applicable
 
to our common stock.
Preferred Stock
Our board of directors has the authority,
 
subject to limitations imposed by Delaware law
 
or Nasdaq listing
standards, without any further vote or action by our stockholders,
 
to issue preferred stock in one or more
series and to fix the designations, powers, preferences,
 
limitations and rights of each series, including
dividend rates, conversion rights, voting rights, terms of
 
redemption, liquidation preferences, sinking fund
terms and the number of shares constituting each series.
 
Satisfaction of any dividend preferences of
outstanding preferred stock would reduce the amount
 
of funds available for the payment of dividends on
Class A common stock. Holders of preferred stock may
 
be entitled to receive a preference payment in the
event of our liquidation, dissolution or winding-up before any
 
payment is made to the holders of Class A
common stock. Our board of directors may authorize the issuance
 
of preferred stock with voting or
conversion rights that could adversely affect the
 
voting power or other rights of the holders of Class
 
A
common stock.
 
The issuance of preferred stock, while providing flexibility in
 
connection with possible acquisitions and
other corporate purposes, could, among other things, have
 
the effect of making it more difficult
 
for a third
party to acquire, or could discourage a third party from
 
seeking to acquire, a majority of our outstanding
voting stock, and may adversely affect the market
 
price of Class A common stock and the voting and
other rights of the holders of Class A common stock.
 
See “—Certain Anti-Takeover
 
Provisions of our
Charter, our Bylaws and Delaware
 
Law.”
When we offer to sell a particular series of preferred
 
stock, we will describe the specific terms of the
securities in a supplement to this prospectus. The preferred
 
stock will be issued under a certificate of
designations relating to each series of preferred stock
 
and is also subject to our Charter.
Voting Agreement
Our co-founders (Mei Mei Hu and Louis Reese), one of their affiliates
 
and United Biomedical, Inc.
(collectively our “principal stockholders”) entered into a
 
voting agreement on October 1, 2021 (the “Voting
Agreement”). We are not a party to the Voting
 
Agreement. The Voting Agreement
 
provides the
proxyholder, Ms. Hu, with the
 
authority (and irrevocable proxies) to direct the vote
 
and vote the shares of
capital stock held by the principal stockholders at her discretion
 
on all matters to be voted upon by
stockholders. The Voting Agreement
 
does not restrict any of the principal stockholders from transferring
any shares of our capital stock and, if any such shares
 
of capital stock are transferred, there is no
obligation for the transferee to join the Voting
 
Agreement (unless the transferee is an affiliate or family
member (or an entity or trust whose beneficial owner
 
or primary beneficiary is a family member) of one of
the parties to the Voting Agreement).
 
Mr. Reese will replace Ms.
 
Hu as the proxyholder under the Voting
 
Agreement upon the earliest of (i) Ms.
Hu’s death, (ii) a determination by a court of competent
 
jurisdiction in a final non-appealable order that
Ms. Hu is permanently and totally disabled and unable to engage
 
in any substantial gainful activity due to
a medically determinable physical or mental impairment that can
 
be expected to result in death within 12
months or which has lasted or can be expected to last
 
for a continuous period of at least 12 months and
(iii) six months after the later of Ms. Hu ceasing to be (x)
 
Chief Executive Officer and (y) Actively Engaged
(as defined below) (the “Replacement Date”);
provided
 
that the Replacement Date will be the date on
which Ms. Hu ceases to be Actively Engaged if Ms. Hu
 
is not then Chief Executive Officer and Ms. Hu
ceases to be Actively Engaged pursuant to clause (B)
 
of the definition of Actively Engaged below.
 
For
purposes of the Voting Agreement,
 
“Actively Engaged” means, on the date of determination,
 
Ms. Hu (A) is
then a director of the Company and (B) has not sold, or
 
otherwise disposed for pecuniary gain, shares of
Class B common stock in excess of 65% of the Class
 
B common stock she held on the date of the Voting
Agreement.
 
The Voting Agreement will terminate
 
upon the earliest to occur of the following: (i) the liquidation,
dissolution or winding up of the Company; (ii) the execution
 
by the Company of a general assignment for
8
the benefit of creditors or the appointment of a receiver
 
or trustee to take possession of the property and
assets of the Company; (iii) the unilateral decision of the
 
then current proxyholder (in such person’s sole
discretion) to terminate the Voting
 
Agreement, subject to a 30-day notice period; (iv)
 
on the Replacement
Date, if Mr. Reese is then (x)
 
deceased, (y) determined by a court of competent jurisdiction
 
in a final non-
appealable order to be permanently and totally disabled and
 
unable to engage in any substantial gainful
activity due to a medically determinable physical or mental
 
impairment that can be expected to result in
death within 12 months or which has lasted or can be expected
 
to last for a continuous period of at least
12 months or (z) not a director of the Company; or (v) after
 
the Replacement Date, upon the earliest to
occur of (x) Mr. Reese’s
 
death, (y) a determination by a court of competent jurisdiction
 
in a final non-
appealable order that Mr. Reese
 
is permanently and totally disabled and unable to
 
engage in any
substantial gainful activity due to a medically determinable
 
physical or mental impairment that can be
expected to result in death within 12 months or which
 
has lasted or can be expected to last for a
continuous period of at least 12 months or (z) Mr.
 
Reese ceasing to be director of the Company.
 
The foregoing summary does not purport to be complete
 
and is qualified in its entirety by reference to the
Voting Agreement,
 
a copy of which has
 
been filed as an exhibit to our most recent Annual Report
 
on
Form 10-K.
Certain Anti-Takeover
 
Provisions of our Charter, our
 
Bylaws and Delaware Law
Certain provisions of our Charter,
 
our Bylaws and the DGCL may discourage or make more
 
difficult a
takeover attempt that a stockholder might consider to
 
be in his, her or its best interest. These provisions
may also adversely affect the prevailing market
 
price for our Class A common stock. We believe
 
that the
benefits of increased protection give us the potential ability to
 
negotiate with the proponent of an
unsolicited proposal to acquire or restructure us, which
 
may result in an improvement of the terms of any
such proposal in favor of our stockholders, and outweigh
 
any potential disadvantage of discouraging
those proposals.
Authorized but Unissued Shares of Capital Stock
Our authorized but unissued common stock and preferred
 
stock are available for future issuance without
stockholder approval, subject to the applicable provisions
 
of the DGCL and Nasdaq listing standards.
These additional shares may be used for a variety of corporate
 
purposes, including future public offerings
to raise additional capital, corporate acquisitions and employee
 
benefit plans. One of the effects of the
existence of authorized but unissued common stock or preferred stock
 
may be to enable our board of
directors to issue shares to persons friendly to current
 
management, which issuance could render more
difficult or discourage an attempt to obtain control
 
of the Company by means of a merger,
 
tender offer,
proxy contest or otherwise, and thereby protect the continuity
 
of our management and possibly deprive
our stockholders of opportunities to sell their Class A common
 
stock at a price higher than the prevailing
market price.
Board Vacancies and Board Size
Our Charter provides that, subject to the rights of any
 
preferred stock, any vacancies, including any newly
created directorships, on our board of directors will be
 
filled by the affirmative vote of a majority
 
of the
remaining directors then in office, even if such directors
 
constitute less than a quorum, or by a sole
remaining director. In addition, the
 
number of directors constituting our board of directors
 
is exclusively to
be set by a resolution adopted by a majority vote of our
 
entire board of directors. These provisions
prevent a stockholder from increasing the size of our board
 
of directors and then gaining control of our
board of directors by filling the resulting vacancies with
 
its own nominees. This makes it more difficult to
change the composition of our board of directors and promotes
 
continuity of management.
No Cumulative Voting
Under the DGCL, stockholders are not entitled to cumulate
 
votes in the election of directors unless a
corporation’s certificate of incorporation provides otherwise.
 
Our Charter does not provide for cumulative
voting.
9
Stockholder Action by Written Consent and
 
Special Meetings of Stockholders
Our Charter and Bylaws provide that our stockholders
 
may take action by written consent so long as the
Voting Agreement is in effect
 
and our principal stockholders hold a majority of the
 
voting power of then-
outstanding shares of our capital stock. Our Charter and Bylaws
 
further provide that special meetings of
our stockholders may be called only by the chairperson
 
of our board of directors, the lead independent
director, our board of directors
 
pursuant to a written resolution adopted by the affirmative
 
vote of the
majority of the total numbers of directors assuming no
 
vacancies or, so long as the
 
Voting Agreement is
in effect and our principal stockholders hold a majority
 
of the voting power of then-outstanding shares of
our capital stock, the corporate secretary upon the written
 
request of holders of a majority of the voting
power of all then-outstanding shares of capital stock.
 
These provisions may delay the ability of our
stockholders to force consideration of a proposal or for
 
stockholders controlling a majority of our capital
stock to take any action, including the removal of directors.
Advance Notice Requirements for Stockholder Proposals
 
and Director Nominations
Our Bylaws establish advance notice procedures with
 
respect to stockholder proposals and the
nomination of candidates for election as directors at our
 
annual meeting of stockholders, and also specify
certain procedural requirements regarding the form, content
 
and timing of such notice. These provisions
might preclude our stockholders from bringing matters
 
before our annual meeting
 
of stockholders or from
making nominations for directors at our annual meeting of stockholders
 
if the proper procedures are not
followed. We expect that these provisions may
 
also discourage or deter a potential acquirer from
conducting a solicitation of proxies to elect the acquirer’s own slate
 
of directors or otherwise attempting to
obtain control of the Company.
Amendments to Our Charter and Bylaws
The DGCL provides generally that the affirmative
 
vote of a majority of the outstanding shares entitled to
vote thereon, voting together as a single class, is required to
 
amend a corporation’s certificate of
incorporation or bylaws, unless the corporation’s certificate
 
of incorporation requires a greater
percentage. Our Charter provides that at any time the
 
Voting Agreement is not in
 
effect or our principal
stockholders do not hold a majority of the voting power
 
of then-outstanding shares of our capital stock,
certain specified provisions in our Charter,
 
including provisions relating to the size of the board,
classification of the board, removal of directors, special meetings,
 
actions by written consent and
cumulative voting, may be amended, altered, rescinded
 
or repealed only by the affirmative vote of the
holders of at least 66 2/3% in voting power of all the then outstanding
 
shares of our capital stock entitled
to vote thereon, voting together as a single class. Our
 
Charter provides that our board of directors is
expressly authorized to amend, alter,
 
rescind or repeal, in whole or in part, or add
 
to, our Bylaws without
a stockholder vote in any manner not inconsistent with the
 
laws of the State of Delaware or our Charter.
Our Charter provides that at any time the Voting
 
Agreement is not in effect or our principal
 
stockholders
do not hold a majority of the voting power of then-outstanding
 
shares of our capital stock, any
amendment, alteration, rescission or repeal, in whole or in
 
part, of, or addition to, our Bylaws by our
stockholders requires the affirmative vote of
 
the holders of at least 66 2/3% in voting power of all the
 
then-
outstanding shares of our capital stock entitled to vote thereon,
 
voting together as a single class.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of
 
the DGCL. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a “business
 
combination” with an “interested stockholder” for
three years following the date that such stockholder became
 
an interested stockholder,
 
unless:
 
 
before such date, the board of directors of the corporation approved
 
either the business
combination or the transaction that resulted in the stockholder
 
becoming an interested
stockholder;
 
upon closing of the transaction that resulted in the stockholder
 
becoming an interested
stockholder, the interested
 
stockholder owned at least 85% of the voting stock of the
 
corporation
10
outstanding at the time the transaction began, excluding
 
for purposes of determining the voting
stock outstanding (but not the outstanding voting stock
 
owned by the interested stockholder)
those shares owned by (1) persons who are directors and
 
also officers and (2) employee stock
plans in which employee participants do not have the right to
 
determine confidentially whether
shares held subject to the plan will be tendered in a tender
 
or exchange offer; or
 
on or after such date, the business combination is approved
 
by the board of directors and
authorized at an annual or special meeting of the stockholders,
 
and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding
 
voting stock that is not owned by the
interested stockholder.
In general, Section 203 defines a “business combination”
 
to include, among other things, mergers, asset
and stock sales and other transactions resulting in a financial
 
benefit to an interested stockholder.
 
An
“interested stockholder” is a person who, together with its affiliates
 
and associates, owns, or did own
within three years prior to the determination of interested
 
stockholder status, 15% or more of the
corporation’s outstanding voting stock.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, our stockholders
 
will have appraisal rights in connection with a
merger or consolidation in which we are a constituent entity.
 
Pursuant to the DGCL, stockholders who
properly demand and perfect appraisal rights in connection with
 
such merger or consolidation will have
the right to receive payment of the fair value of their shares
 
as determined by the Delaware Court of
Chancery, if any,
 
on the amount determined to be the fair value, from the
 
effective time of the merger or
consolidation through the date of payment of the judgment.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring an action
 
in our name to procure a judgment in our
favor, also known as a derivative
 
action, provided that the stockholder bringing the
 
action is a holder of
our shares at the time of the transaction to which the action
 
relates or such stockholder’s stock thereafter
devolved by operation of law.
 
To
 
bring such an action, the stockholder must otherwise
 
comply with
Delaware law regarding derivative actions.
Exclusive Forum
Our Charter requires, to the fullest extent permitted by law,
 
that (1) any derivative action or proceeding
brought on behalf of the Company,
 
(2) any action asserting a claim of breach of a
 
fiduciary duty owed by
any of our directors, officers, other employees
 
or our stockholders to us or our stockholders, (3) any
action asserting a claim against us arising pursuant to
 
any provision of the DGCL, our Charter or our
Bylaws, or as to which the DGCL confers jurisdiction on
 
the Court of Chancery of the State of Delaware,
(4) any action to interpret, apply,
 
enforce or determine the validity of our Charter or Bylaws
 
and (5) any
action asserting a claim against us that is governed by
 
the internal affairs doctrine, in each case, may be
brought only in the Court of Chancery of the State of Delaware
 
(or, if the Court of
 
Chancery of the State of
Delaware does not have jurisdiction, the United States
 
District Court for the District of Delaware).
 
This
provision will not apply to suits brought to enforce any
 
duty or liability created by the Securities Act, the
Exchange Act or any other claim for which there is exclusive
 
federal or concurrent federal and state
jurisdiction.
Our Charter also provides that the federal district courts
 
of the United States of America will be the
exclusive forum for the resolution of any complaint asserting
 
a cause of action against us or any of our
directors, officers, employees or agents and arising
 
under the Securities Act. However,
 
Section 22 of the
Securities Act provides that federal and state courts have
 
concurrent jurisdiction over lawsuits brought
pursuant to the Securities Act or the rules and regulations
 
thereunder. To
 
the extent the exclusive forum
provision restricts the courts in which claims arising under
 
the Securities Act may be brought, there is
uncertainty as to whether a court would enforce such a
 
provision. Our Charter also provides that any
person or entity purchasing or otherwise acquiring any interest
 
in shares of our capital stock will be
11
deemed to have notice of and to have consented to the foregoing
 
provision;
provided
,
 
however
, that
investors cannot waive compliance with the federal securities
 
laws and the rules and regulations
thereunder.
 
We recognize that the forum selection clause in our
 
Charter may impose additional litigation costs on
stockholders in pursuing any such claims, particularly
 
if the stockholders do not reside in or near the State
of Delaware. Additionally,
 
the forum selection clause in our Charter may limit
 
our stockholders’ ability to
bring a claim in a forum that they find favorable for disputes with
 
us or our directors, officers, employees
or agents, which may discourage such lawsuits against
 
us and our directors, officers, employees and
agents even though an action, if successful, might benefit
 
our stockholders. The Court of Chancery of the
State of Delaware may also reach different judgments
 
or results than would other courts, including courts
where a stockholder considering an action may be located or would
 
otherwise choose to bring the action,
and such judgments may be more or less favorable to
 
us than our stockholders.
Limitation of Liability and Indemnification of Directors and
 
Officers
Our Charter includes provisions that limit the personal liability
 
of our directors for monetary damages for
breach of their fiduciary duties as directors, except to the extent
 
that such limitation is not permitted under
the DGCL. Such limitation shall not apply,
 
except to the extent permitted by the DGCL, to (1)
 
any breach
of a director’s duty of loyalty to us or our stockholders, (2) acts
 
or omissions not in good faith or that
involve intentional misconduct or a knowing violation of
 
law, (3) any unlawful payment
 
of a dividend or
unlawful stock repurchase or redemption, as provided
 
in Section 174 of the DGCL or (4) any transaction
from which a director derived an improper personal benefit. These
 
provisions will have no effect on the
availability of equitable remedies such as an injunction
 
or rescission based on a director’s breach of his or
her duty of care. Any amendment to, or repeal of, these
 
provisions will not eliminate or reduce the effect
of these provisions in respect of any act, omission or claim
 
that occurred or arose prior to that amendment
or repeal.
Our Bylaws provide for indemnification, to the fullest extent permitted
 
by the DGCL, of any person made
or threatened to be made a party to any action, suit or
 
proceeding by reason of the fact that such person
is or was a director, officer,
 
employee or agent of the Company,
 
or, at the request of the
 
Company,
serves or served as a director,
 
officer, employee
 
or agent of another corporation or of a partnership, joint
venture, trust or any other enterprise, against all expenses,
 
judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection
 
with the defense or settlement of such action,
suit or proceeding. In addition, we have entered into indemnification
 
agreements with each of our
directors pursuant to which we have agreed to indemnify
 
each such director to the fullest extent permitted
by the DGCL.
Insofar as indemnification for liabilities arising under the Securities
 
Act may be permitted to directors or
officers,
 
we have been informed that in the opinion of the SEC such
 
indemnification is against public
policy and is therefore unenforceable.
Registration Rights
We and certain of our stockholders entered into a
 
Registration Rights Agreement on November 15, 2021
(the “Registration Rights Agreement”) pursuant to which
 
such stockholders have specified rights to
require us to register all or a portion of their shares of Class
 
A common stock (including shares received
upon conversion of shares of Class B common stock)
 
under the Securities Act.
 
The registration rights will terminate upon the earlier of (i)
 
with respect to any stockholder who then holds
less than five percent of the then-outstanding common
 
stock, such time as Rule 144 or another similar
exemption under the Securities Act is available for the sale of
 
all of such stockholder’s shares without
limitation and without regard to the availability of current public
 
information and (ii) four years following our
initial public offering. We will generally
 
pay the registration expenses (other than underwriting
 
discounts
and selling commissions), including the reasonable fees
 
and disbursements, not to exceed $50,000 of
one counsel, of the holders of the securities registered
 
pursuant to the registrations described below.
 
12
S-1 Registration Rights
. The holders of a majority of the registrable securities
 
then outstanding may
make a written request that we register the offer and
 
sale of their shares on a registration statement on
Form S-1. Such request for registration must cover at least 30%
 
of the registrable securities then
outstanding. We are obligated to effect
 
only one such registration
 
and we are not required to effect a
registration on Form S-1 if such registrable securities
 
may be registered on Form S-3 as described below.
In an underwritten public offering, the underwriters
 
have the right, subject to specified conditions, to limit
the number of shares that such holders may include for
 
registration.
S-3 Registration Rights
. The holders of at least 20% of the registrable securities
 
then outstanding may
make a written request that we register the offer and
 
sale of their shares on a registration statement
 
on
Form S-3 if we are eligible to file a registration statement
 
on Form S-3, so long as the request covers
securities the anticipated aggregate offering price of
 
which, net of underwriting discounts, selling
commissions and other selling expenses, is at least $3.0 million.
 
These stockholders may make an
unlimited number of requests for registration on Form
 
S-3;
 
provided,
however
, we are not required to
effect a registration on Form S-3 if we have effected
 
two such registrations within the 12-month period
preceding the date of the request. In an underwritten public
 
offering, the underwriters have the right,
subject to specified conditions, to limit the number of shares
 
that such holders may include for
registration.
 
Piggyback Registration Rights
. If we propose to register the offer and sale of our
 
common stock under
the Securities Act in connection with the public
 
offering of such common stock solely for cash,
 
the holders
of registrable securities will be entitled to certain “piggyback”
 
registration rights allowing the holders to
include their shares in such registration, subject to certain
 
marketing and other limitations. As a result,
whenever we propose to file a registration statement under the
 
Securities Act, other than with respect to
(i) a registration related to the sale or grant of securities
 
to our employees or a subsidiary’s employees
pursuant to a stock option, stock purchase, equity incentive
 
or similar plan, (ii) a registration relating to a
Rule 145 transaction, (iii) a registration on any registration
 
form that does not include substantially the
same information as would be required to be included in a registration
 
statement covering the sale of
registrable securities or (iv) a registration in which the only common
 
stock being registered is common
stock issuable upon conversion of debt securities that are also
 
being registered, the holders of registrable
securities are entitled to notice of the registration and have the
 
right, subject to certain limitations, to
include their shares in the registration. We have
 
the right to terminate or withdraw any registration
initiated pursuant to such “piggyback registration” rights
 
described above before the effective date of such
registration, whether or not any stockholder has elected to
 
include shares of their common stock in such
registration. In an underwritten public offering, the
 
underwriters have the right, subject to specified
conditions, to limit the number of shares that such holders
 
may include for registration.
The foregoing summary does not purport to be complete
 
and is qualified in its entirety by reference to the
Registration Rights Agreement, a copy of which has been filed
 
as an exhibit to our most recent Annual
Report on Form 10-K.
Listing
Our Class A common stock is listed on Nasdaq under
 
the symbol “VAXX
 
.”
 
13
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, which may be secured
 
or unsecured and may be exchangeable for and/or
convertible into other securities, including our Class A
 
common stock. The debt securities will be issued
under one or more separate indentures between us and
 
a designated trustee. The terms of each series of
debt securities being offered, including the terms,
 
if any, on which a
 
series of debt securities may be
convertible into or exchangeable for other securities, and the
 
material terms of the indenture will be set
forth in the applicable prospectus supplement.
The applicable prospectus supplement will set forth, to
 
the extent required, the following terms of the debt
securities in respect of which the prospectus supplement
 
is delivered:
 
the title of the series;
 
the aggregate principal amount;
 
the issue price or prices, expressed as a percentage of the
 
aggregate principal amount of the
debt securities;
 
any limit on the aggregate principal amount;
 
the date or dates on which principal is payable;
 
the interest rate or rates (which may be fixed or variable)
 
or, if applicable, the method
 
used to
determine such rate or rates;
 
the date or dates on which interest, if any,
 
will be payable and any regular record date for the
interest payable;
 
the place or places where principal and, if applicable, premium
 
and interest, is payable;
 
the terms and conditions upon which we may,
 
or the holders may require us to, redeem or
repurchase the debt securities;
 
the denominations in which such debt securities may be
 
issuable, if other than denomination of
$1,000 or any integral multiple of that number;
 
whether the debt securities are to be issuable in the form of certificated
 
debt securities or global
debt securities;
 
the portion of principal amount that will be payable upon declaration
 
of acceleration of the
maturity date if other than the principal amount of the debt securities;
 
the currency of denomination;
 
the designation of the currency,
 
currencies or currency units in which payment of principal and,
 
if
applicable, premium and interest, will be made;
 
if payments of principal and, if applicable, premium or
 
interest, on the debt securities are to be
made in one or more currencies or currency units other
 
than the currency of denominations, the
manner in which exchange rate with respect to such
 
payments will be determined;
 
if amounts of principal and, if applicable, premium and interest may
 
be determined by reference
to an index based on a currency or currencies, or by reference
 
to a commodity,
 
commodity index,
stock exchange index, or financial index, then the manner
 
in which such amounts will be
determined;
14
 
the provisions, if any,
 
relating to any collateral provided for such debt securities;
 
any events of default;
 
the terms and conditions, if any,
 
for conversion into or exchange for common stock
 
;
 
any depositaries, interest rate calculation agents, exchange rate
 
calculation agents, or other
agents; and
 
the terms and conditions, if any,
 
upon which the debt securities shall be subordinated
 
in right of
payment to other indebtedness of our company.
 
