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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.
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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.
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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
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Non-accelerated filer
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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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:
●
Class A common stock, preferred stock, debt securities, warrants, subscription rights and units;
and
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$100,000,000 of the Company’s Class A common stock that may be sold under the Open Market
Sale Agreement
SM
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.
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
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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
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
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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.
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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:
●
combination or the transaction that resulted in the stockholder becoming an interested
stockholder;
●
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
●
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
,
, 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;
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:
●
●
●
debt securities;
●
●
●
determine such rate or rates;
●
interest payable;
●
●
repurchase the debt securities;
●
$1,000 or any integral multiple of that number;
●
debt securities;
●
maturity date if other than the principal amount of the debt securities;
●
●
applicable, premium and interest, will be made;
●
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;
●
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
●
●
●
●
agents; and
●
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 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;
●
purchasable upon exercise of such warrants may be purchased;
●
such right shall expire;
●
one time;
●
the number of such warrants issued with each such security;
●
separately transferable;
●
●
●
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:
●
●
●
●
●
●
●
●
●
rights will be listed;
●
to unsubscribed securities;
●
●
into by us in connection with the offering of the rights; and
●
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:
●
units, including whether and under what circumstances the securities comprising the units may be
traded separately;
●
●
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:
●
●
●
existing trading market on an exchange or otherwise;
●
●
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:
●
●
●
compensation;
●
●
●
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:
●
●
●
●
●
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
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
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
(d) our Current Reports on Form 8-K filed with the SEC on
,
(e) the description of our Class A common stock contained in our
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
$300,000,000
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
PROSPECTUS
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
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
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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:
●
Sarbanes–Oxley Act;
S-2
●
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;
●
required unaudited interim financial statements;
●
standards, which allows an emerging growth company to delay the adoption of certain
accounting standards until those standards would otherwise apply to private companies;
●
●
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:
●
as of June 30, 2023, with an exercise price of $12.45 per share;
●
outstanding as of June 30, 2023;
●
June 30, 2023, with a weighted-average exercise price of $2.52 per share;
●
June 30, 2023, with a weighted-average exercise price of $10.07 per share;
●
Option and Grant Plan and 2021 Omnibus Incentive Compensation Plan and our 2021 Employee
Stock Purchase Plan; and
●
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
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
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
(d) our Current Reports on Form 8-K filed with the SEC on
,
; 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
VAXXINITY, INC.
Up to $100,000,000
Class A Common Stock
PROSPECTUS
Jefferies
II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the Registrant in connection with the
sale of the securities being registered hereby.
Amount to Be Paid
Registration fee ................................................................................
$ 33,060
FINRA filing fee ................................................................................
45,500
Printing expenses .............................................................................
(1)
Legal fees and expenses .................................................................
(1)
Accounting fees and expenses ........................................................
(1)
Miscellaneous ..................................................................................
(1)
TOTAL
$ (1)
(1) These fees and expenses depend on the securities offered and the number of issuances, and
accordingly cannot be estimated at this time and will be reflected in the applicable prospectus
supplement.
Item 15. Indemnification of Directors and Officers
We have entered into indemnification agreements with each of our current directors and executive
officers. These agreements require us to indemnify these individuals to the fullest extent permitted under
Delaware law against liabilities that may arise by reason of their service to us, and to advance expenses
incurred as a result of any proceeding against them as to which they could be indemnified. We also
intend to enter into indemnification agreements with our future directors and executive officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may
indemnify directors and officers as well as other employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by
such person in connection with any threatened, pending or completed actions, suits or proceedings in
which such person is made a party by reason of such person being or having been a director, officer,
employee or agent to the registrant. The DGCL provides that Section 145 is not exclusive of other rights
to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise. Our Bylaws provide for indemnification by the registrant of its
directors, officers and employees to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions or (4) for any transaction from which the
director derived an improper personal benefit. Our Charter provides for such limitation of liability.
We maintain standard policies of insurance under which coverage is provided (a) to our directors and
officers against loss arising from claims made by reason of breach of duty or other wrongful act and (b) to
us with respect to payments we may make to our officers and directors pursuant to the above
indemnification provision or otherwise as a matter of law.