15
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or
 
equity securities or securities of third parties or other
rights, including rights to receive payment in cash or securities
 
based on the value, rate or price of one or
more specified commodities, currencies, securities or indices,
 
or any combination of the foregoing.
Warrants may be issued independently
 
or together with any other securities and may be attached to, or
separate from, such securities. Each series of warrants
 
will be issued under a separate warrant
agreement to be entered into between us and a warrant
 
agent. The terms of any warrants to be issued
and a description of the material provisions of the applicable
 
warrant agreement will be set forth in the
applicable prospectus supplement.
The applicable prospectus supplement will describe the
 
following terms of any warrants in respect of
which this prospectus is being delivered:
 
the title of such warrants;
 
the aggregate number of such warrants;
 
the price or prices at which such warrants will be issued;
 
the currency or currencies in which the price of such warrants
 
will be payable;
 
the securities or other rights, including rights to receive
 
payment in cash or securities based on
the value, rate or price of one or more specified commodities, currencies,
 
securities or indices, or
any combination of the foregoing, purchasable upon exercise
 
of such warrants;
 
the price at which and the currency or currencies in which
 
the securities or other rights
purchasable upon exercise of such warrants may be purchased;
 
the date on which the right to exercise such warrants shall
 
commence and the date on which
such right shall expire;
 
if applicable, the minimum or maximum amount of such
 
warrants which may be exercised at any
one time;
 
if applicable, the designation and terms of the securities
 
with which such warrants are issued and
the number of such warrants issued with each such security;
 
if applicable, the date on and after which such warrants and
 
the related securities will be
separately transferable;
 
information with respect to book-entry procedures, if any;
 
if applicable, a discussion of any material United States
 
Federal income tax considerations; and
 
any other terms of such warrants, including terms, procedures
 
and limitations relating to the
exchange and exercise of such warrants.
 
16
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our securities.
 
The subscription rights may be issued
independently or together with any other securities, may
 
be attached to, or separate from, such securities
and may or may not be transferable by the shareholder
 
receiving the subscription rights. In connection
with any offering of subscription rights, we may
 
enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the
 
underwriters or other purchasers may be required
to purchase any unsubscribed securities after such offering.
 
The terms of any subscription rights being
offered will be set forth in the applicable prospectus
 
supplement.
The applicable prospectus supplement will set forth the
 
following terms of the subscription rights in
respect of which this prospectus is delivered:
 
the exercise price;
 
the aggregate number of rights to be issued;
 
the type and number of securities purchasable upon exercise
 
of each right;
 
the procedures and limitations relating to the exercise of the rights;
 
the date upon which the exercise of rights will commence;
 
the record date, if any,
 
to determine who is entitled to the rights;
 
the expiration date;
 
the extent to which the rights are transferable;
 
information regarding the trading of rights, including the
 
stock exchanges, if any,
 
on which the
rights will be listed;
 
the extent to which the subscription rights may include an over-subscription
 
privilege with respect
to unsubscribed securities;
 
if appropriate, a discussion of material U.S. federal income
 
tax considerations;
 
if applicable, the material terms of any standby underwriting
 
or purchase arrangement entered
into by us in connection with the offering of the rights;
 
and
 
any other material terms of the rights.
If fewer than all of the subscription rights issued in any
 
rights offering are exercised, we may offer
 
any
unsubscribed securities directly to persons other than
 
shareholders, to or through agents, underwriters or
dealers or through a combination of such methods, including
 
pursuant to standby arrangements, as
described in the applicable prospectus supplement.
 
17
DESCRIPTION OF UNITS
We may issue units consisting of one or more warrants,
 
debt securities, shares of preferred stock, shares
of common stock or any combination of such securities.
 
The terms of any units being offered will be set
forth in the applicable prospectus supplement.
 
The applicable prospectus supplement will set forth the
 
following terms of the units in respect of which
this prospectus is delivered:
 
the terms of the units and of the warrants, debt securities
 
and common stock comprising the
units, including whether and under what circumstances
 
the securities comprising the units may be
traded separately;
 
a description of the terms of any unit agreement governing the
 
units; and
 
a description of the provisions for the payment, settlement,
 
transfer or exchange of the units.
 
18
FORMS OF SECURITIES
Each debt security,
 
warrant and unit will be represented either by a certificate
 
issued in definitive form to
a particular investor or by one or more global securities
 
representing the entire issuance of securities.
Certificated securities in definitive form and global securities
 
will be issued in registered form. Definitive
securities name you or your nominee as the owner of the
 
security, and
 
in order to transfer or exchange
these securities or to receive payments other than interest
 
or other interim payments, you or your
nominee must physically deliver the securities to the trustee, registrar,
 
paying agent or other agent, as
applicable. Global securities name a depositary or its nominee
 
as the owner of the debt securities,
warrants or units represented by these global securities.
 
The depositary maintains a computerized
system that will reflect each investor’s beneficial ownership of the
 
securities through an account
maintained by the investor with its broker/dealer,
 
bank, trust company or other representative, as we
explain more fully below.
Global Securities
We may issue the registered debt securities, warrants
 
and units in the form of one or more fully registered
global securities that will be deposited with a depositary or
 
its nominee identified in the applicable
prospectus supplement and registered in the name of
 
that depositary or nominee. In those cases, one or
more registered global securities will be issued in a denomination
 
or aggregate denominations equal to
the portion of the aggregate principal or face amount
 
of the securities to be represented by registered
global securities. Unless and until it is exchanged in whole for
 
securities in definitive registered form, a
registered global security may not be transferred except
 
as a whole by and among the depositary for the
registered global security,
 
the nominees of the depositary or any successors
 
of the depositary or those
nominees.
If not described below, any
 
specific terms of the depositary arrangement with respect
 
to any securities to
be represented by a registered global security will be
 
described in the prospectus supplement relating to
those securities. We anticipate that the following provisions
 
will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will
 
be limited to persons, called
participants, that have accounts with the depositary or
 
persons that may hold interests through
participants. Upon the issuance of a registered global security,
 
the depositary will credit, on its book-entry
registration and transfer system, the participants’
 
accounts with the respective principal or face amounts
of the securities beneficially owned by the participants.
 
Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts
 
to be credited. Ownership of beneficial
interests in a registered global security will be shown on,
 
and the transfer of ownership interests will be
effected only through, records maintained by the
 
depositary, with respect
 
to interests of participants, and
on the records of participants, with respect to interests
 
of persons holding through participants. The laws
of some states may require that some purchasers of securities
 
take physical delivery of these securities in
definitive form. These laws may impair your ability to own,
 
transfer or pledge beneficial interests in
registered global securities.
So long as the depositary,
 
or its nominee, is the registered owner of a registered
 
global security, that
depositary or its nominee, as the case may be, will be
 
considered the sole owner or holder of the
securities represented by the registered global security
 
for all purposes under the applicable indenture,
warrant agreement, guaranteed trust preferred security or
 
unit agreement. Except as described below,
owners of beneficial interests in a registered global security
 
will not be entitled to have the securities
represented by the registered global security registered
 
in their names, will not receive or be entitled to
receive physical delivery of the securities in definitive form and
 
will not be considered the owners or
holders of the securities under the applicable indenture, warrant
 
agreement, guaranteed trust preferred
security or unit agreement. Accordingly,
 
each person owning a beneficial interest in a registered
 
global
security must rely on the procedures of the depositary for that
 
registered global security and, if that
person is not a participant, on the procedures of the participant
 
through which the person owns its
interest, to exercise any rights of a holder under the applicable
 
indenture, warrant agreement, guaranteed
trust preferred security or unit agreement. We understand
 
that under existing industry practices, if we
request any action of holders or if an owner of a beneficial
 
interest in a registered global security desires
19
to give or take any action that a holder is entitled to give or take
 
under the applicable indenture, warrant
agreement, guaranteed trust preferred security or unit agreement,
 
the depositary for the registered global
security would authorize the participants holding the relevant
 
beneficial interests to give or take that
action, and the participants would authorize beneficial owners
 
owning through them to give or take that
action or would otherwise act upon the instructions of beneficial
 
owners holding through them.
Principal, premium, if any,
 
and interest payments on debt securities, and any payments to
 
holders with
respect to warrants, guaranteed trust preferred securities
 
or units, represented by a registered global
security registered in the name of a depositary or its nominee
 
will be made to the depositary or its
nominee, as the case may be, as the registered owner
 
of the registered global security.
 
None of the
Company, the trustees,
 
the warrant agents, the unit agents or any other agent
 
of the Company,
 
agent of
the trustees or agent of the warrant agents or unit agents
 
will have any responsibility or liability for any
aspect of the records relating to payments made on account
 
of beneficial ownership interests in the
registered global security or for maintaining, supervising
 
or reviewing any records relating to those
beneficial ownership interests.
We expect that the depositary for any of the
 
securities represented by a registered global security,
 
upon
receipt of any payment of principal, premium, interest or other
 
distribution of underlying securities or other
property to holders on that registered global security,
 
will immediately credit participants’
 
accounts in
amounts proportionate to their respective beneficial interests
 
in that registered global security as shown
on the records of the depositary.
 
We also expect that payments by participants
 
to owners of beneficial
interests in a registered global security held through participants
 
will be governed by standing customer
instructions and customary practices, as is now the case with
 
the securities held for the accounts of
customers in bearer form or registered in “street name,”
 
and will be the responsibility of those participants.
If the depositary for any of these securities represented by
 
a registered global security is at any time
unwilling or unable to continue as depositary or ceases
 
to be a clearing agency registered under the
Exchange Act, and a successor depositary registered
 
as a clearing agency under the Securities
Exchange Act of 1934 is not appointed by us within
 
90 days, we will issue securities in definitive form in
exchange for the registered global security that had
 
been held by the depositary.
 
Any securities issued in
definitive form in exchange for a registered global security
 
will be registered in the name or names that
the depositary gives to the relevant trustee, warrant agent,
 
unit agent or other relevant agent of ours or
theirs. It is expected that the depositary’s instructions
 
will be based upon directions received by the
depositary from participants with respect to ownership of beneficial
 
interests in the registered global
security that had been held by the depositary.
 
20
PLAN OF DISTRIBUTION
We may sell the securities offered by this
 
prospectus from time to time in one or more transactions,
including, without limitation:
 
through underwriters or dealers;
 
directly to a limited number of purchasers or to a single
 
purchaser;
 
in “at the market offerings,” within the meaning of
 
Rule 415(a)(4) of the Securities Act, into an
existing trading market on an exchange or otherwise;
 
through agents; or
 
through any other method permitted by applicable law
 
and described in the applicable prospectus
supplement.
A distribution of the securities offered by this
 
prospectus may also be effected through the
 
issuance of
derivative securities, including, without limitation, warrants,
 
exchangeable securities, forward delivery
contracts and the writing of options.
The prospectus supplement will state the terms of the offering
 
of the securities, including:
 
the name or names of any underwriters, dealers or agents;
 
the purchase price of such securities and the proceeds
 
to be received by us, if any;
 
any underwriting discounts or agency fees and other items
 
constituting underwriters’ or agents’
compensation;
 
any public offering price;
 
any discounts or concessions allowed or reallowed or
 
paid to dealers; and
 
any securities exchanges on which the securities may be listed.
Any public offering price and any discounts or concessions
 
allowed or reallowed or paid to dealers may
be changed from time to time.
If underwriters are used in the sale, the securities will be
 
acquired by the underwriters for their own
account and may be resold from time to time in one or
 
more transactions, including:
 
negotiated transactions;
 
at a fixed public offering price or prices, which
 
may be changed;
 
at market prices prevailing at the time of sale;
 
at prices related to prevailing market prices; or
 
at negotiated prices.
Unless otherwise stated in a prospectus supplement, the
 
obligations of the underwriters to purchase any
securities will be conditioned on customary closing conditions
 
and the underwriters will be obligated to
purchase all of such series of securities, if any are purchased.
21
The securities may be sold through agents from time to time.
 
The prospectus supplement will name any
agent involved in the offer or sale of the securities
 
and any commissions paid to them. Generally,
 
any
agent will be acting on a best efforts basis for the
 
period of its appointment.
Sales to or through one or more underwriters or agents
 
in “at the market offerings”
 
will be made pursuant
to the terms of a distribution agreement with the underwriters
 
or agents. Such underwriters or agents may
act on an agency basis or on a principal basis. During the term
 
of any such agreement, shares may be
sold on a daily basis on any stock exchange, market or trading
 
facility on which the Class A common
stock are traded, in privately negotiated transactions or
 
otherwise as agreed with the underwriters or
agents. The distribution agreement will provide that any
 
common share sold will be sold at negotiated
prices or at prices related to the then prevailing market prices
 
for our Class A common stock. Therefore,
exact figures regarding proceeds that will be raised or
 
commissions to be paid cannot be determined at
this time and will be described in a prospectus supplement.
 
Pursuant to the terms of the distribution
agreement, we may also agree to sell, and the relevant underwriters
 
or agents may agree to solicit offers
to purchase, blocks of our securities. The terms of each
 
such distribution agreement will be described in a
prospectus supplement.
We may authorize underwriters, dealers or agents
 
to solicit offers by certain purchasers to purchase
 
the
securities at the public offering price set forth in the
 
prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified
 
date in the future. The contracts will be
subject only to those conditions set forth in the prospectus
 
supplement, and the prospectus supplement
will set forth any commissions paid for solicitation of these
 
contracts.
Underwriters and agents may be entitled under agreements
 
entered into with us to indemnification by us
against certain civil liabilities, including liabilities under
 
the Securities Act, or to contribution with respect to
payments which the underwriters or agents may be required
 
to make.
The prospectus supplement may also set forth whether
 
or not underwriters may over-allot or effect
transactions that stabilize, maintain or otherwise affect
 
the market price of the securities at levels above
those that might otherwise prevail in the open market,
 
including, for example, by entering stabilizing bids,
effecting syndicate covering transactions or imposing
 
penalty bids.
Underwriters and agents may be customers of, engage
 
in transactions with, or perform services for us
and our affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities
 
and will have no established trading market,
other than our Class A common stock, which are listed
 
on Nasdaq. Any underwriters to whom securities
are sold for public offering and sale may make a
 
market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making
 
at any time without notice. The securities,
other than our Class A common stock, may or may not
 
be listed on a national securities exchange.
 
22
VALIDITY OF SECURITIES
The validity of the securities covered by this prospectus
 
will be passed on for us by Davis Polk &
Wardwell LLP,
 
New York,
 
New York
 
.
 
Additional legal matters may be passed upon for us or
 
any
underwriters, dealers or agents by counsel that we will
 
name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Vaxxinity
 
,
 
Inc. as of December 31, 2022 and 2021, and for each
of the years in the two-year period ended December 31,
 
2022, have been incorporated by reference
herein in reliance upon the report of Armanino LLP,
 
independent registered public accounting firm,
incorporated by reference herein, and upon the authority
 
of said firm as experts in accounting and
auditing.
 
23
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
 
proxy statements and other information with the SEC.
 
The
SEC maintains a website at
www.sec.gov
 
that contains reports, proxy and information statements
 
and
other information we have filed electronically with the SEC.
The SEC allows us to “incorporate by reference” the information
 
we file with them, which means that we
can disclose important information to you by referring you
 
to those documents. The information
incorporated by reference is an important part of this prospectus,
 
and information that we file later with
the SEC will automatically update and supersede this information.
 
We incorporate by reference the
documents listed below and all documents we file pursuant
 
to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act between the date of the initial filing of the
 
registration statement of which this prospectus
forms a part and the effectiveness of such registration
 
statement and on or after the date of this
prospectus and prior to the termination of the offering
 
under this prospectus and any prospectus
supplement (other than, in each case, documents or information
 
deemed to have been furnished and not
filed in accordance with SEC rules):
(a)
 
our
(b)
 
our
 
(solely with
respect to those portions incorporated by reference
 
into our Annual Report on Form 10-K for the
year ended December 31, 2022);
(c)
 
our Quarterly Reports on Form 10-Q for the quarters ended
 
and June 30, 2023;
(d)
 
our Current Reports on Form 8-K filed with the SEC on
,
 
and
 
and
(e)
 
the description of our Class A common stock contained in
 
our
 
including any amendments or reports filed for the
purposes of updating such description.
Any statement contained in this prospectus or in any document
 
incorporated or deemed to be
incorporated by reference into this prospectus will be deemed
 
modified or superseded for the purposes of
this prospectus to the extent that a statement contained in
 
this prospectus or any subsequently filed
document which also is, or is deemed to be, incorporated by
 
reference into this prospectus modifies or
supersedes that statement. Any statement so modified or superseded
 
will not be deemed, except as so
modified or superseded, to constitute a part of this prospectus.
You can obtain
 
any of the filings incorporated by reference in this prospectus
 
through us or from the SEC
through the SEC’s website at
www.sec.gov
. Our filings with the SEC, including our Annual Reports
 
on
Form 10-K, Quarterly Reports on Form 10-Q, Current
 
Reports on Form 8-K, and exhibits incorporated in
and amendments to those reports, are also available free
 
of charge on our website (
www.vaxxinity.com
)
as soon as reasonably practicable after they are filed with,
 
or furnished to, the SEC. Information on, or
accessible through, our website is not part of this prospectus,
 
nor is such content incorporated by
reference in this prospectus, and should not be relied
 
upon in determining whether to make an investment
in our securities. You
 
can obtain any of the documents incorporated by
 
reference into this prospectus
from us without charge, excluding any exhibits to those documents
 
unless the exhibit is specifically
incorporated by reference into those documents. You
 
can obtain documents incorporated by reference
into this prospectus by requesting them in writing or by telephone
 
from us at the following address:
Investor Relations
Vaxxinity,
 
Inc.
505 Odyssey Way
Merritt Island, Florida 32953
(254) 244-5739
 
 
 
 
vaxxs3082023p3i0
$300,000,000
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
PROSPECTUS
 
, 2023
vaxxs3082023p3i0
The information contained in this prospectus supplement
 
is not complete and may be changed.
These securities may not be sold until the registration
 
statement filed with the Securities and
Exchange Commission is effective. This prospectus
 
supplement is not an offer to sell these
securities and it is not soliciting an offer to buy these securities
 
in any jurisdiction where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED
 
August 9, 2023
PROSPECTUS SUPPLEMENT
Up to $100,000,000
Class A Common Stock
We entered into an Open Market Sale Agreement
SM
 
with Jefferies LLC (“Jefferies” or the “sales
 
agent”),
dated August 9, 2023, relating to the sale of our Class A common
 
stock,
 
par value $0.0001 per share,
offered by this prospectus supplement and the accompanying
 
prospectus (such agreement, the “sales
agreement”). In accordance with the terms of the sales
 
agreement, under this prospectus supplement, we
may offer and sell our Class A common stock having
 
an aggregate offering price of up to $100,000,000
 
from
time to time through the sales agent.
Sales of our Class A common stock, if any,
 
under this prospectus supplement will be made by any
 
method
permitted that is deemed an “at the market offering”
 
as defined in Rule 415(a)(4) under the Securities Act of
1933, as amended (the “Securities Act”). The sales agent
 
is not required to sell any specific amount, but will
act as our sales agent using commercially reasonable efforts
 
consistent with its normal trading and sales
practices. There is no arrangement for funds to be received
 
in an escrow, trust or similar
 
arrangement.
The sales agent will be entitled to compensation at a commission
 
rate of 3.0% of the gross sales price of any
Class A common stock sold under the sales agreement. In connection
 
with the sale of Class A common
stock on our behalf, the sales agent will be deemed to
 
be an “underwriter” within the meaning of the
Securities Act and the compensation of the sales agent will
 
be deemed to be underwriting commissions or
discounts. We have also agreed to provide indemnification
 
and contribution to the sales agent with respect to
certain liabilities, including civil liabilities under the Securities
 
Act. See “Plan of Distribution” beginning on
page S-10 for additional information regarding the compensation
 
to be paid to the sales agent.
Our Class A common stock is listed on The Nasdaq Global
 
Market (“Nasdaq”) under the symbol “VAXX.”
 
On
August 4, 2023, the last reported sale price of our Class
 
A common stock on Nasdaq was $2.56 per share.
 
As of the date of this prospectus supplement, we are an “emerging
 
growth company” as defined under the
U.S. federal securities laws and, as such, we have elected
 
to comply with certain reduced public company
reporting requirements for this prospectus supplement
 
and the documents incorporated by reference in this
prospectus supplement.
Investing in our securities involves a high degree of
 
risk. See the “Risk Factors” section beginning
on page S-4 of this prospectus supplement and any risk
 
factors in our Securities and Exchange
Commission (“SEC”) filings that are incorporated
 
by reference in this prospectus supplement.
Neither the Securities and Exchange Commission nor any
 
state securities commission has approved
or disapproved of these securities or determined if
 
this prospectus supplement or the accompanying
prospectus is truthful or complete. Any representation
 
to the contrary is a criminal offense.
 
Jefferies
Prospectus supplement dated
 
, 2023.
 
S-i
TABLE OF CONTENTS
Page
S-1
S-4
S-5
S-7
S-8
S-9
S-10
S-12
S-12
S-13
This document consists of two parts. The first part is
 
the accompanying prospectus, which is part of a
registration statement that we filed with the SEC using
 
a “shelf” registration process. The accompanying
prospectus provides you with a general description of the securities
 
that we may offer,
 
some of which
may not apply to this offering. The second part
 
is this prospectus supplement, which describes the
specific terms of this offering.
 
This prospectus supplement and the information incorporated
 
by reference
in this prospectus supplement add to, update and, where
 
applicable, change the information contained or
incorporated by reference in the accompanying prospectus.
Before buying any of the securities that we are offering,
 
you should carefully read both this prospectus
supplement and the accompanying prospectus with all
 
of the information incorporated by reference in this
prospectus supplement, as well as the additional information
 
described under the heading “Where You
Can Find More Information.” These documents contain important
 
information that you should consider
when making your investment decision.
 
To
 
the extent there is a conflict between the information contained
 
in this prospectus supplement, on the
one hand, and the information contained in the accompanying
 
prospectus or in any document
incorporated by reference in this prospectus supplement, on
 
the other hand, you should rely on the
information in this prospectus supplement, provided that
 
if any statement in one of these documents is
inconsistent with a statement in another document having
 
a later date—for example, a document
incorporated by reference in this prospectus supplement
 
—the statement in the document having the later
date modifies or supersedes the earlier statement.
The information contained in this prospectus supplement,
 
the accompanying prospectus or any document
incorporated by reference in this prospectus supplement
 
is accurate only as of their respective dates,
regardless of the time of delivery of this prospectus, the
 
accompanying prospectus or the documents
incorporated by reference in this prospectus or in the accompanying
 
prospectus or the sale of any
securities. Our business, financial condition, results of operations
 
and prospects may have changed
materially since those dates.
Neither we nor the sale agent have authorized anyone to provide
 
you with information that is different
from that contained in this prospectus supplement, the accompanying
 
prospectus, or any free writing
prospectus we may authorize to be delivered or made
 
available to you. Neither we nor the sales agent
take responsibility for, or provide
 
assurance as to the reliability of, any other information that
 
others may
give you. This prospectus supplement does not constitute an
 
offer to sell or the solicitation of an offer
 
to
buy any securities other than the securities described
 
in this prospectus supplement or an offer
 
to sell or
the solicitation of an offer to buy such securities
 
in any circumstances in which such offer
 
or solicitation is
unlawful.
Unless otherwise indicated or the context otherwise requires,
 
all references in this prospectus to
“Vaxxinity,”
 
the “Company,”
 
“we,” “us” and “our” refer to Vaxxinity,
 
Inc. and its consolidated subsidiaries.
S-1
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere
 
in this prospectus supplement or incorporated
by reference in this prospectus supplement. This summary
 
may not contain all the information that may
be important to you, and we urge you to read this entire
 
prospectus supplement and the accompanying
prospectus and the documents incorporated by reference
 
in this prospectus supplement carefully before
deciding to invest in our securities.
Our Company
We are a purpose-driven biotechnology company committed
 
to democratizing healthcare across the
globe. Our vision is to disrupt the existing treatment paradigm
 
for chronic diseases, increasingly
dominated by drugs, particularly monoclonal antibodies
 
(“mAbs”), which suffer from prohibitive costs and
cumbersome administration. We believe our synthetic
 
peptide vaccine platform (“Vaxxine
 
Platform”) has
the potential to enable a new class of therapeutics
 
that will improve the quality and convenience of care,
reduce costs and increase access to treatments for a
 
wide range of indications. Our Vaxxine
 
Platform is
designed to harness the immune system to convert the body
 
into its own “drug factory,”
 
stimulating the
production of antibodies with a therapeutic or protective
 
effect. While traditional vaccines have been
 
able
to leverage this approach against infectious diseases, they have
 
historically been unable to resolve key
challenges in the fight against chronic diseases. We
 
believe our Vaxxine
 
Platform has the potential to
overcome these challenges and has the potential to bring
 
the efficiency of vaccines to a whole new
 
class
of medical conditions. Specifically,
 
our technology is designed to use synthetic peptides to mimic
 
and
optimally combine biological epitopes in order to selectively
 
activate the immune system, producing highly
specific antibodies against only the desired targets, including
 
self-antigens, making possible the safe and
effective treatment of chronic diseases by vaccines.
 
The modular and synthetic nature of our Vaxxine
Platform generally provides significant speed and efficiency
 
in candidate development and has generated
multiple product candidates that we are designing to
 
have safety and efficacy equal to or greater than
 
the
standard-of-care treatments for many chronic diseases,
 
with more convenient administration and
meaningfully lower costs. Our current pipeline consists of five
 
chronic disease product candidates from
early to late-stage development across multiple therapeutic
 
areas, including Alzheimer’s Disease (“AD”),
Parkinson’s Disease (“PD”), migraine and hypercholesterolemia.
 
Additionally, we
 
believe our Vaxxine
Platform may be used to disrupt the treatment paradigm
 
for a wide range of other chronic diseases,
including any that are or could potentially be successfully treated
 
by mAbs. We also will opportunistically
pursue infectious disease treatments. When the COVID
 
-19 pandemic struck the world in March 2020, we
quickly reallocated resources to develop a vaccine candidate.
 
We have assembled an industry-leading
team with extensive experience developing and commercializing
 
successful drugs that is committed to
realizing our mission of democratizing healthcare.
 
Our principal executive offices are located at 505 Odyssey
 
Way,
 
Merritt Island, Florida 32953, and our
telephone number is (254) 244-5739. Our website address
 
is
www.vaxxinity.com
. Information on, or
accessible through, our website is not part of this prospectus
 
supplement, nor is such content
incorporated by reference in this prospectus supplement, and
 
should not be relied upon in determining
whether to make an investment in our securities.
Implications of Being an Emerging Growth Company
 
and a Smaller Reporting Company
We are an “emerging growth company” as defined
 
in the Jumpstart Our Business Startups Act of 2012,
as amended (the “JOBS Act”). An emerging growth company
 
may take advantage of specified
exemptions from various requirements that are otherwise
 
applicable generally to public companies in the
United States. These provisions include:
 
not being required to comply with the auditor attestation requirements
 
of Section 404 of the
Sarbanes–Oxley Act;
S-2
 
not being required to comply with any requirement that
 
may be adopted by the Public
Company Accounting Oversight Board regarding mandatory
 
audit firm rotation or a
supplement to the auditor’s report providing additional information about
 
the audit and the
financial statements;
 
being required to provide only two years of audited financial
 
statements in addition to any
required unaudited interim financial statements;
 
permitting an extended transition period for complying
 
with new or revised accounting
standards, which allows an emerging growth company to delay
 
the adoption of certain
accounting standards until those standards would otherwise
 
apply to private companies;
 
reduced disclosure obligations regarding executive compensation;
 
and
 
exemptions from the requirements of holding a nonbinding
 
advisory vote on executive
compensation and shareholder approval of any golden parachute
 
payments not previously
approved.
We have elected to take advantage of certain of the
 
reduced disclosure obligations in this prospectus
supplement and the documents incorporated by reference in
 
this prospectus supplement and may elect to
take advantage of other reduced reporting requirements
 
in future filings. In addition, we have elected to
use the extended transition period for new or revised accounting
 
standards during the period in which we
remain an emerging growth company.
 
As a result, the information that we provide to our investors
 
may be
different from the information you might receive from
 
other public reporting companies that are not
emerging growth companies in which you hold securities.
S-3
The Offering
Common Stock Offered by Us
Class A common stock having an aggregate offering
 
price of up to
$100,000,000.
Common Stock Outstanding
Before this Offering
112,823,912 shares
 
of Class A common stock and 13,874,132 shares of
Class B common stock.
Common Stock Outstanding
After this Offering
151,886,412 shares of Class A common stock and 13,874,132
 
shares of
Class B common stock, after giving effect to the assumed
 
sale by us of
$100,000,000 of Class A common stock at an assumed
 
public offering
price of $2.56 per share, which was the last reported sale
 
price of our
Class A common stock on Nasdaq on August 4, 2023.
Plan of Distribution
“At the market offering” that may be made from time
 
to time through the
sales agent. See “Plan of Distribution” on page S-4 of
 
this prospectus
supplement.
Use of Proceeds
We intend to use the net proceeds from this
 
offering, if any,
 
to advance
our existing product candidates, invest in our Vaxxine
 
Platform and new
product candidates and for general working capital, capital
 
expenditures
and other general corporate purposes. See “Use of Proceeds.”
Risk Factors
Investing in our Class A common stock involves a high
 
degree of risk.
See the “Risk Factors” section beginning on page S-4
 
of this prospectus
supplement and in the documents incorporated by reference
 
in this
prospectus supplement and the accompanying prospectus
 
for a
discussion of factors you should consider before deciding
 
to invest in our
Class A common stock.
Nasdaq Symbol
“VAXX”
Common stock outstanding before and after this offering,
 
including as discussed under “Dilution”, is
based on 112,823,912
 
shares of Class A common stock outstanding as
 
of June 30, 2023 and 13,874,132
shares of Class B common stock outstanding as of June
 
30, 2023, and excludes:
 
 
1,928,020 shares of Class A common stock issuable upon the
 
exercise of warrants outstanding
as of June 30, 2023, with an exercise price of $12.45 per share;
 
300,000 shares of Class A common stock issuable upon
 
vesting of restricted stock units
outstanding as of June 30, 2023;
 
16,022,171 shares of Class A common stock issuable
 
upon exercise of options outstanding as of
June 30, 2023, with a weighted-average exercise price
 
of $2.52 per share;
 
6,362,455 shares of Class B common stock issuable upon exercise
 
of options outstanding as of
June 30, 2023, with a weighted-average exercise price
 
of $10.07 per share;
 
6,079,959 shares of Class A common stock reserved for
 
future issuance under our 2021 Stock
Option and Grant Plan and 2021 Omnibus Incentive Compensation
 
Plan and our 2021 Employee
Stock Purchase Plan; and
 
shares of Class A common stock issuable upon the conversion
 
of Class B common stock.
S-4
RISK FACTORS
Investing in our securities involves risk. Before making
 
a decision to invest in our securities, you should
carefully consider the following risks and the risks described
 
under “Risk Factors” in our most recent
Annual Report on Form 10-K, and any updates to those
 
risk factors in our subsequent Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, together
 
with all of the other information appearing or
incorporated by reference in this prospectus supplement, in
 
light of your particular investment objectives
and financial circumstances. Although we discuss key
 
risks in our discussion of risk factors, new risks
may emerge in the future, which may prove to be significant.
 
We cannot predict future risks or estimate
the extent to which they may affect our business, results
 
of operations, financial condition and prospects.
Risks Related to this Offering
You may experience immediate and
 
substantial dilution in the book value of your investment.
If you purchase our Class A common stock in this offering,
 
you will experience immediate dilution in an
amount equal to the difference between the purchase
 
price per share and our then-net tangible book
value per share of common stock. See “Dilution.”
The actual number of shares of Class A common
 
stock we will sell under the sales agreement and
the resulting gross proceeds is uncertain.
Subject to certain limitations in the sales agreement and compliance
 
with applicable law, we
 
have the
discretion to deliver a placement notice to the sales agent at
 
any time throughout the term of the sales
agreement. The number of shares of Class A common
 
stock that are sold by the sales agent after we
deliver a placement notice will fluctuate based on the market price
 
of our Class A common stock during
the sales period and limits we set in the placement notice.
 
Because the price per share sold will fluctuate
based on the market price of our Class A common stock
 
during the sales period, it is not possible to
predict the number of shares of Class A common stock
 
that will be ultimately sold or the resulting gross
proceeds.
The Class A common stock offered in this offering
 
will be sold in “at the market offerings.”
Investors who purchase our Class A common stock in this
 
offering at different times will
 
likely
pay different prices.
Investors who purchase our Class A common stock in
 
this offering at different times will likely
 
pay
different prices, and so may experience different
 
outcomes in their investment results. We will have
discretion, subject to market demand, to vary the timing, prices
 
and numbers of shares of Class A
common stock sold, and subject to certain limitations in the
 
sales agreement, there is no minimum or
maximum sales price. Investors may experience a decline in the
 
value of their Class A common stock and
dilution as a result of sales made at prices lower than the
 
prices they paid.
We have broad discretion in the use of the net
 
proceeds from this offering, and we may not
 
use
them effectively.
 
We currently intend to use the net proceeds from
 
this offering as described in “Use of Proceeds.”
However, our board of directors
 
and our management retains broad discretion in the application
 
of the net
proceeds from this offering and could spend the
 
proceeds in ways that do not improve our results of
operations or enhance the value of our Class A common
 
stock. Our failure to apply these funds effectively
could result in financial losses, which could have a material adverse
 
effect on our business, results of
operations, financial condition and prospects.
 
S-5
SPECIAL NOTE ON FORWARD
 
-LOOKING STATEMENTS
This prospectus supplement, including the documents incorporated
 
by reference in this prospectus
supplement, contains forward-looking statements within
 
the meaning of Section 21E of the Exchange Act
and Section 27A of the Securities Act of 1933, as amended
 
(the “Securities Act”). Forward-looking
statements are neither historical facts nor assurances of future
 
performance. Instead, they are based on
our current beliefs, expectations and assumptions regarding
 
the future of our business, future plans and
strategies and other future conditions. In some cases, you
 
can identify forward-looking statements
because they contain words such as “anticipate,” “believe,” “estimate,”
 
“expect,” “intend,” “may,”
 
“predict,”
“project,” “target,” “potential,” “seek,” “will,” “would,” “could,”
 
“should,” “continue,” “contemplate,” “plan,”
other words and terms of similar meaning and the negative
 
of these words or similar terms.
All forward-looking statements speak only as of the date
 
on which they are made. Forward-looking
statements are subject to known and unknown risks
 
and uncertainties, many of which may be beyond our
control. We caution you that forward-looking statements
 
are not guarantees of future performance or
outcomes and that actual performance and outcomes
 
may differ materially from those made in or
suggested by the forward-looking statements. Factors
 
that could cause actual results and outcomes to
differ materially from those reflected in forward-looking
 
statements include, among others, the following:
the prospects of our product candidates, including the
 
progress, number, scope, cost,
 
results and timing
of data from our development activities, preclinical trials
 
and clinical trials for our product candidates or
programs, such as the target indication(s) for development or approval,
 
the size, design, population,
conduct, cost, objective or endpoints of any clinical trial,
 
or the timing for initiation or completion of or
availability of results from any clinical trial, for submission,
 
review or approval of any regulatory filing, or
for meeting with regulatory authorities; the potential benefits
 
that may be derived from any of our product
candidates; the timing of and our ability to obtain and maintain regulatory
 
approval for our existing product
candidates, any product candidates that we may develop, and
 
any related restrictions, limitations, or
warnings in the label of any approved product candidates;
 
our ability to develop and commercialize new
products and product candidates; our ability to leverage our
 
Vaxxine Platform;
 
the rate and degree of
market acceptance of our products and product candidates;
 
estimates of our addressable market and
market growth, and expectations about market trends;
 
our future operations, financial position, revenue,
costs, expenses, uses of cash,
 
including, any proceeds from this offering,
 
capital requirements, our needs
for additional financing or the period for which our existing
 
cash resources will be sufficient to meet our
operating requirements; our ability to comply with legal and regulatory
 
requirements relating to privacy,
tax, anti-corruption and other applicable laws; our ability
 
to hire and retain key personnel and to manage
our future growth effectively; our ability to access
 
capital on acceptable terms in a rising interest rate and
tighter credit environment; competitive companies and
 
technologies within our industry and our ability to
compete; our and our collaborators’, including United
 
Biomedical’s (“UBI”), ability and willingness to
obtain, maintain, defend and enforce our intellectual property protection
 
for our proprietary and
collaborative product candidates, and the scope of such protection;
 
the performance of third-party
suppliers and manufacturers and our ability to find additional
 
suppliers and manufacturers and obtain
alternative sources of raw materials; our ability and the
 
potential to successfully manufacture our product
candidates for pre-clinical use, for clinical trials and, if approved,
 
on a larger scale for commercial use; the
ability and willingness of our third-party collaborators, including
 
UBI, to continue research and
development activities relating to our product candidates
 
and our ability to attract additional collaborators
with development, regulatory and commercialization expertise;
 
general economic, political, demographic
and business conditions in the United States, Taiwan
 
and other jurisdictions where we conduct business
or clinical trials; the potential effects of government
 
regulation, including regulatory developments in the
United States and other jurisdictions; our ability to obtain additional
 
financing in future offerings or
otherwise; the effects of the Russia-Ukraine conflict
 
and the COVID-19 pandemic on business operations
and the initiation, development and operation of our clinical
 
trials, including patient enrollment of our
clinical trials; and our strategies, prospects, plans, expectations,
 
forecasts or objectives.
These factors should not be construed as exhaustive and should
 
be read in conjunction with the other
cautionary statements and information included in this prospectus
 
supplement, including our most recent
Annual Report on Form 10-K and subsequent Quarterly
 
Reports on Form 10-Q and Current Reports on
Form 8-K. New risk factors emerge from time to time, and
 
it is not possible to predict all such risk factors,
S-6
nor can we assess the impact of all such risk factors on
 
our business or the extent to which any factor or
combination of factors may cause actual results to differ
 
materially from those contained in any forward-
looking statement. Undue reliance should not be placed
 
on these forward-looking statements. We do not
undertake any obligation to make any revisions to these
 
forward-looking statements to reflect events or
circumstances after the date on which such statements
 
were made or to reflect the occurrence of
unanticipated events, except as required by law.
 
 
S-7
USE OF PROCEEDS
We may offer and sell our Class A common
 
stock having an aggregate offering price
 
of up to
$100,000,000 from time to time through the sales agent. Because
 
there is no minimum offering amount
required as a condition to close this offering, the
 
actual total public offering amount, commissions
 
and
proceeds to us, if any,
 
are not determinable at this time.
We intend to use the net proceeds from this offering,
 
if any, to
 
advance our existing product candidates,
invest in our Vaxxine
 
Platform and new product candidates and for general working
 
capital, capital
expenditures and other general corporate purposes.
 
We may also use a portion of the net proceeds
 
to in-
license or acquire or invest in complementary technologies,
 
products, businesses or assets; however,
 
we
have no current plans, commitments or obligations to do so.
 
Our expected use of the net proceeds from
this offering represents our current intentions based
 
on our present plans and business condition, which
could change as our plans and business conditions evolve. The
 
amounts and timing of our actual use of
the net proceeds from this offering will vary depending
 
on numerous factors. As a result, we cannot
predict with certainty all of the particular uses for any net proceeds
 
to be received or the amounts that we
will actually spend on the uses set forth above. Our board
 
of directors and our management retains broad
discretion in the application of the net proceeds from this
 
offering.
Pending the use of the proceeds from this offering,
 
we intend to invest the net proceeds in a variety of
capital preservation instruments, which may include all or
 
a combination of short-term and long-term
interest-bearing instruments, investment-grade securities,
 
and direct or guaranteed obligations of the U.S.
government. We cannot predict whether the proceeds
 
invested will yield a favorable return.
 
S-8
DIVIDEND POLICY
We do not anticipate declaring or paying regular cash
 
dividends on our Class A common stock in the near
term. Any future declaration and payment of cash dividends
 
or other distributions of capital will be at the
discretion of our board of directors and will depend on
 
our financial condition, earnings, cash needs,
capital requirements (including requirements of our subsidiaries),
 
contractual, legal, tax and regulatory
restrictions, and any other factors that our board of directors
 
deems relevant in making such a
determination. Therefore, we cannot assure you that we will
 
pay any cash dividends or other distributions
to holders of our Class A common stock, or as to the amount
 
of any such cash dividends or other
distributions if and when paid.
 
S-9
DILUTION
If you purchase Class A common stock in this offering,
 
you will experience immediate dilution in an
amount equal to the difference between the purchase
 
price per share and our then-net tangible book
value per share of common stock.
 
Net tangible book value per share is determined by dividing
 
our tangible net worth (defined as total
assets, less intangible assets, less total liabilities) by the
 
number of shares of common stock outstanding.
Our historical net tangible book value as of June 30, 2023
 
was $35.0 million, or $0.28 per share. After
giving effect to the assumed sale by us of $100,000,000
 
of Class A common stock at an assumed public
offering price of $2.56 per share, which was the
 
last reported sale price of our Class A common stock
 
on
Nasdaq on August 4, 2023, and after deducting estimated commissions
 
and estimated offering expenses
payable by us, our as adjusted net tangible book value
 
as of June 30, 2023, would have been $130.7
million, or $0.79 per share, representing an immediate
 
increase in the as adjusted net tangible book value
of $0.51 per share attributable to the purchasers in this
 
offering and immediate dilution of $1.77 per share
to purchasers in this offering.
 
S-10
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies,
 
under which we may offer and sell our Class
 
A
common stock from time to time through Jefferies,
 
acting as agent. Pursuant to this prospectus
supplement and the accompanying prospectus, we may
 
offer and sell up to $100,000,000 of Class A
common stock. Sales of Class A common stock, if any,
 
under this prospectus supplement and the
accompanying prospectus will be made by any method that
 
is deemed to be an “at the market offering” as
defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to sell Class A common stock under
 
the sales agreement, we will notify Jefferies
 
of the
number of shares of Class A common stock to be sold,
 
the dates on which such sales are anticipated to
be made, any limitation on the number of shares of Class
 
A common stock to be sold in any one day and
any minimum price below which sales may not be made. Once
 
we have so instructed Jefferies, unless
Jefferies declines to accept the terms of such notice,
 
Jefferies has agreed to use its commercially
reasonable efforts consistent with its normal trading
 
and sales practices to sell such Class A common
stock up to the amount specified on such terms. The
 
obligations of Jefferies under the sales agreement
 
to
sell our Class A common stock are subject to a number
 
of conditions that we must meet.
The settlement of sales of Class A common stock between
 
us and Jefferies is generally anticipated to
occur on the second trading day following the date on
 
which the sale was made. Sales of Class A
common stock as contemplated in this prospectus supplement
 
will be settled through the facilities of The
Depository Trust Company or by such other
 
means as we and Jefferies may agree upon. There
 
is no
arrangement for funds to be received in an escrow,
 
trust or similar arrangement.
We will pay Jefferies a commission
 
of 3.0% of the aggregate gross proceeds we receive from
 
each sale
of Class A common stock. Because there is no minimum offering
 
amount required as a condition to close
this offering, the actual total public offering
 
amount, commissions and proceeds to us, if any,
 
are not
determinable at this time. In addition, we have agreed
 
to reimburse Jefferies for the fees and
disbursements of its counsel, payable upon execution
 
of the sales agreement, in an amount not to
exceed $75,000, in addition to certain ongoing disbursements
 
of its legal counsel,
 
unless we and Jefferies
otherwise agree. We estimate that the total expenses
 
for the offering, excluding any commissions or
expense reimbursement payable to Jefferies
 
under the terms of the sales agreement, will be
approximately $1.3 million. The remaining proceeds, after
 
deducting any other transaction fees, will equal
our net proceeds from the sale of Class A common stock
 
in this offering.
Jefferies will provide written confirmation to us before
 
the open on Nasdaq on the day following each day
on which shares of Class A common stock are sold under
 
the sales agreement. Each confirmation will
include the number of shares of Class A common stock
 
sold on that day, the
 
aggregate gross proceeds of
such sales and the proceeds to us.
In connection with the sale of Class A common stock on
 
our behalf, Jefferies will be deemed to be
 
an
“underwriter” within the meaning of the Securities Act,
 
and the compensation of Jefferies will be deemed
to be underwriting commissions or discounts. We have
 
agreed to indemnify Jefferies against certain
liabilities, including civil liabilities under the Securities
 
Act. We have also agreed to contribute to payments
Jefferies may be required to make in respect of
 
such liabilities.
The offering of Class A common stock pursuant
 
to the sales agreement will terminate upon the earlier
 
of
(i) the sale of all Class A common stock subject to the
 
sales agreement and (ii) the termination of the
sales agreement as permitted therein.
This summary of the material provisions of the sales agreement
 
does not purport to be a complete
statement of its terms and conditions. A copy of the sales
 
agreement is filed as an exhibit to the
registration statement of which this prospectus supplement forms
 
a part.
Jefferies and its affiliates may in the future
 
provide various investment banking, commercial banking,
financial advisory and other financial services for us and
 
our affiliates, for which services they may
 
in the
future receive customary fees. In the course of its business,
 
Jefferies may actively trade our securities for
S-11
its own account or for the accounts of customers, and,
 
accordingly, Jefferies
 
may at any time hold long or
short positions in such securities.
A prospectus supplement and the accompanying prospectus
 
in electronic format may be made available
on a website maintained by Jefferies, and Jefferies
 
may distribute the prospectus supplement and the
accompanying prospectus electronically.
 
S-12
VALIDITY OF SECURITIES
The validity of the Class A common stock covered by this
 
prospectus supplement and the accompanying
prospectus will be passed on for us by Davis Polk & Wardwell
 
LLP,
 
New York,
 
New York.
 
Jefferies LLC is
being represented in connection with this offering
 
by Cooley LLP,
 
New York,
 
New York.
EXPERTS
The consolidated financial statements of Vaxxinity,
 
Inc. as of December 31, 2022 and 2021, and for each
of the years in the two-year period ended December 31,
 
2022, have been incorporated by reference
herein in reliance upon the report of Armanino LLP,
 
independent registered public accounting firm,
incorporated by reference herein, and upon the authority
 
of said firm as experts in accounting and
auditing.
 
S-13
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
 
proxy statements and other information with the SEC. The
SEC maintains a website at
www.sec.gov
 
that contains reports, proxy and information statements
 
and
other information we have filed electronically with the SEC.
The SEC allows us to “incorporate by reference” the information
 
we file with them, which means that we
can disclose important information to you by referring you to
 
those documents. The information
incorporated by reference is an important part of this prospectus
 
supplement, and information that we file
later with the SEC will automatically update and supersede
 
this information. We incorporate by reference
the documents listed below and all documents we file pursuant
 
to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act between the date of the initial filing of the
 
registration statement of which this prospectus
supplement and the accompanying prospectus forms a part
 
and the effectiveness of such registration
statement and on or after the date of this prospectus supplement
 
and prior to the termination of the
offering under this prospectus supplement and
 
the accompanying prospectus (other than, in each case,
documents or information deemed to have been furnished
 
and not filed in accordance with SEC rules):
(a)
 
our
(b)
 
our
 
(solely with
respect to those portions incorporated by reference
 
into our Annual Report on Form 10-K for the
year ended December 31, 2022);
(c)
 
our Quarterly Reports on Form 10-Q for the quarters ended
 
and June 30, 2023;
(d)
 
our Current Reports on Form 8-K filed with the SEC on
,
 
and
; and
(e)
 
the description of our Class A common stock contained
 
in our
, including any amendments or reports filed for the
purposes of updating such description.
Any statement contained in this prospectus supplement
 
or in any document incorporated or deemed to be
incorporated by reference into this prospectus supplement will
 
be deemed modified or superseded for the
purposes of this prospectus supplement to the extent that a
 
statement contained in this prospectus
supplement or any subsequently filed document which also
 
is, or is deemed to be, incorporated by
reference into this prospectus supplement modifies or supersedes
 
that statement. Any statement so
modified or superseded will not be deemed, except as so
 
modified or superseded, to constitute a part of
this prospectus supplement.
You can obtain
 
any of the filings incorporated by reference in this prospectus
 
supplement through us or
from the SEC through the SEC’s website at
www.sec.gov
. Our filings with the SEC, including our Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q,
 
Current Reports on Form 8-K, and exhibits
incorporated in and amendments to those reports, are also available
 
free of charge on our website
(
www.vaxxinity.com
) as soon as reasonably practicable after they are
 
filed with, or furnished to, the SEC.
Information on, or accessible through, our website is not part
 
of this prospectus supplement, nor is such
content incorporated by reference in this prospectus supplement,
 
and should not be relied upon in
determining whether to make an investment in our securities.
 
You can
 
obtain any of the documents
incorporated by reference into this prospectus supplement from
 
us without charge, excluding any exhibits
to those documents unless the exhibit is specifically incorporated
 
by reference into those documents. You
can obtain documents incorporated by reference into this prospectus
 
supplement by requesting them in
writing or by telephone from us at the following address:
Investor Relations
Vaxxinity,
 
Inc.
505 Odyssey Way
S-14
Merritt Island, Florida 32953
(254) 244-5739
 
 
 
 
vaxxs3082023p3i0
VAXXINITY,
 
INC.
Up to $100,000,000
Class A Common Stock
PROSPECTUS
Jefferies
 
, 2023
 
 
 
 
 
II-1
 
PART II
INFORMATION NOT
 
REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable
 
by the Registrant in connection with the
sale of the securities being registered hereby.
Amount to Be Paid
Registration fee
 
................................................................................
 
$
 
33,060
FINRA filing fee
 
................................................................................
 
45,500
Printing expenses
 
.............................................................................
 
(1)
Legal fees and expenses .................................................................
 
(1)
Accounting fees and expenses ........................................................
 
(1)
Miscellaneous ..................................................................................
 
(1)
TOTAL
 
..........................................................................................
$
 
(1)
(1)
 
These fees and expenses depend on the securities
 
offered and the number of issuances, and
accordingly cannot be estimated at this time and will
 
be reflected in the applicable prospectus
supplement.
Item 15. Indemnification of Directors and Officers
We have entered into indemnification agreements
 
with each of our current directors and executive
officers. These agreements require us to indemnify
 
these individuals to the fullest extent permitted under
Delaware law against liabilities that may arise by reason
 
of their service to us, and to advance expenses
incurred as a result of any proceeding against them as
 
to which they could be indemnified. We also
intend to enter into indemnification agreements with our
 
future directors and executive officers.
Section 145 of the Delaware General Corporation Law
 
(the “DGCL”) provides that a corporation may
indemnify directors and officers as well as other
 
employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid
 
in settlement actually and reasonably incurred by
such person in connection with any threatened, pending or completed
 
actions, suits or proceedings in
which such person is made a party by reason of such person
 
being or having been a director,
 
officer,
employee or agent to the registrant. The DGCL provides
 
that Section 145 is not exclusive of other rights
to which those seeking indemnification may be entitled
 
under any bylaw, agreement,
 
vote of stockholders
or disinterested directors or otherwise. Our Bylaws provide
 
for indemnification by the registrant of its
directors, officers and employees to the fullest extent
 
permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide
 
in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
 
or its stockholders for monetary
damages for breach of fiduciary duty as a director,
 
except for liability (1) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (2)
 
for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
 
(3) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions or
 
(4) for any transaction from which the
director derived an improper personal benefit. Our Charter provides
 
for such limitation of liability.
We maintain standard policies of insurance under which
 
coverage is provided (a) to our directors and
officers against loss arising from claims made
 
by reason of breach of duty or other wrongful act and
 
(b) to
us with respect to payments we may make to our officers
 
and directors pursuant to the above
indemnification provision or otherwise as a matter of law.
Any underwriting agreement that we may enter into may
 
provide for indemnification of our directors and
officers by the underwriters against certain liabilities.
 
 
II-2
 
Item 16. Exhibits
 
The following exhibits are filed as part of this Registration
 
Statement:
Exhibit No.
Document
1.1*
Form of Underwriting Agreement
1.2
4.1
Amended and Restated Certificate of Incorporation of
 
Vaxxinity,
 
Inc. (
4.2
Amended and Restated Bylaws of Vaxxinity,
 
Inc. (
4.3
4.4*
Form of Note
4.5*
Form of Warrant Agreement
4.6*
Form of Subscription Rights Agreement
4.7*
Form of Unit Agreement
5.1
23.1
23.2
Consent of Davis Polk & Wardwell LLP (included
 
in
24.1
Power of Attorney (included on the signature page of the
 
Registration Statement)
25.1**
Statement of Eligibility on Form T-1
 
of the Trustee for the Indenture
107
*
 
To
 
be filed, if necessary,
 
as an exhibit to a post-effective amendment
 
to this registration statement or
as an exhibit to a Current Report on Form 8-K and incorporated
 
by reference herein.
**
 
To
 
be filed in accordance with the requirements of Section
 
305(b)(2) of the Trust Indenture Act.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales
 
are being made of securities registered hereby,
a post-effective amendment to this registration statement:
 
(i)
To
include any prospectus required by Section 10(a)(3)
 
of the Securities Act of 1933;
(ii)
To
reflect in the prospectus any facts or events arising
 
after the effective date of the
registration statement (or the most recent post-effective
 
amendment thereof) which,
individually or in the aggregate, represent a fundamental
 
change in the information set forth
in the registration statement. Notwithstanding the foregoing,
 
any increase or decrease in
volume of securities offered (if the total dollar value
 
of securities offered would not exceed
that which was registered) and any deviation from the low
 
or high end of the estimated
maximum offering range may be reflected in the
 
form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) if,
 
in the aggregate, the changes in
volume and price represent no more than a 20 percent
 
change in the maximum aggregate
offering price set forth in the “Calculation of
 
Registration Fee” table in the effective
registration statement; and
 
(iii)
To
include any material information with respect to the
 
plan of distribution not previously
disclosed in the registration statement or any material
 
change to such information in the
registration statement;
provided, however,
 
that paragraphs (i), (ii) and (iii) above do not apply
 
if the information
required to be included in a post-effective amendment
 
by those paragraphs is contained
in periodic reports filed with or furnished to the Securities
 
and Exchange Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
 
Securities Exchange Act of
II-3
 
1934 that are incorporated by reference in this registration
 
statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
 
part of the registration statement.
(2)
 
That, for the purpose of determining any liability under
 
the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a
 
new registration statement relating to the securities
offered herein, and the offering of such
 
securities at that time shall be deemed to be the
 
initial
bona fide offering thereof.
(3)
To
remove from registration by means of a post-effective
 
amendment any of the securities being
registered which remain unsold at the termination of
 
the offering.
(4)
 
That, for the purpose of determining liability under the Securities
 
Act of 1933 to any purchaser:
(i)
 
Each prospectus filed by the registrant pursuant to Rule
 
424(b)(3) shall be deemed to be part
of the registration statement as of the date the filed prospectus
 
was deemed part of and
included in the registration statement; and
(ii)
 
Each prospectus required to be filed pursuant to Rule
 
424(b)(2), (b)(5) or (b)(7) as part of a
registration statement in reliance on Rule 430B relating
 
to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the
 
information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part
 
of and included in the registration
statement as of the earlier of the date such form of prospectus
 
is first used after effectiveness
or the date of the first contract of sale of securities in the
 
offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
 
issuer and any person that is at that
date an underwriter, such date
 
shall be deemed to be a new effective date
 
of the registration
statement relating to the securities in the registration statement
 
to which that prospectus
relates, and the offering of such securities at that time
 
shall be deemed to be the initial bona
fide offering thereof. Provided, however,
 
that no statement made in a registration statement
or prospectus that is part of the registration statement
 
or made in a document incorporated or
deemed incorporated by reference into the registration
 
statement or prospectus that is part of
the registration statement will, as to a purchaser with
 
a time of contract of sale prior to such
effective date, supersede or modify any statement
 
that was made in the registration
statement or prospectus that was part of the registration
 
statement or made in any such
document immediately prior to such effective
 
date.
(5)
 
That, for the purpose of determining liability of the registrant
 
under the Securities Act of 1933 to
any purchaser in the initial distribution of the securities,
 
the undersigned registrant undertakes
that in a primary offering of securities of the undersigned
 
registrant pursuant to this registration
statement, regardless of the underwriting method used
 
to sell the securities to the purchaser,
 
if
the securities are offered or sold to such purchaser
 
by means of any of the following
communications, the undersigned registrant will be a
 
seller to the purchaser and will be
considered to offer or sell such securities to such
 
purchaser:
(i)
 
Any preliminary prospectus or prospectus of the undersigned
 
registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii)
 
Any free writing prospectus relating to the offering
 
prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
 
registrant;
(iii)
 
The portion of any other free writing prospectus relating to the
 
offering containing material
information about the undersigned registrant or its securities
 
provided by or on behalf of the
undersigned registrant; and
(iv)
 
Any other communication that is an offer
 
in the offering made by the undersigned
 
registrant to
the purchaser.
II-4
 
The undersigned Registrant hereby undertakes that, for
 
purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual
 
report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
 
each filing of an employee benefit
plan’s annual report pursuant to Section 15(d)
 
of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement
 
shall be deemed to be a new registration
statement relating to the securities offered therein,
 
and the offering of such securities at that time
 
shall be
deemed to be the initial bona fide offering
 
thereof.
Insofar as indemnification for liabilities arising under the
 
Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
 
pursuant to the foregoing provisions, or
otherwise, the registrants have been advised that in the
 
opinion of the Securities and Exchange
Commission such indemnification is against public policy
 
as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
 
against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
 
officer or controlling person of the registrant
 
in
the successful defense of any action, suit or proceeding)
 
is asserted by such director,
 
officer or controlling
person in connection with the securities being registered,
 
the registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent,
 
submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against
 
public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application
 
for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
 
310 of the Trust Indenture Act in
 
accordance
with the rules and regulations prescribed by the Securities
 
and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
 
 
 
 
 
 
 
 
 
 
 
 
 
II-5
 
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
 
the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements
 
for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the
 
undersigned, thereunto duly authorized, in Merritt
Island, Florida, on August 9, 2023.
Vaxxinity,
 
Inc.
By:
/s/ Mei Mei Hu
Name:
 
Mei Mei Hu
Title:
 
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each
 
person whose signature appears below
constitutes and appoints Mei Mei Hu, Louis Reese, René Paula
 
Molina and Jason Pesile and each of
them, his or her true and lawful attorneys-in-fact and agents, with
 
full power of substitution and
resubstitution, for him or her and in his or her name, place
 
and stead, in any and all capacities, to sign
any and all amendments (including post-effective
 
amendments) to this registration statement and any
 
and
all additional registration statements pursuant to Rule
 
462(b) of the Securities Act of 1933, and to file the
same, with all exhibits thereto, and all other documents
 
in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and
 
agent full power and authority to do
and perform each and every act in person, hereby ratifying and
 
confirming all that said attorneys-in-fact
and agents or any of them or his or her or their substitute or substitutes
 
may lawfully do or cause to be
done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933,
 
this registration statement has been signed by
the following persons in the capacities on August 9, 2023
 
.
Signature
Title
/s/ Mei Mei Hu
Chief Executive Officer and Director
(principal executive officer)
Mei Mei Hu
/s/ Jason Pesile
Senior Vice President, Finance and Accounting
(principal financial officer and principal accounting
 
officer)
Jason Pesile
/s/ Louis Reese
Executive Chairman
Louis Reese
/s/ Peter Diamandis
Director
Peter Diamandis
/s/ Katherine Eade
Director
Katherine Eade
/s/ George Hornig
Director
George Hornig
/s/ Landon Ogilvie
Director
Landon Ogilvie
/s/ Peter Powchik
Director
Peter Powchik
/s/ James Smith
Director
James Smith
/s/ Gabrielle Toledano
Director
Gabrielle Toledano
exhibit12
 
 
 
Exhibit 1.2
OPEN MARKET SALE AGREEMENT
SM
August 9, 2023
JEFFERIES LLC
 
520 Madison Avenue
New York,
 
New York
 
10022
 
Ladies and Gentlemen:
 
Vaxxinity,
 
Inc.,
 
a Delaware corporation
 
(the “
Company
”), proposes, subject to
 
the terms
and conditions
 
stated herein,
 
to issue
 
and sell
 
from time
 
to time
 
through Jefferies
 
LLC, as
 
sales
agent and/or principal (the “
Agent
”), shares of the
 
Company’s Class
 
A common stock, par value
$0.0001
 
per
 
share
 
(the
 
Common
 
Shares
”),
 
on
 
the
 
terms
 
set
 
forth
 
in
 
this
 
agreement
 
(this
Agreement
”).
Section 1.
 
DEFINITIONS
(a)
 
Certain Definitions.
 
For purposes of this Agreement,
 
capitalized terms used herein
and not otherwise defined shall have the following respective meanings:
Affiliate
 
of
 
a
 
Person
 
means
 
another
 
Person
 
that
 
directly
 
or
 
indirectly,
 
through
 
one
 
or
more
 
intermediaries,
 
controls,
 
is
 
controlled
 
by,
 
or
 
is
 
under
 
common
 
control
 
with,
 
such
 
first-
mentioned
 
Person.
 
The
 
term
 
“control”
 
(including
 
the
 
terms
 
“controlling,”
 
“controlled
 
by”
 
and
“under common control
 
with”) means the
 
possession, direct or
 
indirect, of the
 
power to direct
 
or
cause the direction of the
 
management and policies of a
 
Person, whether through the ownership of
voting securities, by contract or otherwise.
Agency
 
Period
 
means
 
the
 
period
 
commencing
 
on
 
the
 
date
 
of
 
this
 
Agreement
 
and
expiring on the
 
earliest to occur
 
of (x) the
 
date on which
 
the Agent
 
shall have placed
 
the Maximum
Program
 
Amount
 
pursuant
 
to
 
this
 
Agreement
 
and
 
(y)
 
the
 
date
 
this
 
Agreement
 
is
 
terminated
pursuant to Section 7.
Commission
” means the U.S. Securities and Exchange Commission.
Exchange Act
” means
 
the Securities
 
Exchange Act
 
of 1934,
 
as amended,
 
and the
 
rules
and regulations of the Commission thereunder.
Floor Price
” means the minimum
 
price set by
 
the Company in the
 
Issuance Notice below
which the Agent shall not sell Shares
 
during the applicable period set forth
 
in the Issuance Notice,
which may
 
be
 
adjusted
 
by the
 
Company at
 
any time
 
during the
 
period set
 
forth in
 
the
 
Issuance
Notice by delivering
 
written notice of
 
such change to
 
the Agent and
 
which in no
 
event shall be
 
less
than $1.00 without the
 
prior written consent of
 
the Agent, which may
 
be withheld in the
 
Agent’s
sole discretion.
_______________________________
SM “Open Market Sale Agreement” is a service mark of Jefferies LLC
 
2
 
Issuance Amount
” means
 
the aggregate
 
Sales Price
 
of the
 
Shares to
 
be sold by
 
the Agent
pursuant to any Issuance Notice.
Issuance
 
Notice
 
means
 
a
 
written
 
notice
 
delivered
 
to
 
the
 
Agent
 
by
 
the
 
Company
 
in
accordance with
 
this Agreement
 
in the
 
form attached
 
hereto as
 
Exhibit A
 
that is
 
executed by
 
its
principal executive officer or principal financial officer.
Issuance Notice
 
Date
” means
 
any Trading
 
Day during
 
the Agency
 
Period that
 
an Issuance
Notice is delivered pursuant to Section 3(b)(i).
 
Issuance Price
” means the Sales Price less the Selling Commission.
Maximum Program Amount
” means Common Shares with an aggregate Sales Price of
the lesser
 
of
 
(a) the
 
number or
 
dollar
 
amount of
 
Common
 
Shares registered
 
under the
 
effective
Registration
 
Statement
 
(defined
 
below)
 
pursuant
 
to
 
which
 
the
 
offering
 
is
 
being
 
made,
 
(b)
 
the
number of authorized but unissued
 
Common Shares (less Common Shares
 
issuable upon exercise,
conversion or exchange of any outstanding securities of the Company or otherwise reserved from
the
 
Company’s
 
authorized
 
capital
 
stock),
 
(c)
 
the
 
number
 
or
 
dollar
 
amount
 
of
 
Common
 
Shares
permitted to be
 
sold under Form S-3
 
(including General Instruction I.B.6
 
thereof, if applicable),
 
or
(d) the number
 
or dollar amount of
 
Common Shares for
 
which the Company
 
has filed a
 
Prospectus
(defined below).
Person
 
means
 
an
 
individual
 
or
 
a
 
corporation,
 
partnership,
 
limited
 
liability
 
company,
trust, incorporated
 
or unincorporated
 
association, joint
 
venture, joint
 
stock company, governmental
authority or other entity of any kind.
Principal
 
Market
 
means
 
The
 
Nasdaq
 
Stock
 
Market
 
LLC
 
or
 
such
 
other
 
national
securities exchange on which the Common Shares, including any Shares, are then listed.
Sales
 
Price
 
means
 
the
 
actual
 
sale
 
execution
 
price
 
of
 
each
 
Share
 
placed
 
by
 
the
 
Agent
pursuant to this Agreement.
Securities
 
Act
 
means
 
the
 
Securities
 
Act
 
of
 
1933,
 
as
 
amended,
 
and
 
the
 
rules
 
and
regulations of the Commission thereunder.
Selling Commission
” means
 
three percent
 
(3.0%) of
 
the gross
 
proceeds of
 
Shares sold
pursuant
 
to
 
this
 
Agreement,
 
or
 
as
 
otherwise
 
agreed
 
between
 
the
 
Company
 
and
 
the
 
Agent
 
with
respect to any Shares sold pursuant to this Agreement.
 
Settlement Date
” means the
 
second business
 
day following each
 
Trading Day during
 
the
period set forth in the Issuance
 
Notice on which Shares are sold pursuant
 
to this Agreement, when
the Company
 
shall deliver
 
to the
 
Agent the
 
amount of
 
Shares sold
 
on such
 
Trading Day
 
and the
Agent shall deliver to the Company the Issuance Price received on such sales.
Shares
” shall
 
mean the
 
Company’s
 
Common Shares
 
issued or
 
issuable pursuant
 
to this
Agreement.
Trading Day
” means any day on which the Principal Market is open for trading.
 
3
Section 2.
 
REPRESENTATIONS
 
AND WARRANTIES
 
OF THE COMPANY
 
The Company represents and warrants
 
to, and agrees with, the
 
Agent that as of (1)
 
the date
of this Agreement,
 
(2) each
 
Issuance Notice Date,
 
(3) each Settlement
 
Date, (4)
 
each Triggering
Event
 
Date
 
(as
 
defined
 
below)
 
with
 
respect
 
to
 
which
 
the
 
Company
 
is
 
required
 
to
 
deliver
 
a
certificate pursuant to Section 4(o), and
 
(5) as of each Time
 
of Sale (each of the times
 
referenced
above
 
is
 
referred
 
to
 
herein
 
as
 
a
 
Representation
 
Date
”),
 
except
 
as
 
may
 
be
 
disclosed
 
in
 
the
Prospectus
 
(including
 
any
 
documents
 
incorporated
 
by
 
reference
 
therein
 
and
 
any
 
supplements
thereto) on or before a Representation Date:
 
(a)
 
Registration Statement.
 
The Company has prepared and filed, or
 
will file, with the
Commission a shelf registration statement
 
on Form S-3 that contains a base
 
prospectus (the “
Base
Prospectus
”).
 
Such registration statement
 
registers the offering
 
and sale by
 
the Company of
 
the
Shares
 
under
 
the
 
Securities
 
Act.
 
The
 
Company
 
may
 
file
 
one
 
or
 
more
 
additional
 
registration
statements
 
from
 
time
 
to
 
time
 
that
 
will
 
contain
 
a
 
base
 
prospectus
 
and
 
related
 
prospectus
 
or
prospectus
 
supplement,
 
if
 
applicable,
 
with
 
respect
 
to
 
the
 
Shares.
 
Except
 
where
 
the
 
context
otherwise requires, such
 
registration statement(s), including
 
any information deemed to
 
be a part
thereof pursuant to
 
Rule 430B under
 
the Securities Act,
 
including all financial
 
statements, exhibits
and
 
schedules
 
thereto
 
and
 
all
 
documents
 
incorporated
 
or
 
deemed
 
to
 
be
 
incorporated
 
therein
 
by
reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended
or
 
supplemented,
 
is
 
herein
 
referred
 
to
 
as
 
the
 
Registration
 
Statement,
 
and
 
the
 
prospectus
supplement
 
relating
 
to
 
the
 
sale
 
of
 
the
 
Shares
 
and
 
constituting
 
a
 
part
 
of
 
such
 
registration
statement(s),
 
together
 
with
 
the
 
Base
 
Prospectus
 
and
 
any
 
prospectus
 
supplement
 
filed
 
with
 
the
Commission pursuant
 
to Rule
 
424(b) under
 
the Securities
 
Act relating
 
to a
 
particular offering
 
of
the Shares,
 
including all
 
documents incorporated
 
or deemed
 
to be
 
incorporated therein
 
by reference
pursuant
 
to
 
Item
 
12
 
of
 
Form
 
S-3
 
under
 
the
 
Securities
 
Act,
 
in
 
each
 
case,
 
as
 
from
 
time
 
to
 
time
amended or
 
supplemented,
 
is
 
referred to
 
herein as
 
the
 
Prospectus,
 
except
 
that
 
if
 
any
 
revised
prospectus is provided to the Agent by
 
the Company for use in connection
 
with the offering of the
Shares that is
 
not required to
 
be filed by
 
the Company pursuant
 
to Rule 424(b)
 
under the Securities
Act, the term “
Prospectus
” shall refer to such revised prospectus from and after
 
the time it is first
provided
 
to
 
the
 
Agent
 
for
 
such
 
use.
 
As
 
used
 
in
 
this
 
Agreement,
 
the
 
terms
 
“amendment”
 
or
“supplement” when
 
applied
 
to
 
the
 
Registration
 
Statement or
 
the
 
Prospectus
 
shall
 
be
 
deemed to
include the filing by the
 
Company with the Commission
 
of any document under
 
the Exchange Act
after the date hereof that is or is deemed to be incorporated therein by reference.
All
 
references
 
in
 
this
 
Agreement
 
to
 
financial
 
statements
 
and
 
schedules
 
and
 
other
information
 
which
 
is
 
“contained,”
 
“included”
 
or
 
“stated”
 
in
 
the
 
Registration
 
Statement
 
or
 
the
Prospectus (and all other references
 
of like import) shall be
 
deemed to mean and include
 
all such
financial statements and schedules and
 
other information which is or
 
is deemed to be incorporated
by reference
 
in or
 
otherwise
 
deemed under
 
the
 
Securities Act
 
to be
 
a part
 
of or
 
included in
 
the
Registration
 
Statement
 
or
 
the
 
Prospectus,
 
as
 
the
 
case
 
may
 
be,
 
as
 
of
 
any
 
specified
 
date;
 
and
 
all
references in this
 
Agreement to amendments
 
or supplements to
 
the Registration Statement or
 
the
Prospectus shall
 
be deemed
 
to mean
 
and include,
 
without limitation,
 
the filing
 
of any
 
document
under the
 
Exchange
 
Act
 
which
 
is
 
or
 
is
 
deemed to
 
be
 
incorporated by
 
reference
 
in
 
or
 
otherwise
deemed under
 
the Securities
 
Act to
 
be a
 
part of
 
or included
 
in the
 
Registration Statement
 
or the
Prospectus, as the case may be, as of any specified date.
 
 
 
 
4
At the time the Registration
 
Statement was or will be
 
declared effective and at the time the
Company’s
 
most recent annual report
 
on Form 10-K
 
was filed with
 
the Commission, if
 
later, the
Company
 
met
 
the
 
then-applicable
 
requirements
 
for
 
use
 
of
 
Form
 
S-3
 
under
 
the
 
Securities
 
Act.
 
During
 
the
 
Agency
 
Period,
 
each
 
time
 
the
 
Company
 
files
 
an
 
annual
 
report
 
on
 
Form
 
10-K
 
the
Company will meet
 
the then-applicable requirements
 
for use of
 
Form S-3
 
under the Securities
 
Act.
(b)
 
Compliance with Registration Requirements.
 
The Registration Statement and any
registration
 
statement
 
filed
 
pursuant
 
to
 
Rule
 
462(b)
 
under
 
the
 
Securities
 
Act
 
(“
Rule
 
462(b)
Registration Statement
”) have been
 
declared effective
 
by the
 
Commission under
 
the Securities
Act.
 
The
 
Company
 
has
 
complied
 
to
 
the
 
Commission’s
 
satisfaction
 
with
 
all
 
requests
 
of
 
the
Commission for additional or supplemental
 
information in connection therewith, if
 
any.
 
No stop
order suspending the effectiveness
 
of the Registration Statement
 
or any Rule 462(b)
 
Registration
Statement is in effect and no proceedings for such purpose have been instituted or are pending or,
to the best knowledge of the Company, are contemplated or threatened by the Commission.
 
The
 
Prospectus,
 
when
 
filed,
 
complied
 
or
 
will
 
comply
 
in
 
all
 
material
 
respects
 
with
 
the
Securities Act and, if
 
filed with the
 
Commission through its
 
Electronic Data Gathering, Analysis
and
 
Retrieval
 
system
 
(“
EDGAR
”)
 
(except
 
as
 
may
 
be
 
permitted
 
by
 
Regulation
 
S-T
 
under
 
the
Securities Act), was identical
 
to the copy thereof
 
delivered to the Agent
 
for use in connection
 
with
the
 
offering
 
and
 
sale
 
of
 
the
 
Shares.
 
Each
 
of
 
the
 
Registration
 
Statement,
 
any
 
Rule
 
462(b)
Registration
 
Statement
 
and
 
any
 
post-effective
 
amendment
 
thereto,
 
at
 
the
 
time
 
it
 
became
 
or
becomes
 
effective
 
and
 
at
 
each
 
Representation
 
Date,
 
complied
 
and
 
will
 
comply
 
in
 
all
 
material
respects with the
 
Securities Act and did
 
not and will not
 
contain any untrue statement
 
of a material
fact or
 
omit to state
 
a material
 
fact required
 
to be stated
 
therein or
 
necessary to make
 
the statements
therein not
 
misleading.
 
As of
 
the date
 
of this
 
Agreement, the
 
Prospectus and
 
any Free
 
Writing
Prospectus (as defined
 
below) considered together
 
(collectively, the “
Time of Sale Information
”)
did not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the
 
statements therein,
 
in the
 
light of
 
the circumstances
 
under which
 
they were
 
made, not
misleading.
 
The Prospectus,
 
as amended
 
or supplemented,
 
as of
 
its date
 
and at
 
each Representation
Date, did not
 
and will not contain
 
any untrue statement of
 
a material fact
 
or omit to state
 
a material
fact
 
necessary
 
in
 
order
 
to
 
make
 
the
 
statements
 
therein,
 
in
 
the
 
light
 
of
 
the
 
circumstances
 
under
which they were
 
made, not
 
misleading.
 
The representations and
 
warranties set forth
 
in the three
immediately preceding sentences do not apply to
 
statements in or omissions from the Registration
Statement, any
 
Rule 462(b)
 
Registration Statement,
 
or any
 
post-effective
 
amendment thereto,
 
or
the
 
Prospectus,
 
or
 
any
 
amendments
 
or
 
supplements
 
thereto,
 
made
 
in
 
reliance
 
upon
 
and
 
in
conformity
 
with
 
information
 
relating
 
to
 
the
 
Agent
 
furnished
 
to
 
the
 
Company
 
in
 
writing
 
by
 
the
Agent
 
expressly
 
for
 
use
 
therein,
 
it
 
being
 
understood
 
and
 
agreed
 
that
 
the
 
only
 
such
 
information
furnished by the Agent to the Company consists
 
of the information described in Section 6 below.
 
There are no contracts or other documents
 
required to be described in the Prospectus
 
or to be filed
as exhibits to
 
the Registration Statement which
 
have not been described
 
or filed as
 
required. The
Registration
 
Statement
 
and
 
the
 
offer
 
and
 
sale
 
of
 
the
 
Shares
 
as
 
contemplated
 
hereby
 
meet
 
the
requirements of
 
Rule 415
 
under the
 
Securities Act
 
and comply
 
in all
 
material respects
 
with said
rule.
(c)
 
Ineligible Issuer
 
Status. The
 
Company is
 
not an
 
“ineligible issuer”
 
in connection
with the offering of the Shares pursuant to Rules 164, 405 and 433 under the Securities Act.
 
Any
Free Writing
 
Prospectus that
 
the Company
 
is required
 
to file
 
pursuant to
 
Rule 433(d)
 
under the
 
 
 
 
 
5
Securities Act
 
has been, or
 
will be, filed
 
with the Commission
 
in accordance
 
with the requirements
of the Securities Act.
 
Each Free Writing
 
Prospectus that the Company has filed, or is
 
required to
file, pursuant
 
to Rule
 
433(d) under
 
the Securities
 
Act or
 
that was
 
prepared by
 
or on
 
behalf of
 
or
used
 
or
 
referred
 
to
 
by
 
the
 
Company
 
complies
 
or
 
will
 
comply
 
in
 
all
 
material
 
respects
 
with
 
the
requirements of Rule 433 under the
 
Securities Act including timely filing with
 
the Commission or
retention where
 
required and legending,
 
and each
 
such Free Writing Prospectus,
 
as of
 
its issue date
and
 
at
 
each
 
Representation
 
Date
 
did
 
not,
 
does
 
not
 
and
 
will
 
not
 
include
 
any
 
information
 
that
conflicted,
 
conflicts
 
with
 
or
 
will
 
conflict
 
with
 
the
 
information
 
contained
 
in
 
the
 
Registration
Statement or
 
the Prospectus,
 
including any
 
document incorporated
 
by reference
 
therein.
 
Except
for the Free
 
Writing Prospectuses, if any, furnished to the Agent
 
before first use, the
 
Company has
not prepared, used or
 
referred to, and
 
will not, without
 
the Agent’s
 
prior consent, prepare,
 
use or
refer to, any Free Writing Prospectus.
(d)
 
Incorporated
 
Documents.
 
The
 
documents
 
incorporated
 
or
 
deemed
 
to
 
be
incorporated by reference in the Registration Statement
 
and the Prospectus, at the time
 
they were
filed with
 
the Commission,
 
complied in
 
all material
 
respects with
 
the requirements
 
of the
 
Exchange
Act, as
 
applicable, and,
 
when read
 
together with
 
the other
 
information in
 
the Prospectus,
 
do not
contain an untrue statement of a
 
material fact or omit to state
 
a material fact required to be
 
stated
therein or necessary
 
to make the
 
statements therein, in light
 
of the circumstances
 
under which they
were made, not misleading.
 
(e)
 
Exchange
 
Act
 
Compliance.
 
The
 
documents
 
incorporated
 
or
 
deemed
 
to
 
be
incorporated by
 
reference in
 
the Prospectus,
 
at the
 
time they
 
were or
 
hereafter are
 
filed with
 
the
Commission
 
complied
 
and
 
will
 
comply
 
in
 
all
 
material
 
respects
 
with
 
the
 
requirements
 
of
 
the
Exchange Act,
 
and, when
 
read together with
 
the other
 
information in
 
the Prospectus,
 
at the
 
time
the Registration Statement
 
and any
 
amendments thereto
 
become effective and
 
at each
 
Time of Sale
(as defined below),
 
as the case
 
may be, will
 
not contain an
 
untrue statement of
 
a material fact
 
or
omit to state a material fact required to be
 
stated therein or necessary to make the fact
 
required to
be
 
stated
 
therein
 
or
 
necessary
 
to
 
make
 
the
 
statements
 
therein,
 
in
 
the
 
light
 
of
 
the
 
circumstances
under which they were made, not misleading.
(f)
 
Emerging
 
Growth
 
Company
 
Status.
 
From
 
the
 
time
 
of
 
filing
 
of
 
the
 
Registration
Statement through the date hereof, the Company has been and
 
is an “emerging growth company,”
as defined in Section 2(a) of the Securities Act (an “
Emerging Growth Company
”).
 
(g)
 
Independent
 
Accountants.
 
Armanino
 
LLP,
 
or
 
such
 
other
 
accountants
 
(the
Accountants
”),
 
who
 
certified
 
or
 
reviewed
 
the
 
financial
 
statements
 
and
 
supporting
 
schedules
included
 
or
 
incorporated
 
by
 
reference
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
are
independent
 
public
 
accountants
 
as
 
required
 
by
 
the
 
Securities
 
Act
 
and
 
the
 
Public
 
Company
Accounting Oversight Board.
 
(h)
 
Financial
 
Statements;
 
Non-GAAP
 
Financial
 
Measures.
 
The
 
financial
 
statements
included or
 
incorporated by
 
reference in
 
the Registration
 
Statement and
 
the Prospectus,
 
together
with
 
the
 
related schedules
 
and
 
notes
 
thereto,
 
present
 
fairly
 
in
 
all
 
material
 
respects the
 
financial
position of the Company and its combined consolidated subsidiaries at the dates
 
indicated and the
statement of
 
operations,
 
stockholders’ equity
 
and
 
cash flows
 
of
 
the Company
 
and its
 
combined
consolidated subsidiaries
 
for the
 
periods specified;
 
said financial
 
statements have
 
been prepared
 
 
 
6
in
 
conformity
 
with
 
U.S.
 
generally
 
accepted
 
accounting
 
principles
 
(“
GAAP
”)
 
applied
 
on
 
a
consistent basis throughout
 
the periods involved.
 
The supporting schedules,
 
if any,
 
present fairly
in all
 
material respects
 
in
 
accordance with
 
GAAP
 
the information
 
required to
 
be stated
 
therein.
Except as included therein,
 
no historical or pro
 
forma financial statements or
 
supporting schedules
are
 
required
 
to
 
be
 
included
 
or
 
incorporated
 
by
 
reference
 
in
 
the
 
Registration
 
Statement
 
or
 
the
Prospectus
 
under
 
the
 
Securities
 
Act.
 
The
 
interactive
 
data
 
in
 
eXtensible
 
Business
 
Reporting
Language included or
 
incorporated by reference
 
in the
 
Registration Statement fairly
 
presents the
information
 
called
 
for
 
in
 
all
 
material
 
respects
 
and
 
has
 
been
 
prepared
 
in
 
accordance
 
with
 
the
Commission’s rules and guidelines applicable thereto.
(i)
 
No Material Adverse Effect on Business.
 
Except as otherwise stated therein, since
the
 
respective
 
dates
 
as
 
of
 
which
 
information
 
is
 
given
 
in
 
the
 
Registration
 
Statement
 
or
 
the
Prospectus, (A) there has
 
been no material adverse
 
change in the condition,
 
financial or otherwise,
or
 
in
 
the
 
earnings,
 
business
 
affairs
 
or
 
business
 
prospects
 
of
 
the
 
Company
 
and
 
its
 
subsidiaries
considered as
 
one enterprise,
 
whether or
 
not arising
 
in the
 
ordinary course
 
of business (a
 
Material
Adverse Effect
”), (B) there have
 
been no transactions entered
 
into by the Company
 
or any of its
subsidiaries, other
 
than those
 
in the
 
ordinary course
 
of business,
 
which are
 
material with
 
respect
to
 
the
 
Company
 
and
 
its
 
subsidiaries
 
considered
 
as
 
one
 
enterprise,
 
and
 
(C)
 
there
 
has
 
been
 
no
dividend or
 
distribution of
 
any kind
 
declared, paid
 
or made
 
by the
 
Company on
 
any class
 
of its
capital stock.
 
(j)
 
Good Standing of
 
the Company.
 
The Company has
 
been duly incorporated
 
and is
validly existing as a corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and
 
to conduct its business
as
 
described in
 
the
 
Registration
 
Statement
 
and
 
the Prospectus
 
and
 
to
 
enter
 
into
 
and
 
perform
 
its
obligations under this
 
Agreement; and the
 
Company is
 
duly qualified as
 
a foreign corporation
 
to
transact business and
 
is in good
 
standing in each
 
other jurisdiction in
 
which such qualification
 
is
required, whether
 
by reason
 
of the
 
ownership or
 
leasing of
 
property or
 
the conduct
 
of business,
except where the failure so to qualify or to be in good standing would not reasonably be expected
to result in a Material Adverse Effect.
 
(k)
 
Good Standing of
 
Subsidiaries. Each
 
“significant subsidiary”
 
of the
 
Company (as
such term is defined in Rule
 
1-02 of Regulation S-X) (each, a
 
subsidiary
” and, collectively,
 
the
subsidiaries
”) has been duly
 
organized and is validly existing
 
in good standing under
 
the laws of
the jurisdiction of
 
its incorporation or
 
organization, has
 
corporate or similar
 
power and authority
to own, lease and
 
operate its properties and to
 
conduct its business as described
 
in the Registration
Statement and the Prospectus and is duly
 
qualified to transact business and is
 
in good standing in
each jurisdiction
 
in which
 
such qualification
 
is required,
 
whether by
 
reason of
 
the ownership
 
or
leasing
 
of
 
property or
 
the
 
conduct
 
of
 
business,
 
in
 
each case
 
except
 
as
 
would
 
not
 
reasonably be
expected to result in a Material
 
Adverse Effect. Except as otherwise
 
disclosed in the Registration
Statement and the
 
Prospectus, all of
 
the issued and
 
outstanding capital stock
 
of each subsidiary
 
has
been
 
duly
 
authorized
 
and
 
validly
 
issued,
 
is
 
fully
 
paid
 
and
 
non-assessable
 
and
 
is
 
owned
 
by
 
the
Company,
 
directly
 
or
 
through
 
subsidiaries,
 
free
 
and
 
clear
 
of
 
any
 
security
 
interest,
 
mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any
subsidiary
 
were
 
issued
 
in
 
violation
 
of
 
the
 
preemptive
 
or
 
similar
 
rights
 
of
 
any
 
securityholder
 
of
such subsidiary. The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to
the Company’s most recent annual report on Form 10-K.
 
 
 
 
 
 
7
(l)
 
Capitalization. The authorized,
 
issued and outstanding
 
shares of capital
 
stock of the
Company are as set forth in the Registration Statement and the Prospectus (except for subsequent
issuances, if
 
any,
 
pursuant to
 
this Agreement,
 
pursuant to
 
reservations, agreements
 
or employee
benefit
 
plans
 
referred
 
to
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
or
 
pursuant
 
to
 
the
exercise of convertible
 
securities or options
 
or warrants referred
 
to in
 
the Registration Statement
and the Prospectus) and there are no outstanding warrants, options, other convertible securities or
other rights to acquire shares
 
of Common Shares that
 
have not been disclosed
 
in the Registration
Statement and the Prospectus. The outstanding shares
 
of capital stock of the Company
 
have been
duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding
shares of capital stock of the Company were issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
 
(m)
 
Authorization of
 
Agreement. This
 
Agreement has
 
been duly
 
authorized, executed
and delivered by the Company.
 
(n)
 
Authorization and
 
Description of
 
Shares. The
 
Shares subject
 
to any
 
Issuance Notice
have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by
 
the Company
 
pursuant to
 
this Agreement
 
against payment
 
therefor,
 
will be
 
validly
issued and fully paid and non-assessable; and the
 
issuance and sale of the Shares is
 
not subject to
the preemptive
 
or other similar
 
rights to subscribe
 
for or purchase
 
the Shares. The
 
Common Shares
conform
 
in
 
all
 
material
 
respects
 
to
 
all
 
statements
 
relating
 
thereto
 
contained
 
in
 
the
 
Registration
Statement and the
 
Prospectus and such
 
description conforms in
 
all material respects
 
to the rights
set forth in the instrument defining the same.
 
(o)
 
Registration Rights.
 
There are
 
no persons
 
with registration
 
rights or
 
other similar
rights to have any securities
 
registered for sale pursuant
 
to the Registration Statement,
 
other than
those rights
 
that have
 
been disclosed
 
in the
 
Registration Statement
 
and the
 
Prospectus and
 
have
been waived.
 
(p)
 
Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is
 
(A) in
 
violation of
 
its charter,
 
by-laws or
 
similar organizational
 
document, (B)
 
in
default
 
in
 
the
 
performance
 
or
 
observance
 
of
 
any
 
obligation,
 
agreement,
 
covenant
 
or
 
condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
 
note, lease
or other agreement or instrument to which the
 
Company or any of its subsidiaries is
 
a party or by
which it or any of them may be bound or to which any of the properties or assets of the Company
or
 
any
 
subsidiary
 
is
 
subject
 
(collectively,
 
Agreements
 
and
 
Instruments
”),
 
except
 
for
 
such
defaults that would
 
not, singly or
 
in the aggregate,
 
reasonably be expected to
 
result in a
 
Material
Adverse Effect,
 
or (C)
 
in violation
 
of any
 
law,
 
statute, rule,
 
regulation, judgment,
 
order,
 
writ or
decree of
 
any arbitrator,
 
court, governmental
 
body, regulatory body, administrative
 
agency or
 
other
authority,
 
body or agency
 
having jurisdiction over
 
the Company or
 
any of its
 
subsidiaries or any
of their
 
respective properties,
 
assets or
 
operations (each,
 
a “
Governmental Entity
”), except
 
for
such violations
 
that would
 
not, singly
 
or in
 
the aggregate,
 
reasonably be
 
expected to
 
result in
 
a
Material
 
Adverse
 
Effect.
 
The
 
execution,
 
delivery
 
and
 
performance
 
of
 
this
 
Agreement
 
and
 
the
issuance and
 
sale of
 
the Shares
 
subject to
 
any Issuance
 
Notice and
 
the use
 
of the
 
proceeds from
the sale of such Shares as described therein under the caption “Use of Proceeds”) and compliance
by
 
the
 
Company
 
with
 
its
 
obligations
 
hereunder
 
have
 
been
 
duly
 
authorized
 
by
 
all
 
necessary
corporate action and do
 
not and will not,
 
whether with or without
 
the giving of notice
 
or passage
 
 
 
 
8
of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any
properties or
 
assets of
 
the Company or
 
any subsidiary
 
pursuant to,
 
the Agreements
 
and Instruments
(except
 
for
 
such
 
conflicts,
 
breaches,
 
defaults
 
or
 
Repayment
 
Events
 
or
 
liens,
 
charges
 
or
encumbrances
 
that
 
would
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
Material Adverse
 
Effect), nor
 
will such
 
action result
 
in any
 
violation of
 
(i) the
 
provisions of
 
the
charter, by-laws
 
or similar organizational
 
document of the
 
Company or any
 
of its subsidiaries
 
or
(ii) any law, statute, rule, regulation, judgment, order,
 
writ or decree of any Governmental Entity,
except,
 
in
 
the
 
case
 
of
 
clause
 
(ii)
 
above,
 
for
 
such
 
violations
 
that
 
would
 
not,
 
singly
 
or
 
in
 
the
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
As
 
used
 
herein,
 
a
Repayment Event
” means any event or condition which gives the holder of any note, debenture
or other
 
evidence of
 
indebtedness (or
 
any person
 
acting on
 
such holder’s
 
behalf) the
 
right to
 
require
the repurchase, redemption or repayment of all or a portion of such
 
indebtedness by the Company
or any of its subsidiaries.
 
(q)
 
Absence of
 
Labor Dispute.
 
Except as
 
disclosed in
 
the Registration
 
Statement and
the Prospectus, (A) no labor dispute with the employees of
 
the Company or any of its subsidiaries
exists or,
 
to the
 
knowledge of
 
the Company,
 
is imminent,
 
and (B)
 
the Company
 
is not
 
aware of
any
 
existing
 
or
 
imminent
 
labor
 
disturbance
 
by
 
the
 
employees
 
of
 
any
 
of
 
the
 
Company’s
 
or
 
any
subsidiary’s
 
principal
 
suppliers,
 
manufacturers,
 
customers
 
or
 
contractors,
 
which,
 
in
 
the
 
case
 
of
either clause
 
(A) or
 
(B), would,
 
singly or
 
in the
 
aggregate, reasonably
 
be expected
 
to result
 
in a
Material Adverse Effect.
 
(r)
 
Absence of Proceedings. Except as disclosed in the Registration Statement and the
Prospectus, there is no
 
action, suit, proceeding, inquiry
 
or investigation before or
 
brought by any
Governmental Entity now
 
pending or,
 
to the knowledge
 
of the Company,
 
threatened, against the
Company or any of its subsidiaries, that, singly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be
 
expected to materially and adversely affect
 
their respective
properties or
 
assets or
 
the consummation
 
of the
 
transactions contemplated
 
in this
 
Agreement or
the performance
 
by the
 
Company of
 
its obligations
 
hereunder; and
 
the aggregate
 
of all
 
pending
legal or governmental
 
proceedings to which
 
the Company or
 
any such subsidiary
 
is a party
 
or of
which
 
any
 
of
 
their
 
respective
 
properties
 
or
 
assets
 
is
 
the
 
subject
 
which
 
are
 
not
 
described
 
in
 
the
Registration Statement
 
and the
 
Prospectus, including
 
ordinary routine
 
litigation incidental
 
to the
business,
 
would
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
 
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
Adverse Effect.
 
(s)
 
Accuracy of
 
Exhibits. There
 
are no
 
contracts or
 
documents which
 
are required
 
to
be
 
described
 
in
 
the
 
Registration
 
Statement
 
or
 
the
 
Prospectus
 
or
 
to
 
be
 
filed
 
as
 
exhibits
 
to
 
the
Registration Statement which have not been so described and filed as required.
 
(t)
 
Absence
 
of
 
Further
 
Requirements.
 
No
 
filing
 
with,
 
or
 
authorization,
 
approval,
consent,
 
license,
 
order,
 
registration,
 
qualification
 
or
 
decree
 
of,
 
any
 
Governmental
 
Entity
 
is
necessary
 
or
 
required
 
for
 
the
 
performance
 
by
 
the
 
Company
 
of
 
its
 
obligations
 
hereunder,
 
in
connection with the offering, issuance or sale of the Shares hereunder or the consummation of
 
the
transactions contemplated by this Agreement,
 
except (A) such as
 
have been already obtained or
 
as
 
 
 
9
may be required under
 
the Securities Act, the rules
 
of the Principal Market,
 
state securities laws or
the rules of the Financial Industry Regulatory Authority (“
FINRA
”).
 
(u)
 
Possession
 
of
 
Licenses
 
and
 
Permits.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
Statement
 
and
 
the
 
Prospectus, the
 
Company
 
and its
 
subsidiaries
 
possess
 
such permits,
 
licenses,
approvals, consents and
 
other authorizations (collectively,
 
Governmental Licenses
”) issued by
the appropriate
 
Governmental Entities
 
necessary to
 
conduct the
 
business now
 
operated by
 
them,
except where
 
the failure
 
so to
 
possess would
 
not, singly
 
or in
 
the aggregate,
 
reasonably be
 
expected
to result
 
in a
 
Material Adverse
 
Effect. Except
 
as disclosed
 
in the
 
Registration Statement
 
and the
Prospectus, the Company
 
and its subsidiaries
 
are in compliance with
 
the terms and
 
conditions of
all
 
Governmental
 
Licenses,
 
except
 
where
 
the
 
failure
 
so
 
to
 
comply
 
would
 
not,
 
singly
 
or
 
in
 
the
aggregate, reasonably
 
be expected
 
to result
 
in a
 
Material Adverse
 
Effect.
 
Except as
 
disclosed in
the Registration Statement
 
and the Prospectus, all
 
of the Governmental
 
Licenses are valid
 
and in
full force and
 
effect, except
 
when the invalidity
 
of such Governmental
 
Licenses or the
 
failure of
such Governmental
 
Licenses to
 
be in
 
full force
 
and effect
 
would not,
 
singly or
 
in the
 
aggregate,
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
Except
 
as
 
disclosed
 
in
 
the
Registration
 
Statement
 
and the
 
Prospectus,
 
neither the
 
Company
 
nor
 
any
 
of
 
its
 
subsidiaries has
received
 
any
 
written
 
notice
 
of
 
proceedings
 
relating
 
to
 
the
 
revocation
 
or
 
modification
 
of
 
any
Governmental Licenses
 
which, singly or
 
in the
 
aggregate, if
 
the subject
 
of an
 
unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
 
(v)
 
Title
 
to
 
Property.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, the Company and its subsidiaries do not
 
own any real property and have good title
 
to
all
 
other
 
properties
 
(other
 
than
 
Intellectual
 
Property
 
(as
 
defined
 
below),
 
which
 
is
 
addressed
 
in
Section
 
1(r)
 
below)
 
owned
 
by
 
them
 
that
 
are
 
material
 
to
 
the
 
business
 
of
 
the
 
Company
 
and
 
its
subsidiaries, in each case, free
 
and clear of all
 
mortgages, pledges, liens, security interests,
 
claims,
restrictions
 
or
 
encumbrances
 
of
 
any
 
kind
 
except
 
such
 
as
 
do
 
not,
 
singly
 
or
 
in
 
the
 
aggregate,
materially affect the value of such property and do
 
not materially interfere with the use made and
proposed to
 
be made
 
of such
 
property by
 
the Company
 
or any
 
of its
 
subsidiaries; and
 
except as
disclosed in the Registration Statement
 
and the Prospectus, all
 
of the leases and
 
subleases material
to the business
 
of the Company and
 
its subsidiaries, considered as
 
one enterprise, and under
 
which
the Company or any of its subsidiaries holds properties described
 
in the Registration Statement or
the Prospectus, are in
 
full force and effect,
 
and neither the Company
 
nor any such subsidiary
 
has
received
 
any
 
written
 
notice
 
of
 
any
 
material
 
claim
 
of
 
any
 
sort
 
that
 
has
 
been
 
asserted
 
by
 
anyone
adverse
 
to
 
the
 
rights
 
of
 
the
 
Company
 
or
 
any
 
subsidiary
 
under
 
any
 
of
 
the
 
leases
 
or
 
subleases
mentioned above, or affecting
 
or questioning the rights of
 
the Company or such subsidiary
 
to the
continued possession of the leased or subleased premises under any such lease or sublease.
 
(w)
 
Possession
 
of
 
Intellectual
 
Property.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
Statement and the Prospectus, the Company and its subsidiaries own or have a valid license to, or
can acquire on reasonable terms, adequate rights to
 
all patents, patent rights, licenses, inventions,
copyrights,
 
know-how
 
(including
 
trade
 
secrets
 
and
 
other
 
unpatented
 
and/or
 
unpatentable
proprietary or confidential
 
information, systems or
 
procedures), trademarks, service
 
marks, trade
names or
 
other intellectual
 
property (collectively,
 
Intellectual Property
”) used
 
in or
 
necessary
to carry on the business now operated by them.
 
Except as disclosed in the Registration Statement
and the
 
Prospectus, neither the
 
Company nor any
 
of its subsidiaries
 
has received any
 
written notice
or is otherwise aware of any infringement of or conflict with asserted
 
rights of others with respect
 
 
10
to
 
any
 
Intellectual
 
Property
 
or
 
of
 
any
 
facts
 
or
 
circumstances
 
which
 
would
 
render
 
any
 
of
 
their
Intellectual
 
Property
 
invalid
 
or
 
inadequate
 
to
 
protect
 
the
 
interest
 
of
 
the
 
Company
 
or
 
any
 
of
 
its
subsidiaries therein, nor does the operation of the
 
Company’s or its
 
subsidiaries’ business as now
operated by them
 
infringe or conflict
 
with the Intellectual
 
Property of others,
 
in each case
 
which
infringement or conflict (if
 
the subject of any
 
unfavorable decision, ruling or finding)
 
or invalidity
or inadequacy,
 
singly
 
or
 
in the
 
aggregate,
 
would reasonably
 
be
 
expected
 
to result
 
in a
 
Material
Adverse Effect.
 
(x)
 
Environmental
 
Laws.
 
Except
 
as
 
described
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus or would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (A) neither the Company nor any of
 
its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of
 
common law
or
 
any
 
judicial
 
or
 
administrative
 
interpretation
 
thereof,
 
including
 
any
 
judicial
 
or
 
administrative
order,
 
consent,
 
decree
 
or
 
judgment,
 
relating
 
to
 
pollution
 
or
 
protection
 
of
 
human
 
health,
 
the
environment (including, without limitation, ambient air,
 
surface water, groundwater,
 
land surface
or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the
release
 
or
 
threatened
 
release
 
of
 
chemicals,
 
pollutants,
 
contaminants,
 
wastes,
 
toxic
 
substances,
hazardous
 
substances,
 
petroleum
 
or
 
petroleum
 
products,
 
asbestos-containing
 
materials
 
or
 
mold
(collectively,
 
Hazardous
 
Materials
”)
 
or
 
to
 
the
 
manufacture,
 
processing,
 
distribution,
 
use,
treatment,
 
storage,
 
disposal,
 
transport
 
or
 
handling
 
of
 
Hazardous
 
Materials
 
(collectively,
Environmental
 
Laws
”), (B)
 
the Company
 
and its
 
subsidiaries have
 
all permits,
 
authorizations
and approvals required
 
under any applicable
 
Environmental Laws and
 
are each in
 
compliance with
their
 
requirements,
 
(C)
 
there
 
are
 
no
 
pending
 
or,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
threatened
administrative, regulatory or
 
judicial actions, suits,
 
demands, demand letters,
 
claims, liens, notices
of noncompliance or
 
violation, investigations
 
or proceedings relating
 
to any
 
Environmental Law
or Hazardous Materials
 
against the Company
 
or any of its
 
subsidiaries and (D) to
 
the knowledge
of the Company,
 
there are no events or circumstances that
 
would reasonably be expected to
 
form
the basis of
 
an order
 
for clean-up or
 
remediation, or
 
an action,
 
suit or proceeding
 
by any
 
private
party or Governmental Entity, against or affecting
 
the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
 
(y)
 
Accounting
 
Controls.
 
The
 
Company
 
maintains
 
a
 
system
 
of
 
internal
 
control
 
over
financial
 
reporting
 
(as
 
defined
 
under
 
Rule
 
13-a15
 
and
 
15d-15
 
under
 
the
 
Exchange
 
Act)
 
and
 
a
system
 
of
 
internal
 
accounting
 
controls
 
sufficient
 
to
 
provide
 
reasonable
 
assurances
 
that
 
(A)
transactions are executed in accordance with management’s general or specific
 
authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in
 
conformity
with
 
GAAP
 
and
 
to
 
maintain
 
accountability
 
for
 
assets;
 
(C)
 
access
 
to
 
assets
 
is
 
permitted
 
only
 
in
accordance with management’s
 
general or specific authorization; (D)
 
the recorded accountability
for
 
assets
 
is
 
compared
 
with
 
the
 
existing
 
assets
 
at
 
reasonable
 
intervals
 
and
 
appropriate
 
action
 
is
taken with
 
respect to
 
any differences; and
 
(E) the
 
interactive data
 
in eXtensible
 
Business Reporting
Language included or incorporated by reference in the Registration
 
Statement and the Prospectus
fairly presents
 
the information called
 
for in
 
all material
 
respects and
 
is prepared
 
in accordance
 
with
the Commission's rules and guidelines
 
applicable thereto. Except as described in
 
the Registration
Statement
 
and
 
the
 
Prospectus,
 
since
 
the
 
end
 
of
 
the
 
Company’s
 
most
 
recent
 
audited
 
fiscal
 
year,
there has been
 
(1) no material
 
weakness in the
 
Company’s internal control over financial
 
reporting
(whether or
 
not remediated)
 
and (2)
 
no change
 
in the
 
Company’s
 
internal control
 
over financial
 
 
 
 
11
reporting that has
 
materially affected,
 
or is reasonably
 
likely to materially
 
affect, the Company’s
internal control over financial reporting.
 
(z)
 
Compliance with
 
the Sarbanes-Oxley
 
Act.
 
The Company
 
has taken
 
all necessary
actions to ensure that it is in compliance in all material respects with the Sarbanes-Oxley Act that
are in effect, and only to the extent that such
 
provisions are applicable to the Company as of such
time.
 
(aa)
 
Payment
 
of
 
Taxes.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, all income tax returns of the Company and its subsidiaries required by law
 
to be filed
by
 
the
 
Company
 
and
 
its
 
subsidiaries
 
have
 
been
 
filed
 
and
 
are
 
true,
 
correct
 
and
 
complete
 
in
 
all
material respects and all taxes,
 
interest, penalties or additional amounts
 
shown by such returns or
otherwise assessed
 
(whether imposed
 
directly or
 
through withholding),
 
which are
 
due and
 
payable,
have been
 
paid, except
 
assessments against
 
which appeals
 
have been
 
or will
 
be promptly
 
taken,
are being contested in
 
good faith and as
 
to which adequate reserves
 
have been provided. Except as
disclosed in the Registration Statement
 
and the Prospectus, the Company and
 
its subsidiaries have
filed all
 
other tax
 
returns that
 
are required
 
to have
 
been filed
 
by them
 
pursuant to
 
applicable tax
law, and
 
all such tax returns are true, correct
 
and complete in all material respects, except
 
insofar
as the failure to file such returns
 
would not reasonably be expected to result in a
 
Material Adverse
Effect. Except as disclosed in the Registration Statement and the
 
Prospectus, the Company and its
subsidiaries
 
have
 
paid
 
all
 
taxes
 
shown
 
as
 
due
 
pursuant
 
to
 
such
 
returns
 
or
 
pursuant
 
to
 
any
assessment received
 
by the
 
Company and
 
its subsidiaries,
 
except for
 
such taxes,
 
if any, as are
 
being
contested in good faith and as to which adequate reserves have been established by the Company,
or except insofar
 
as the failure
 
to pay such
 
taxes would
 
not reasonably be
 
expected to result
 
in a
Material
 
Adverse
 
Effect.
 
The
 
charges,
 
accruals
 
and
 
reserves
 
on
 
the
 
books
 
of
 
the
 
Company
 
in
respect
 
of
 
any
 
income
 
and
 
corporation
 
tax
 
liability
 
for
 
any
 
years
 
not
 
finally
 
determined
 
are
adequate to
 
meet
 
any
 
assessments
 
or re-assessments
 
for
 
additional tax
 
for
 
any
 
years not
 
finally
determined, except to
 
the extent of
 
any inadequacy that
 
would not reasonably
 
be expected to
 
result
in a Material Adverse Effect.
 
(bb)
 
Insurance.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
the Company and its subsidiaries carry
 
or are entitled to the benefits of insurance,
 
with financially
sound and reputable
 
insurers, in such
 
amounts and covering
 
such risks as
 
the Company reasonably
believes is adequate to conduct its business and the business of its subsidiaries as described in the
Registration Statement and the Prospectus, and all
 
such insurance is in full force
 
and effect except
where
 
the
 
failure
 
to
 
carry
 
such
 
insurance
 
or
 
have
 
such
 
insurance
 
be
 
in
 
full
 
effect
 
would
 
not
reasonably
 
be
 
expected
 
to
 
result
 
in
 
a
 
Material
 
Adverse
 
Effect.
 
Except
 
as
 
disclosed
 
in
 
the
Registration Statement and the Prospectus, the Company has no reason to believe that it or any of
its
 
subsidiaries
 
will
 
not be
 
able
 
(A)
 
to
 
renew
 
its
 
existing
 
insurance coverage
 
as
 
and
 
when
 
such
policies expire or
 
(B) to obtain comparable
 
coverage from similar institutions
 
as may be
 
necessary
or
 
appropriate
 
to
 
conduct
 
its
 
business
 
as
 
presently
 
conducted
 
and
 
at
 
a
 
cost
 
that
 
would
 
not
reasonably be expected to result in a Material Adverse Effect.
 
(cc)
 
Investment Company Act.
 
The Company is
 
not required,
 
and upon
 
the issuance and
sale
 
of
 
the
 
Shares
 
as
 
herein
 
contemplated
 
and
 
the
 
application
 
of
 
the
 
net
 
proceeds
 
therefrom
 
as
described in the Prospectus will
 
not be required, to register
 
as an “investment company” under
 
the
Investment Company Act of 1940, as amended (the “
Investment Company Act”).
 
 
 
 
12
(dd)
 
Absence of Manipulation. Neither the Company nor any controlled Affiliate of the
Company has taken, nor will
 
the Company or any controlled
 
Affiliate take, directly or
 
indirectly,
any
 
action
 
which
 
is
 
designed,
 
or
 
would
 
reasonably
 
be
 
expected, to
 
cause
 
or
 
result
 
in,
 
or
 
which
constitutes,
 
the
 
stabilization
 
or
 
manipulation
 
of
 
the
 
price
 
of
 
any
 
security
 
of
 
the
 
Company
 
to
facilitate the
 
sale or
 
resale of
 
the Shares
 
or result
 
in a
 
violation of
 
Regulation M
 
under the
 
Exchange
Act.
 
(ee)
 
Anti-Corruption
 
and
 
Anti-Bribery
 
Laws.
 
None
 
of
 
the
 
Company,
 
any
 
of
 
its
subsidiaries
 
nor,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
any
 
director,
 
officer,
 
agent,
 
employee,
controlled Affiliate
 
or other person
 
acting on
 
behalf of the
 
Company or
 
any of its
 
subsidiaries is
aware of
 
or has
 
taken
 
any action,
 
directly or
 
indirectly,
 
that would
 
result
 
in a
 
violation by
 
such
persons of the Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and
similar
 
laws
 
of
 
other
 
jurisdictions
 
where
 
the
 
Company
 
conducts
 
business
 
(collectively,
 
Anti-
Corruption Laws
”), including,
 
without limitation, making
 
an offer,
 
payment, promise
 
to pay or
authorization
 
of
 
the
 
payment
 
of
 
any
 
money,
 
or
 
other
 
property,
 
gift,
 
promise
 
to
 
give,
 
or
authorization of the
 
giving of anything
 
of value to
 
any government official
 
or any political
 
party
or official thereof or
 
any candidate for political
 
office, in contravention of
 
Anti-Corruption Laws
and the Company and, to the knowledge of the Company, its controlled Affiliates have conducted
their
 
businesses
 
in
 
compliance
 
with
 
Anti-Corruption
 
Laws
 
and
 
have
 
instituted
 
and
 
maintain
policies
 
and
 
procedures
 
designed
 
to
 
ensure,
 
and
 
which
 
are
 
reasonably
 
expected
 
to
 
continue
 
to
ensure,
 
continued
 
compliance
 
therewith.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
 
Registration
Statement and the
 
Prospectus, neither the
 
Company nor any
 
of its subsidiaries
 
nor, to
 
the best of
the Company’s
 
knowledge, any
 
employee or
 
agent of the
 
Company or
 
any subsidiary,
 
has made
any contribution or other payment to any official of, or candidate for, any federal,
 
state or foreign
office
 
in
 
violation
 
of
 
any
 
law
 
or
 
of
 
the
 
character
 
required
 
to
 
be
 
disclosed
 
in
 
the
 
Registration
Statement and the Prospectus.
(ff)
 
Money Laundering Laws.
 
The operations of
 
the Company and
 
its subsidiaries are
and have
 
been conducted
 
at all
 
times in
 
compliance with applicable
 
financial recordkeeping
 
and
reporting
 
requirements
 
of
 
the
 
Currency
 
and
 
Foreign
 
Transactions
 
Reporting
 
Act
 
of
 
1970,
 
as
amended, the
 
money laundering
 
statutes of
 
all jurisdictions
 
where the
 
Company and
 
its subsidiaries
conduct business, the rules and
 
regulations thereunder and any related
 
or similar rules, regulations
or
 
guidelines,
 
issued,
 
administered
 
or
 
enforced
 
by
 
any
 
Governmental
 
Entity
 
(collectively,
 
the
Money Laundering
 
Laws
”); and no
 
action, suit
 
or proceeding by
 
or before any
 
Governmental
Entity
 
involving
 
the
 
Company or
 
any
 
of
 
its
 
subsidiaries
 
with
 
respect
 
to
 
the
 
Money
 
Laundering
Laws is pending or, to the knowledge of the Company,
 
threatened.
 
(gg)
 
OFAC.
 
None of the Company,
 
any of its subsidiaries nor,
 
to the knowledge of the
Company,
 
any
 
director,
 
officer,
 
agent,
 
employee,
 
controlled
 
Affiliate
 
or
 
representative
 
of
 
the
Company or
 
any of
 
its subsidiaries
 
is an
 
individual or
 
entity (“
Person
”) currently
 
the subject
 
or
target
 
of
 
any
 
sanctions
 
administered
 
or
 
enforced
 
by
 
the
 
United
 
States
 
Government,
 
including,
without
 
limitation,
 
the
 
U.S.
 
Department
 
of
 
the
 
Treasury’s
 
Office
 
of
 
Foreign
 
Assets
 
Control
(“
OFAC
”), the United
 
Nations Security Council
 
(“
UNSC
”), the European
 
Union, His
 
Majesty’s
Treasury
 
(“
HMT
”), or
 
other
 
relevant
 
sanctions
 
authority
 
(collectively,
 
Sanctions
”), nor
 
is
 
the
Company located,
 
organized or
 
resident in
 
a country
 
or territory
 
that is
 
the subject
 
of Sanctions;
and the Company will not directly or indirectly use the proceeds of the sale
 
of the Shares, or lend,
contribute or otherwise make
 
available such proceeds to any
 
subsidiaries, joint venture partners or
 
 
 
 
13
other Person, to fund any
 
activities of or business
 
with any Person, or in
 
any country or territory,
that, at the time of such funding, is the subject of Sanctions or in any other manner that will result
in
 
a
 
violation
 
by
 
any
 
Person
 
(including
 
any
 
Person
 
participating
 
in
 
the
 
transaction,
 
whether
 
as
underwriter, advisor, investor or otherwise) of Sanctions.
 
(hh)
 
Lending
 
Relationship
.
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus,
 
the
 
Company
 
(i)
 
does
 
not
 
have
 
any
 
material
 
lending
 
or
 
other
 
relationship
 
with
 
any
bank or lending Affiliate of the Agent and (ii) does not intend to use any of the proceeds from the
sale of the Shares to repay any outstanding debt owed to any Affiliate of the Agent.
 
(ii)
 
Statistical
 
and
 
Market-Related
 
Data.
 
Any
 
statistical
 
and
 
market-related
 
data
included in the Registration Statement
 
or the Prospectus are based
 
on or derived from sources that
the
 
Company
 
believes,
 
after
 
reasonable
 
inquiry,
 
to
 
be
 
reliable
 
and
 
accurate
 
and,
 
to
 
the
 
extent
required, the Company has obtained
 
the written consent to the use
 
of such data from such
 
sources.
 
(jj)
 
Cybersecurity.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
Prospectus, there
 
has been
 
no security
 
breach or
 
incident, unauthorized
 
access or
 
disclosure, or
other compromise of or relating to the Company’s or its subsidiaries’ information technology and
computer
 
systems,
 
networks,
 
hardware,
 
software,
 
data
 
and
 
databases
 
(including
 
the
 
data
 
and
information of their respective customers, employees,
 
suppliers, vendors and any third
 
party data
maintained, processed or stored by
 
the Company and its subsidiaries, and
 
any such data processed
or stored by third parties on behalf
 
of the Company and its subsidiaries), equipment
 
or technology
(collectively,
 
IT
 
Systems
 
and
 
Data
”),
 
except
 
as
 
has
 
not
 
resulted
 
in
 
material
 
liability
 
to
 
the
Company.
 
Except
 
as
 
disclosed
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
neither
 
the
Company nor
 
its subsidiaries
 
have been
 
notified in
 
writing of,
 
and each
 
of them
 
have no
 
knowledge
of
 
any
 
event
 
or
 
condition
 
that
 
would
 
reasonably
 
be
 
expected
 
to
 
result
 
in,
 
any
 
material
 
security
breach or incident, unauthorized
 
access or disclosure or
 
other compromise to their IT
 
Systems and
Data. Except as disclosed
 
in the Registration
 
Statement and the Prospectus,
 
the Company and
 
its
subsidiaries
 
have
 
implemented
 
appropriate
 
controls,
 
policies,
 
procedures
 
and
 
technological
safeguards intended
 
to maintain
 
and protect
 
the integrity,
 
continuous operation,
 
redundancy and
security of their IT Systems and Data reasonably consistent with industry
 
standards and practices,
or as
 
required by
 
applicable regulatory
 
standards. Except
 
as disclosed
 
in the
 
Registration Statement
and the Prospectus, and except as would not,
 
singly or in the aggregate, reasonably be expected
 
to
result in a Material Adverse Effect, the Company
 
and its subsidiaries are presently in compliance
with all applicable laws or statutes and all
 
judgments, orders, rules and regulations of any court or
arbitrator
 
or
 
governmental
 
or
 
regulatory
 
authority,
 
internal
 
policies
 
and
 
contractual
 
obligations
relating to
 
the privacy
 
and security
 
of IT
 
Systems and
 
Data and
 
to the
 
protection of
 
such IT
 
Systems
and Data from unauthorized use, access, misappropriation or modification.
 
(kk)
 
Stock
 
Exchange Listing.
 
The
 
Common
 
Shares
 
are
 
registered pursuant
 
to
 
Section
12(b) or 12(g) of
 
the Exchange Act and
 
are listed on
 
the Principal Market, and
 
the Company has
taken
 
no
 
action
 
designed
 
to,
 
or
 
likely
 
to
 
have
 
the
 
effect
 
of,
 
terminating
 
the
 
registration
 
of
 
the
Common
 
Shares
 
under
 
the
 
Exchange
 
Act
 
or
 
delisting
 
the
 
Common
 
Shares
 
from
 
the
 
Principal
Market,
 
nor
 
has
 
the
 
Company
 
received
 
any
 
notification
 
that
 
the
 
Commission
 
or
 
the
 
Principal
Market is contemplating terminating such
 
registration or listing.
 
To the Company’s knowledge, it
is in material compliance with all applicable listing requirements of the Principal Market.
 
 
 
 
 
14
(ll)
 
FINRA Matters.
 
All of the information provided to the Agent or
 
to counsel for the
Agent by the Company in connection
 
with the offering of the Shares is
 
true, complete, correct and
compliant with
 
FINRA rules
 
and any
 
letters, filings
 
or other
 
supplemental information
 
provided
to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct.
(mm)
 
ERISA Compliance.
 
Except as
 
otherwise disclosed
 
in the
 
Prospectus, the
 
Company
and its subsidiaries and
 
any “employee benefit plan”
 
(as defined under the
 
Employee Retirement
Income
 
Security
 
Act
 
of
 
1974,
 
as
 
amended,
 
and
 
the
 
regulations
 
and
 
published
 
interpretations
thereunder (collectively,
 
ERISA
”)) established
 
or maintained
 
by the
 
Company,
 
its subsidiaries
or
 
their
 
“ERISA
 
Affiliates”
 
(as
 
defined
 
below)
 
are
 
in
 
compliance
 
in
 
all
 
material
 
respects
 
with
ERISA.
 
ERISA Affiliate
” means,
 
with respect
 
to the
 
Company or
 
any of
 
its subsidiaries,
 
any
member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations
 
and published interpretations thereunder
(the “
Code
”) of
 
which the
 
Company or
 
such subsidiary
 
is a
 
member.
 
No “reportable event”
 
(as
defined
 
under
 
ERISA)
 
has
 
occurred
 
or
 
is
 
reasonably
 
expected
 
to
 
occur
 
with
 
respect
 
to
 
any
“employee benefit plan”
 
established or maintained
 
by the Company, its subsidiaries
 
or any of
 
their
ERISA Affiliates.
 
Except as otherwise
 
disclosed in the
 
Registration Statement and
 
the Prospectus,
no “employee benefit plan”
 
established or maintained by
 
the Company,
 
its subsidiaries or any
 
of
their ERISA Affiliates,
 
if such “employee
 
benefit plan” were
 
terminated, would have
 
any “amount
of unfunded
 
benefit liabilities”
 
(as defined
 
under ERISA).
 
Except as
 
otherwise disclosed
 
in the
Registration Statement and
 
the Prospectus and
 
except as would
 
not have a
 
Material Adverse
 
Effect
on the Company
 
and its subsidiaries,
 
taken as a
 
whole, neither the
 
Company,
 
its subsidiaries nor
any of
 
their ERISA
 
Affiliates
 
has incurred
 
or reasonably
 
expects to
 
incur any
 
liability under
 
(i)
Title IV of
 
ERISA with
 
respect to
 
termination of,
 
or withdrawal
 
from, any
 
“employee benefit
 
plan”
or
 
(ii)
 
Sections
 
412,
 
4971,
 
4975
 
or
 
4980B
 
of
 
the
 
Code.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
Registration Statement and
 
the Prospectus and
 
except as would
 
not have a
 
Material Adverse
 
Effect
on the Company and
 
its subsidiaries, taken as
 
a whole, each “employee
 
benefit plan” established
or maintained by the
 
Company, its subsidiaries or any of their ERISA Affiliates that
 
is intended to
be qualified
 
under Section
 
401(a) of
 
the Code
 
is so
 
qualified and
 
nothing has
 
occurred, whether
by action or failure to act, which would cause the loss of such qualification.
(nn)
 
Brokers.
 
Except as otherwise
 
disclosed in the
 
Prospectus, there is no
 
broker, finder
or other party that
 
is entitled to
 
receive from the Company
 
any brokerage or finder’s
 
fee or other
fee or commission as a result of any transactions contemplated by this Agreement.
(oo)
 
Dividend Restrictions.
 
Except as disclosed in the Prospectus,
 
no subsidiary of the
Company is prohibited
 
or restricted, directly
 
or indirectly, from paying dividends to
 
the Company,
or from making
 
any other distribution
 
with respect to
 
such subsidiary’s
 
equity securities or
 
from
repaying to the
 
Company or any
 
other subsidiary of
 
the Company any
 
amounts that may
 
from time
to time
 
become due
 
under any
 
loans or
 
advances to
 
such subsidiary
 
from the
 
Company or
 
from
transferring any property or assets to the Company or to any other subsidiary.
(pp)
 
Clinical
 
Data and
 
Regulatory
 
Compliance.
 
Except
 
as
 
otherwise disclosed
 
in
 
the
Registration Statement
 
and the
 
Prospectus, and
 
except as
 
would not
 
have a
 
Material Adverse
 
Effect
on the Company
 
and its subsidiaries,
 
taken as a
 
whole, (i) the
 
pre-clinical studies and clinical
 
trials
conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or
its subsidiaries or in which
 
the Company or its subsidiaries
 
have participated, that are described
 
in
 
 
15
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
or
 
the
 
results
 
of
 
which
 
are
 
referred
 
to
 
in
 
the
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
as
 
applicable,
 
were,
 
and
 
if
 
still
 
pending
 
are,
 
being
conducted in all material
 
respects in accordance with the
 
protocols submitted to the
 
U.S. Food and
Drug Administration (the “
FDA
”) and other applicable
 
regulatory authorities (including, without
limitation,
 
any
 
foreign,
 
federal,
 
state
 
or
 
local
 
governmental
 
or
 
regulatory
 
authority
 
performing
functions similar
 
to those
 
performed by
 
the FDA)
 
(collectively,
 
the “
Regulatory Authorities
”),
the
 
applicable
 
rules
 
and
 
regulations
 
of
 
the
 
Regulatory
 
Authorities,
 
and
 
current
 
Good
 
Clinical
Practices and
 
Good Laboratory
 
Practices; (ii)
 
the descriptions
 
in the
 
Registration Statement
 
and
the Prospectus
 
of the
 
results of
 
such studies
 
and trials
 
are accurate
 
in all
 
material respects
 
and fairly
present in all material respects the data
 
derived therefrom; (iii) the Company has no knowledge
 
of
any other
 
studies or
 
trials not
 
described in
 
the Registration
 
Statement and
 
the Prospectus,
 
the results
of which
 
call into
 
question the
 
results described
 
or referred
 
to in
 
the Registration
 
Statement and
the Prospectus; (iv) the Company
 
and its subsidiaries have operated at
 
all times and are currently
in
 
material
 
compliance
 
with
 
all
 
applicable
 
statutes,
 
rules
 
and
 
regulations
 
of
 
the
 
Regulatory
Authorities;
 
and
 
(v)
 
neither
 
the
 
Company
 
nor
 
any
 
of
 
its
 
subsidiaries
 
have
 
received
 
any
 
written
notices,
 
correspondence
 
or
 
other
 
communications
 
from
 
the
 
Regulatory
 
Authorities
 
or
 
any
 
other
governmental
 
agency
 
requiring
 
the
 
termination,
 
modification
 
or
 
suspension
 
of
 
any
 
pre-clinical
studies or clinical trials that are described
 
in the Registration Statement and the Prospectus
 
or the
results
 
of
 
which
 
are
 
referred
 
to
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus,
 
other
 
than
ordinary course communications with
 
respect to modifications in
 
connection with the design
 
and
implementation
 
of
 
such
 
studies
 
or
 
trials,
 
and,
 
to
 
the
 
Company’s
 
best
 
knowledge,
 
there
 
are
 
no
reasonable grounds for the same.
(qq)
 
Duties, Transfer Taxes,
 
Etc.
 
No stamp or other issuance or transfer taxes or duties
and no
 
capital gains,
 
income, withholding
 
or other
 
taxes are
 
payable by
 
the Agent
 
in the
 
United
States
 
or
 
any
 
political
 
subdivision
 
or
 
taxing
 
authority
 
thereof
 
or
 
therein
 
in
 
connection
 
with
 
the
execution, delivery or performance of this Agreement
 
by the Company or the sale
 
and delivery by
the Company of the Shares.
(rr)
 
Compliance
 
with
 
Health
 
Care
 
Laws.
 
Except
 
as
 
otherwise
 
disclosed
 
in
 
the
Registration Statement
 
or the
 
Prospectus and
 
except as
 
would be
 
reasonably expected
 
to have
 
a
Material Adverse Effect on the Company and its subsidiaries, taken as a whole, the Company and
its
 
subsidiaries
 
are,
 
and
 
at
 
all
 
times
 
have
 
been,
 
in
 
compliance
 
with
 
all
 
applicable
 
Health
 
Care
Laws.
 
For purposes of this Agreement, “
Health Care Laws
” means: (i) the Federal Food, Drug,
and Cosmetic Act (21 U.S.C.
 
§§ 301 et seq.), the Public
 
Health Service Act (42 U.S.C. §§
 
201 et
seq.); (ii) all applicable federal, state, local and all
 
applicable foreign health care related fraud and
abuse
 
laws,
 
including,
 
without
 
limitation,
 
the
 
U.S.
 
Anti-Kickback
 
Statute
 
(42
 
U.S.C.
 
§
 
1320a-
7b(b)), the
 
U.S. False
 
Statements Law
 
(42 U.S.C.
 
§ 1320a-7b(a)),
 
the Civil
 
Monetary Penalties
Law (42
 
U.S.C. §1320a-7a),
 
the U.S.
 
Civil False
 
Claims Act
 
(31 U.S.C.
 
§ 3729
 
et seq.),
 
all criminal
laws relating
 
to health care
 
fraud and abuse,
 
including but not
 
limited to 18
 
U.S.C. §§ 286
 
and 287,
and
 
the
 
health
 
care
 
fraud
 
criminal
 
provisions
 
under
 
the
 
U.S.
 
Health
 
Insurance
 
Portability
 
and
Accountability
 
Act
 
of
 
1996
 
(“
HIPAA
”)
 
(42
 
U.S.C.
 
§§
 
1320d
 
et
 
seq.),
 
the
 
Physician
 
Payments
Sunshine Act
 
(42 U.S.C.
 
§ 1320a-7h),
 
the exclusion
 
law (42
 
U.S.C. §1320a-7);
 
(iii) HIPAA,
 
as
amended by the Health Information
 
Technology for Economic and Clinical Health Act (42
 
U.S.C.
§§ 17921 et seq.); (iv) regulations
 
promulgated pursuant to such statutes; and
 
(v) any and all other
applicable federal,
 
state, or
 
foreign health
 
care laws
 
and regulation
 
applicable to
 
the ownership,
testing,
 
development,
 
manufacture,
 
packaging,
 
processing,
 
use,
 
distribution,
 
marketing,
 
 
 
 
16
advertising,
 
labeling,
 
promotion,
 
sale,
 
offer
 
for
 
sale,
 
storage,
 
import,
 
export
 
or
 
disposal
 
of
 
any
product manufactured
 
or distributed
 
by the
 
Company.
 
Neither the
 
Company nor
 
its subsidiaries
has
 
received
 
written
 
notice
 
of
 
any
 
claim,
 
action,
 
suit,
 
proceeding,
 
hearing,
 
enforcement,
investigation, arbitration or
 
other action from
 
any court or
 
arbitrator or governmental
 
or regulatory
authority
 
or
 
third
 
party
 
alleging
 
that
 
it
 
is
 
in
 
violation
 
of
 
any
 
Health
 
Care
 
Laws,
 
and,
 
to
 
the
Company’s
 
knowledge,
 
no
 
such
 
claim,
 
action,
 
suit,
 
proceeding,
 
hearing,
 
enforcement,
investigation, arbitration or
 
other action is
 
threatened.
 
Neither the Company
 
nor its subsidiaries,
nor their
 
respective officers, directors,
 
employees, contractors
 
or agents, is
 
a party to
 
any corporate
integrity
 
agreements,
 
monitoring
 
agreements,
 
consent
 
decrees,
 
settlement
 
orders,
 
or
 
similar
agreements with
 
or imposed
 
by any
 
governmental or
 
regulatory authority.
 
Additionally,
 
neither
the Company
 
nor any
 
of its
 
employees, officers,
 
directors, contractors
 
or agents,
 
nor its
 
subsidiaries
or any of the subsidiary’s employees, officers, directors, contractors or agents, has been excluded,
suspended or
 
debarred from
 
participation in
 
any U.S.
 
federal health
 
care program
 
(as defined
 
in
42
 
U.S.C.
 
§
 
1320a-7b(f))
 
or
 
human
 
clinical
 
research
 
or,
 
to
 
the
 
knowledge
 
of
 
the
 
Company,
 
is
subject
 
to
 
a
 
governmental
 
inquiry,
 
investigation,
 
proceeding,
 
or
 
other
 
similar
 
action
 
that
 
could
reasonably be expected to
 
result in such
 
debarment, suspension, or
 
exclusion. The Company
 
and
its
 
subsidiaries
 
have
 
filed,
 
obtained,
 
maintained
 
or
 
submitted
 
all
 
material
 
reports,
 
documents,
forms,
 
notices,
 
applications,
 
records,
 
claims,
 
submissions
 
and
 
supplements
 
or
 
amendments
 
as
required by
 
the Health
 
Care Laws,
 
and all
 
such reports,
 
documents, forms,
 
notices, applications,
records, claims, submissions
 
and supplements
 
or amendments
 
were timely, complete, accurate
 
and
not misleading
 
on the date
 
filed in all
 
material respects
 
(or were corrected
 
or supplemented by
 
a
subsequent submission).
(ss)
 
Forward-Looking Statements.
 
No forward-looking
 
statement (within
 
the meaning
of Section 27A
 
of the Securities
 
Act and Section
 
21E of the
 
Exchange Act) (a
 
Forward-Looking
Statement
”)
 
contained
 
in
 
the
 
Registration
 
Statement
 
and
 
the
 
Prospectus
 
has
 
been
 
made
 
or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(tt)
 
Other Agreements. The Company is not a party
 
to any agreement with an agent or
underwriter for any other “at the market” or continuous equity transaction.
 
Any
 
certificate
 
signed
 
by
 
any
 
officer
 
or
 
representative
 
of
 
the
 
Company
 
or
 
any
 
of
 
its
subsidiaries and delivered to the Agent or counsel for the Agent in connection with an offering or
sale of Shares shall
 
be deemed a representation
 
and warranty by the
 
Company to the
 
Agent as to
the matters covered thereby on the date of such certificate.
The
 
Company
 
acknowledges
 
that
 
the
 
Agent
 
and,
 
for
 
purposes
 
of
 
the
 
opinions
 
to
 
be
delivered pursuant to Section 4(p) hereof, counsel to
 
the Company and counsel to the Agent, will
rely upon
 
the accuracy
 
and truthfulness
 
of the
 
foregoing representations
 
and hereby
 
consents to
such reliance.
Section 3.
 
OFFER AND SALE OF COMMON SHARES
(a)
 
Sale of Securities.
 
On the basis of
 
the representations, warranties and
 
agreements
herein contained,
 
but subject
 
to the
 
terms and
 
conditions
 
herein set
 
forth,
 
the Company
 
and the
Agent agree that
 
the Company may
 
from time to
 
time seek to
 
sell Shares through
 
the Agent, acting
as sales
 
agent,
 
or directly
 
to the
 
Agent,
 
acting
 
as
 
principal,
 
as follows,
 
with an
 
aggregate
 
Sales
 
 
 
 
 
 
 
 
 
 
17
Price of up to the Maximum Program Amount, based on and in accordance with Issuance Notices
as the Company may deliver, during the Agency Period.
 
(b)
 
Mechanics of Issuances.
 
(i)
 
Issuance
 
Notice.
 
Upon
 
the
 
terms
 
and
 
subject
 
to
 
the
 
conditions
 
set
 
forth
herein, on any Trading Day during the Agency
 
Period on which the conditions set
 
forth in Section
5(a) and
 
Section 5(b)
 
shall have
 
been satisfied,
 
the Company
 
may exercise
 
its right
 
to request
 
a
sale of
 
Shares by
 
delivering to
 
the Agent
 
an Issuance
 
Notice; provided,
 
however,
 
that (A)
 
in no
event may the Company deliver an Issuance Notice to the extent that the sum of (x) the aggregate
Sales Price of the requested Issuance
 
Amount, plus (y) the aggregate
 
Sales Price of all Shares
 
sold
under
 
all
 
previous
 
Issuance
 
Notices
 
effected
 
pursuant
 
to
 
this
 
Agreement,
 
would
 
exceed
 
the
Maximum Program Amount; and (B) prior to delivery
 
of any Issuance Notice, the period set forth
for any previous Issuance Notice shall have expired or been terminated. An
 
Issuance Notice shall
be considered delivered on the Trading Day that it is received by e-mail to the persons set forth in
Schedule A hereto
 
and confirmed by
 
the Company by
 
telephone (including a
 
voicemail message
to the
 
persons so
 
identified), with
 
the understanding
 
that, with
 
adequate prior
 
written notice,
 
the
Agent may modify the list of such persons from time to time.
 
(ii)
 
Agent Efforts.
 
Upon the terms and
 
subject to the conditions set
 
forth in this
Agreement, upon the
 
receipt of an
 
Issuance Notice, the
 
Agent will use
 
its commercially reasonable
efforts
 
consistent with
 
its normal
 
sales and
 
trading practices
 
to place
 
the
 
Shares with
 
respect to
which the
 
Agent has
 
agreed to
 
act as
 
sales agent,
 
subject to,
 
and in
 
accordance with
 
the information
specified
 
in,
 
the
 
Issuance
 
Notice,
 
unless
 
the
 
sale
 
of
 
the
 
Shares
 
described
 
therein
 
has
 
been
suspended, cancelled
 
or otherwise terminated
 
in accordance with
 
the terms of
 
this Agreement.
 
For
the avoidance of doubt, the parties to
 
this Agreement may modify an Issuance Notice
 
at any time
provided they both agree in writing to any such modification.
 
(iii)
 
Method
 
of
 
Offer
 
and
 
Sale.
 
The
 
Shares
 
may
 
be
 
offered
 
and
 
sold
 
(A)
 
in
negotiated transactions with the consent of the Company
 
or (B) by any other method permitted
 
by
law deemed to
 
be an “
at the market
 
offering
” as defined
 
in Rule 415(a)(4)
 
under the Securities
Act, including block
 
transactions, sales made directly
 
on the Principal
 
Market or sales made
 
into
any
 
other
 
existing
 
trading
 
market
 
of
 
the
 
Common
 
Shares.
 
Nothing
 
in
 
this
 
Agreement
 
shall
 
be
deemed to require either
 
party to agree to
 
the method of offer
 
and sale specified in
 
the preceding
sentence, and (except as specified in clause (A) above) the method of placement of any Shares by
the Agent shall be at the Agent’s discretion.
(iv)
 
Confirmation to the
 
Company.
 
If acting
 
as sales
 
agent hereunder, the
 
Agent
will provide
 
written confirmation
 
to the
 
Company no
 
later than
 
the opening
 
of the
 
Trading
 
Day
next following the Trading Day on which
 
it has placed Shares hereunder setting forth the number
of shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable
to the Company in respect thereof.
 
(v)
 
Settlement.
 
Each sale of
 
Shares will be settled
 
on the applicable
 
Settlement
Date
 
for
 
such
 
sale
 
of
 
Shares
 
and,
 
subject
 
to
 
the
 
provisions
 
of
 
Section
 
5,
 
on
 
or
 
before
 
each
Settlement Date,
 
the Company
 
will, or
 
will cause
 
its transfer
 
agent to,
 
electronically transfer
 
the
Shares
 
being
 
sold
 
by
 
crediting
 
the
 
Agent
 
or
 
its
 
designee’s
 
account
 
at
 
The
 
Depository
 
Trust
 
 
 
 
 
 
 
 
18
Company through its
 
Deposit/Withdrawal At Custodian (DWAC) System, or by such other means
of delivery as
 
may be mutually agreed
 
upon by the parties
 
hereto and, upon receipt
 
of such Shares,
which in all cases
 
shall be freely tradable,
 
transferable, registered shares in good
 
deliverable form,
the Agent will deliver, by wire transfer of immediately available funds,
 
the related Issuance Price
in same
 
day funds
 
delivered to
 
an account
 
designated by
 
the Company
 
prior to
 
the Settlement
 
Date.
 
The Company
 
may sell
 
Shares to
 
the Agent
 
as principal
 
at a
 
price agreed
 
upon at
 
each relevant
time Shares are sold pursuant to this Agreement (each, a “
Time of Sale
”).
 
(vi)
 
Suspension
 
or
 
Termination
 
of
 
Sales.
 
Consistent
 
with
 
standard
 
market
settlement
 
practices,
 
the
 
Company
 
or
 
the
 
Agent
 
may,
 
upon
 
notice
 
to
 
the
 
other
 
party
 
hereto
 
in
writing or by telephone (confirmed
 
immediately by verifiable e-mail), suspend
 
any sale of Shares,
and the
 
period set forth
 
in an Issuance
 
Notice shall immediately
 
terminate; provided, however, that
(A)
 
such
 
suspension
 
and
 
termination
 
shall
 
not
 
affect
 
or
 
impair
 
either
 
party’s
 
obligations
 
with
respect
 
to
 
any
 
Shares
 
placed
 
or
 
sold
 
hereunder
 
prior
 
to
 
the
 
receipt
 
of
 
such
 
notice;
 
(B)
 
if
 
the
Company
 
suspends
 
or
 
terminates
 
any
 
sale
 
of
 
Shares
 
after
 
the
 
Agent
 
confirms
 
such
 
sale
 
to
 
the
Company, the Company shall
 
still be
 
obligated to
 
comply with
 
Section 3(b)(v)
 
with respect
 
to such
Shares; and
 
(C) if
 
the Company
 
defaults in
 
its obligation
 
to deliver
 
Shares on
 
a Settlement
 
Date
(other than as a
 
result of the failure by
 
the Agent to perform
 
its obligations under this Agreement),
the Company
 
agrees that
 
it will
 
hold the
 
Agent harmless
 
against any
 
loss, claim,
 
damage or
 
expense
(including, without
 
limitation, penalties,
 
interest
 
and reasonable
 
and documented
 
legal fees
 
and
expenses),
 
as
 
incurred,
 
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
such
 
default
 
by
 
the
 
Company.
 
The
parties hereto acknowledge
 
and agree that, in
 
performing its obligations under
 
this Agreement, the
Agent
 
may
 
borrow
 
Common
 
Shares
 
from
 
stock
 
lenders
 
in
 
the
 
event
 
that
 
the
 
Company
 
has
 
not
delivered Shares
 
to
 
settle
 
sales
 
as
 
required
 
by
 
subsection
 
(v)
 
above,
 
and
 
may
 
use
 
the
 
Shares
 
to
settle or
 
close out
 
such borrowings.
 
The Company
 
agrees that
 
no such
 
notice shall
 
be effective
against the
 
Agent unless
 
it is
 
made to
 
the persons
 
identified in
 
writing by
 
the Agent
 
pursuant to
Section 3(b)(i).
 
(vii)
 
No Guarantee of Placement,
 
Etc.
 
The Company acknowledges and
 
agrees
that
 
(A)
 
there
 
can
 
be
 
no
 
assurance that
 
the
 
Agent
 
will
 
be
 
successful
 
in
 
placing
 
Shares;
 
(B)
 
the
Agent will
 
incur no
 
liability or
 
obligation to
 
the Company
 
or any
 
other Person if
 
it does
 
not sell
Shares;
 
and
 
(C)
 
the
 
Agent
 
shall
 
be
 
under no
 
obligation
 
to
 
purchase Shares
 
on
 
a
 
principal
 
basis
pursuant
 
to
 
this
 
Agreement,
 
except
 
as
 
otherwise
 
specifically
 
agreed
 
by
 
the
 
Agent
 
and
 
the
Company.
(viii)
 
Material Non-Public Information.
 
Notwithstanding any other provision
 
of
this Agreement,
 
the Company
 
and the
 
Agent agree
 
that the
 
Company shall
 
not deliver
 
any Issuance
Notice to the
 
Agent, and the
 
Agent shall not
 
be obligated to
 
place any Shares,
 
during any period
in which the Company is in possession of material non-public information.
(c)
 
Fees.
 
As compensation for services rendered,
 
the Company shall pay to
 
the Agent,
on the
 
applicable Settlement
 
Date, the
 
Selling
 
Commission
 
for the
 
applicable Issuance
 
Amount
(including with
 
respect to
 
any suspended
 
or terminated
 
sale pursuant
 
to Section
 
3(b)(vi)) by
 
the
Agent deducting the Selling Commission from the applicable Issuance Amount.
(d)
 
Expenses.
 
The
 
Company
 
agrees
 
to
 
pay
 
all
 
costs,
 
fees
 
and
 
expenses
 
incurred
 
in
connection
 
with
 
the
 
performance
 
of
 
its
 
obligations
 
hereunder
 
and
 
in
 
connection
 
with
 
the
 
 
 
 
 
 
19
transactions
 
contemplated
 
hereby,
 
including
 
without
 
limitation
 
(i)
 
all
 
expenses
 
incident
 
to
 
the
issuance and
 
delivery of
 
the Shares
 
(including all
 
printing and
 
engraving costs);
 
(ii) all
 
fees and
expenses
 
of
 
the
 
registrar
 
and
 
transfer
 
agent
 
of
 
the
 
Shares;
 
(iii)
 
all
 
necessary
 
issue,
 
transfer
 
and
other stamp taxes in
 
connection with the issuance
 
and sale of the
 
Shares; (iv) all fees
 
and expenses
of the Company’s
 
counsel, independent public or certified public accountants
 
and other advisors;
(v) all
 
costs and
 
expenses incurred
 
in connection
 
with the
 
preparation, printing,
 
filing, shipping
and distribution of the Registration Statement (including
 
financial statements, exhibits, schedules,
consents
 
and
 
certificates
 
of
 
experts),
 
the
 
Prospectus,
 
any
 
Free
 
Writing
 
Prospectus
 
(as
 
defined
below) prepared by or on
 
behalf of, used by,
 
or referred to by the
 
Company,
 
and all amendments
and
 
supplements
 
thereto,
 
and
 
this
 
Agreement;
 
(vi)
 
all
 
filing
 
fees,
 
attorneys’
 
fees
 
and
 
expenses
incurred by the
 
Company or the
 
Agent in connection
 
with qualifying or
 
registering (or obtaining
exemptions from the qualification or
 
registration of) all or any
 
part of the Shares for offer and
 
sale
under
 
the
 
state
 
securities
 
or
 
blue
 
sky
 
laws
 
or
 
the
 
provincial
 
securities
 
laws
 
of
 
Canada,
 
and,
 
if
requested
 
by
 
the
 
Agent,
 
preparing
 
and
 
printing
 
a
 
Blue
 
Sky
 
Survey
 
or
 
memorandum
 
and
 
a
“Canadian
 
wrapper”,
 
and
 
any
 
supplements
 
thereto,
 
advising
 
the
 
Agent
 
of
 
such
 
qualifications,
registrations, determinations
 
and exemptions;
 
(vii) the
 
reasonable fees
 
and disbursements
 
of the
Agent’s counsel, including
 
the reasonable
 
fees and
 
expenses of
 
counsel for
 
the Agent
 
in connection
with,
 
FINRA
 
review,
 
if
 
any,
 
and
 
approval
 
of
 
the
 
Agent’s
 
participation
 
in
 
the
 
offering
 
and
distribution of the Shares; (viii) the filing fees incident to FINRA review,
 
if any; and (ix) the fees
and
 
expenses
 
associated
 
with
 
listing
 
the
 
Shares
 
on
 
the
 
Principal
 
Market.
 
The
 
fees
 
and
disbursements of Agent’s counsel pursuant
 
to subsections (vi)
 
and (vii) above
 
shall not exceed
 
(A)
$75,000 in connection
 
with the execution
 
of this Agreement
 
and (B) $25,000
 
in connection with
each Triggering Event
 
Date (as defined below) involving
 
the filing of a
 
Form 10-K on which
 
the
Company
 
is
 
required
 
to
 
provide
 
a
 
certificate
 
pursuant
 
to
 
Section
 
4(o)
 
and
 
(C)
 
$15,000
 
in
connection with
 
each other
 
Triggering
 
Event Date
 
(as defined
 
below) on
 
which the
 
Company is
required to provide a certificate pursuant to Section 4(o).
Section 4.
 
ADDITIONAL COVENANTS
The
 
Company
 
covenants and
 
agrees with
 
the
 
Agent
 
as
 
follows,
 
in
 
addition to
 
any
 
other
covenants and agreements made elsewhere in this Agreement:
(a)
 
Exchange Act Compliance.
 
During the Agency Period, the Company shall (i) file,
on
 
a
 
timely
 
basis,
 
with
 
the
 
Commission
 
all
 
reports
 
and
 
documents
 
required
 
to
 
be
 
filed
 
under
Section 13, 14
 
or 15 of
 
the Exchange Act
 
in the
 
manner and within
 
the time periods
 
required by
the Exchange Act; and (ii) either (A) include
 
in its quarterly reports on Form 10-Q and
 
its annual
reports on
 
Form 10-K,
 
a summary
 
detailing, for
 
the relevant
 
reporting period,
 
(1) the
 
number of
Shares sold through
 
the Agent pursuant to
 
this Agreement and (2)
 
the net proceeds received
 
by the
Company from such
 
sales or
 
(B) prepare a
 
prospectus supplement
 
containing, or include
 
in such
other
 
filing
 
permitted
 
by
 
the
 
Securities
 
Act
 
or
 
Exchange
 
Act
 
(each
 
an
 
Interim
 
Prospectus
Supplement
”), such summary information and, at least once a
 
quarter and subject to this
 
Section
4, file such Interim Prospectus Supplement pursuant to Rule 424(b) under the Securities Act
 
(and
within the time periods required by Rule 424(b) and Rule 430B under the Securities Act)).
(b)
 
Securities Act
 
Compliance.
 
After the
 
date of
 
this Agreement,
 
the Company
 
shall
promptly
 
advise
 
the
 
Agent
 
in
 
writing
 
(i)
 
of
 
the
 
receipt
 
of
 
any
 
comments
 
of,
 
or
 
requests
 
for
additional
 
or
 
supplemental
 
information
 
from,
 
the
 
Commission
 
relating
 
to
 
the
 
Registration
 
 
 
 
 
 
 
20
Statement or the
 
Prospectus; (ii) of
 
the time
 
and date
 
of any
 
filing of any
 
post-effective amendment
to
 
the
 
Registration
 
Statement,
 
any
 
Rule
 
462(b)
 
Registration
 
Statement
 
or
 
any
 
amendment
 
or
supplement to the
 
Prospectus, any Free
 
Writing Prospectus; (iii) of
 
the time and
 
date that any
 
post-
effective
 
amendment
 
to
 
the
 
Registration
 
Statement
 
or
 
any
 
Rule
 
462(b)
 
Registration
 
Statement
becomes effective;
 
and (iv) of
 
the issuance by
 
the Commission
 
of any stop
 
order suspending the
effectiveness
 
of
 
the
 
Registration
 
Statement
 
or
 
any
 
post-effective
 
amendment
 
thereto,
 
any
 
Rule
462(b) Registration Statement or any amendment or supplement to the Prospectus or of any order
preventing
 
or
 
suspending
 
the
 
use
 
of
 
any
 
Free
 
Writing
 
Prospectus
 
or
 
the
 
Prospectus,
 
or
 
of
 
any
proceedings to remove,
 
suspend or terminate
 
from listing or
 
quotation the Common
 
Shares from
any
 
securities
 
exchange
 
upon
 
which
 
they
 
are
 
listed
 
for
 
trading
 
or
 
included
 
or
 
designated
 
for
quotation, or
 
of the
 
threatening or
 
initiation of
 
any proceedings for
 
any of
 
such purposes.
 
If the
Commission shall
 
enter any such
 
stop order at
 
any time, the
 
Company will use
 
its best efforts
 
to
obtain the
 
lifting of
 
such order
 
as soon
 
as practicable.
 
Additionally,
 
the Company
 
agrees that
 
it
shall comply with the provisions of Rule 424(b) and Rule 433,
 
as applicable, under the Securities
Act and
 
will use its
 
reasonable efforts to
 
confirm that any
 
filings made by
 
the Company under
 
such
Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
 
(c)
 
Amendments and Supplements to the
 
Prospectus and Other Securities Act
 
Matters.
 
If
 
any
 
event
 
shall
 
occur
 
or
 
condition
 
exist
 
as
 
a
 
result
 
of
 
which
 
it
 
is
 
necessary
 
to
 
amend
 
or
supplement the
 
Prospectus so
 
that the
 
Prospectus does
 
not include
 
an untrue
 
statement of
 
a material
fact or omit
 
to state a
 
material fact necessary in
 
order to make
 
the statements therein, in
 
the light
of the circumstances when
 
the Prospectus is
 
delivered to a purchaser,
 
not misleading, or
 
if in the
opinion of
 
the Agent
 
or counsel
 
for the
 
Agent it
 
is otherwise
 
necessary to
 
amend or
 
supplement
the Prospectus to
 
comply with
 
applicable law,
 
including the
 
Securities Act, the
 
Company agrees
(subject
 
to
 
Section
 
4(d)
 
and
 
Section
 
4(f))
 
to
 
promptly
 
prepare,
 
file
 
with
 
the
 
Commission
 
and
furnish at its own expense to the Agent, amendments or supplements to the Prospectus (including
by filing a document incorporated by reference
 
therein) so that the statements in the Prospectus as
so amended or
 
supplemented will not
 
include an untrue
 
statement of a
 
material fact or
 
omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances
when
 
the
 
Prospectus
 
is
 
delivered
 
to
 
a
 
purchaser,
 
be
 
misleading
 
or
 
so
 
that
 
the
 
Prospectus,
 
as
amended or supplemented, will comply with applicable law including the Securities Act.
 
Neither
the Agent’s consent
 
to, or
 
delivery of,
 
any such
 
amendment or
 
supplement shall
 
constitute a
 
waiver
of any of the Company’s obligations under Section 4(d) and Section 4(f).
(d)
 
Agent’s Review of Proposed Amendments and
 
Supplements.
 
Prior to amending or
supplementing the Registration
 
Statement (including any
 
Rule 462(b) Registration
 
Statement) or
the Prospectus (excluding
 
any amendment or
 
supplement through incorporation of
 
any report filed
under the Exchange Act),
 
the Company shall furnish
 
to the Agent for
 
review, a reasonable amount
of time
 
prior to
 
the proposed
 
time of
 
filing or
 
use thereof,
 
a copy
 
of each
 
such proposed
 
amendment
or
 
supplement,
 
but
 
only
 
insofar
 
as
 
such
 
proposed
 
amendment
 
or
 
supplement
 
relates
 
to
 
the
transactions
 
contemplated
 
hereby,
 
and
 
the
 
Company
 
shall
 
not
 
file
 
or
 
use
 
any
 
such
 
proposed
amendment
 
or
 
supplement
 
without
 
the
 
Agent’s
 
prior
 
consent,
 
and
 
to
 
file
 
with
 
the
 
Commission
within
 
the
 
applicable
 
period
 
specified
 
in
 
Rule
 
424(b)
 
under
 
the
 
Securities
 
Act
 
any
 
prospectus
required to be filed pursuant to such Rule.
(e)
 
Use of Free Writing Prospectus. Neither the Company nor the Agent has prepared,
used, referred to or distributed, or
 
will prepare, use, refer to or distribute,
 
without the other party’s
 
 
 
21
prior written consent, any “written communication” that constitutes a
 
“free writing prospectus” as
such
 
terms
 
are
 
defined
 
in
 
Rule
 
405
 
under
 
the
 
Securities
 
Act
 
with
 
respect
 
to
 
the
 
offering
contemplated by
 
this Agreement
 
(any such
 
free writing
 
prospectus being
 
referred to
 
herein as
 
a
Free Writing Prospectus
”).
(f)
 
Free Writing Prospectuses.
 
The Company shall furnish to
 
the Agent for review,
 
a
reasonable
 
amount
 
of
 
time
 
prior
 
to
 
the
 
proposed
 
time
 
of
 
filing
 
or
 
use
 
thereof,
 
a
 
copy
 
of
 
each
proposed Free Writing
 
Prospectus or any amendment
 
or supplement thereto to
 
be prepared by or
on behalf of, used by,
 
or referred to by the
 
Company and the Company
 
shall not file, use or
 
refer
to
 
any
 
proposed
 
Free
 
Writing
 
Prospectus
 
or
 
any
 
amendment
 
or
 
supplement
 
thereto
 
without
 
the
Agent’s consent, which
 
shall not
 
be unreasonably
 
withheld, conditioned
 
or delayed.
 
The Company
shall furnish
 
to the
 
Agent, without
 
charge, as
 
many copies
 
of any
 
Free Writing Prospectus
 
prepared
by or on behalf of, or used
 
by the Company,
 
as the Agent may reasonably request.
 
If at any time
when a
 
prospectus is
 
required by
 
the Securities
 
Act (including,
 
without limitation,
 
pursuant to
 
Rule
173(d))
 
to
 
be
 
delivered
 
in
 
connection
 
with
 
sales
 
of
 
the
 
Shares
 
(but
 
in
 
any
 
event
 
if
 
at
 
any
 
time
through
 
and
 
including
 
the
 
date
 
of
 
this
 
Agreement)
 
there
 
occurred
 
or
 
occurs
 
an
 
event
 
or
development as a
 
result of
 
which any Free
 
Writing
 
Prospectus prepared by
 
or on behalf
 
of, used
by,
 
or referred to by
 
the Company conflicted or
 
would conflict with the
 
information contained in
the Registration Statement or
 
included or would include
 
an untrue statement of
 
a material fact or
omitted or would omit to state
 
a material fact necessary in order
 
to make the statements therein, in
the
 
light
 
of
 
the
 
circumstances
 
prevailing
 
at
 
that
 
subsequent
 
time,
 
not
 
misleading,
 
the
 
Company
shall promptly
 
amend or
 
supplement such
 
Free
 
Writing
 
Prospectus to
 
eliminate or
 
correct such
conflict or so that the statements in such Free Writing Prospectus as so amended or supplemented
will not include an untrue statement of a material
 
fact or omit to state a material fact necessary in
order to
 
make the
 
statements therein,
 
in the
 
light of
 
the circumstances
 
prevailing at
 
such subsequent
time,
 
not
 
misleading,
 
as
 
the
 
case
 
may
 
be;
 
provided,
 
however,
 
that
 
prior
 
to
 
amending
 
or
supplementing
 
any
 
such
 
Free
 
Writing
 
Prospectus,
 
the
 
Company
 
shall
 
furnish
 
to
 
the
 
Agent
 
for
review, a
 
reasonable amount of time
 
prior to the proposed time
 
of filing or use thereof,
 
a copy of
such proposed amended or supplemented
 
Free Writing Prospectus and the Company shall
 
not file,
use or
 
refer to
 
any such
 
amended or
 
supplemented Free
 
Writing
 
Prospectus without
 
the Agent’s
consent, which shall not be unreasonably withheld, conditioned or delayed.
(g)
 
Filing of Agent
 
Free Writing Prospectuses.
 
The Company shall not
 
take any action
that would
 
result in
 
the Agent
 
or the
 
Company being
 
required to
 
file with
 
the Commission pursuant
to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf of the
Agent that the Agent otherwise would not have been required to file thereunder.
(h)
 
Copies of Registration Statement
 
and Prospectus.
 
After the date of
 
this Agreement
through
 
the
 
last
 
time
 
that
 
a
 
prospectus
 
is
 
required
 
by
 
the
 
Securities
 
Act
 
(including,
 
without
limitation,
 
pursuant
 
to
 
Rule
 
173(d))
 
to
 
be
 
delivered
 
in
 
connection
 
with
 
sales
 
of
 
the
 
Shares,
 
the
Company
 
agrees
 
to
 
furnish
 
the
 
Agent
 
with
 
copies
 
(which
 
may
 
be
 
electronic
 
copies)
 
of
 
the
Registration Statement and
 
each amendment thereto,
 
and with copies
 
of the Prospectus
 
and each
amendment or supplement
 
thereto in the
 
form in
 
which it is
 
filed with the
 
Commission pursuant
to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as the Agent
may reasonably
 
request from
 
time to
 
time; and,
 
if the
 
delivery of
 
a prospectus
 
is required
 
under
the Securities
 
Act or
 
under the
 
blue sky
 
or securities
 
laws of
 
any jurisdiction
 
at any
 
time on
 
or
prior to the
 
applicable Settlement Date
 
for any period set
 
forth in an Issuance
 
Notice in connection
 
 
 
22
with the
 
offering
 
or sale
 
of the
 
Shares and
 
if at
 
such time
 
any event
 
has occurred
 
as a
 
result of
which the
 
Prospectus as
 
then amended
 
or supplemented
 
would include
 
an untrue
 
statement of
 
a
material fact or
 
omit to state
 
any material fact
 
necessary in order
 
to make the
 
statements therein,
in the light of the circumstances under which they
 
were made when such Prospectus is delivered,
not misleading,
 
or,
 
if
 
for
 
any other
 
reason it
 
is
 
necessary during
 
such same
 
period to
 
amend
 
or
supplement
 
the
 
Prospectus
 
or
 
to
 
file
 
under
 
the
 
Exchange
 
Act
 
any
 
document
 
incorporated
 
by
reference in
 
the
 
Prospectus
 
in
 
order to
 
comply
 
with
 
the
 
Securities
 
Act
 
or
 
the
 
Exchange
 
Act,
 
to
notify the Agent and to
 
request that the Agent suspend
 
offers to sell Shares (and, if
 
so notified, the
Agent shall
 
cease such
 
offers
 
as soon
 
as practicable);
 
and if
 
the
 
Company decides
 
to amend
 
or
supplement
 
the
 
Registration
 
Statement
 
or
 
the
 
Prospectus
 
as
 
then
 
amended
 
or
 
supplemented,
 
to
advise the Agent
 
promptly by
 
telephone (with confirmation
 
in writing) and
 
to prepare and
 
cause
to
 
be
 
filed
 
promptly
 
with
 
the
 
Commission
 
an
 
amendment
 
or
 
supplement
 
to
 
the
 
Registration
Statement or the Prospectus as
 
then amended or supplemented that will
 
correct such statement or
omission
 
or
 
effect
 
such
 
compliance,
 
including
 
by
 
filing
 
a
 
document
 
incorporated
 
by
 
reference
therein;
 
provided,
 
however,
 
that
 
if
 
during
 
such
 
same
 
period
 
the
 
Agent
 
is
 
required
 
to
 
deliver
 
a
prospectus in
 
respect of
 
transactions in
 
the Shares,
 
the Company
 
shall promptly
 
prepare and file
with the Commission such an amendment or supplement.
(i)
 
Blue Sky Compliance.
 
The Company shall
 
cooperate with the Agent
 
and counsel
for
 
the
 
Agent
 
to
 
qualify
 
or
 
register
 
the
 
Shares
 
for
 
sale
 
under
 
(or
 
obtain
 
exemptions
 
from
 
the
application of) the state securities or blue
 
sky laws or Canadian provincial securities laws
 
of those
jurisdictions
 
designated
 
by
 
the
 
Agent,
 
shall
 
comply
 
with
 
such
 
laws
 
and
 
shall
 
continue
 
such
qualifications, registrations and exemptions in effect so long as required for
 
the distribution of the
Shares.
 
The Company
 
shall not
 
be required
 
to qualify as
 
a foreign
 
corporation or
 
to take
 
any action
that would subject it to general
 
service of process in any such jurisdiction
 
where it is not presently
qualified or
 
where
 
it
 
would
 
be subject
 
to taxation
 
as a
 
foreign corporation.
 
The Company
 
will
advise the
 
Agent promptly
 
of the
 
suspension of
 
the qualification
 
or registration
 
of (or
 
any such
exemption relating to)
 
the Shares for
 
offering, sale or
 
trading in any
 
jurisdiction or any
 
initiation
or threat
 
of any
 
proceeding for
 
any such
 
purpose,
 
and in
 
the event
 
of the
 
issuance of
 
any order
suspending such qualification, registration or exemption, the Company shall use its best efforts to
obtain the withdrawal thereof as soon as practicable.
(j)
 
Earnings
 
Statement.
 
As
 
soon
 
as
 
practicable,
 
the
 
Company
 
will
 
make
 
generally
available to
 
its security holders
 
and to the
 
Agent an earnings
 
statement (which need
 
not be audited)
covering a period of at least twelve months beginning with the first fiscal quarter of the Company
occurring after
 
the date
 
of this
 
Agreement which
 
shall satisfy
 
the provisions
 
of Section
 
11(a)
 
of
the
 
Securities
 
Act
 
and
 
Rule
 
158
 
under
 
the
 
Securities
 
Act;
 
provided
 
that
 
the
 
Company
 
shall
 
be
deemed to have furnished such
 
statements to its security holders
 
and the Agent to the
 
extent they
are filed on the Commission’s EDGAR system or any successor to such system.
(k)
 
Listing;
 
Reservation
 
of
 
Shares.
 
(a)
 
The
 
Company
 
will
 
use
 
commercially
reasonable
 
efforts
 
to
 
maintain
 
the
 
listing
 
of
 
the
 
Shares
 
on
 
the
 
Principal
 
Market;
 
and
 
(b)
 
the
Company will
 
reserve and keep
 
available during each
 
period beginning
 
on the first
 
Trading Day
of the selling
 
period indicated in
 
each Issuance Notice
 
and ending on
 
the second Trading Day after
the earlier
 
of (i) the
 
last Trading Day
 
of the
 
applicable selling period
 
and (ii)
 
the date
 
the applicable
Issuance
 
Notice
 
is
 
canceled,
 
free
 
of
 
preemptive
 
rights,
 
Shares
 
for
 
the
 
purpose
 
of
 
enabling
 
the
Company to satisfy its obligations under the respective Issuance Notice.
 
 
 
 
 
23
(l)
 
Transfer Agent.
 
The Company
 
shall engage
 
and maintain,
 
at its
 
expense, a
 
registrar
and transfer agent for the Shares.
 
(m)
 
Due Diligence.
 
During the term of this Agreement, the Company will reasonably
cooperate with
 
any reasonable
 
due diligence
 
review conducted
 
by the
 
Agent in
 
connection with
the
 
transactions
 
contemplated
 
hereby,
 
including,
 
without
 
limitation,
 
providing
 
information
 
and
making available
 
documents
 
and senior
 
corporate officers,
 
during normal
 
business hours
 
and at
the Company’s principal offices, as the Agent may reasonably request from time to time.
(n)
 
Representations and
 
Warranties.
 
The Company
 
acknowledges that
 
each delivery
of an Issuance Notice and
 
each delivery of Shares on
 
a Settlement Date shall
 
be deemed to be (i)
an affirmation
 
to the
 
Agent that
 
the representations
 
and warranties of
 
the Company
 
contained in
or made pursuant to this Agreement are true
 
and correct as of the date of
 
such Issuance Notice or
of such Settlement
 
Date, as the
 
case may be,