Any underwriting agreement that we may enter into may provide for indemnification of our directors and
officers by the underwriters against certain liabilities.
II-2
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit No.
Document
1.1*
Form of Underwriting Agreement
1.2
4.1
Amended and Restated Certificate of Incorporation of Vaxxinity, Inc. (
4.2
Amended and Restated Bylaws of Vaxxinity, Inc. (
4.3
4.4*
Form of Note
4.5*
Form of Warrant Agreement
4.6*
Form of Subscription Rights Agreement
4.7*
Form of Unit Agreement
5.1
23.1
23.2
Consent of Davis Polk & Wardwell LLP (included in
24.1
Power of Attorney (included on the signature page of the Registration Statement)
25.1**
Statement of Eligibility on Form T-1 of the Trustee for the Indenture
107
* To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or
as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
** To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made of securities registered hereby,
a post-effective amendment to this registration statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
To
include any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Securities and Exchange Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
II-3
1934 that are incorporated by reference in this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part
of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to
any purchaser in the initial distribution of the securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to
the purchaser.
II-4
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or
otherwise, the registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Merritt
Island, Florida, on August 9, 2023.
Vaxxinity, Inc.
By:
/s/ Mei Mei Hu
Name: Mei Mei Hu
Title: Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Mei Mei Hu, Louis Reese, René Paula Molina and Jason Pesile and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement and any and
all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file the
same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do
and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them or his or her or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by
the following persons in the capacities on August 9, 2023 .
Signature
Title
/s/ Mei Mei Hu
Chief Executive Officer and Director
(principal executive officer)
Mei Mei Hu
/s/ Jason Pesile
Senior Vice President, Finance and Accounting
(principal financial officer and principal accounting officer)
Jason Pesile
/s/ Louis Reese
Executive Chairman
Louis Reese
/s/ Peter Diamandis
Director
Peter Diamandis
/s/ Katherine Eade
Director
Katherine Eade
/s/ George Hornig
Director
George Hornig
/s/ Landon Ogilvie
Director
Landon Ogilvie
/s/ Peter Powchik
Director
Peter Powchik
/s/ James Smith
Director
James Smith
/s/ Gabrielle Toledano
Director
Gabrielle Toledano
Exhibit 1.2
OPEN MARKET SALE AGREEMENT
SM
August 9, 2023
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Vaxxinity, Inc., a Delaware corporation (the “
Company
”), proposes, subject to the terms
and conditions stated herein, to issue and sell from time to time through Jefferies LLC, as sales
agent and/or principal (the “
Agent
”), shares of the Company’s Class A common stock, par value
$0.0001 per share (the “
Common Shares
”), on the terms set forth in this agreement (this
“
Agreement
”).
Section 1. DEFINITIONS
(a) Certain Definitions. For purposes of this Agreement, capitalized terms used herein
and not otherwise defined shall have the following respective meanings:
“
Affiliate
” of a Person means another Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with, such first-
mentioned Person. The term “control” (including the terms “controlling,” “controlled by” and
“under common control with”) means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
“
Agency Period
” means the period commencing on the date of this Agreement and
expiring on the earliest to occur of (x) the date on which the Agent shall have placed the Maximum
Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated
pursuant to Section 7.
“
Commission
” means the U.S. Securities and Exchange Commission.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
“
Floor Price
” means the minimum price set by the Company in the Issuance Notice below
which the Agent shall not sell Shares during the applicable period set forth in the Issuance Notice,
which may be adjusted by the Company at any time during the period set forth in the Issuance
Notice by delivering written notice of such change to the Agent and which in no event shall be less
than $1.00 without the prior written consent of the Agent, which may be withheld in the Agent’s
sole discretion.
_______________________________
SM “Open Market Sale Agreement” is a service mark of Jefferies LLC
2
Issuance Amount
” means the aggregate Sales Price of the Shares to be sold by the Agent
pursuant to any Issuance Notice.
“
Issuance Notice
” means a written notice delivered to the Agent by the Company in
accordance with this Agreement in the form attached hereto as Exhibit A that is executed by its
principal executive officer or principal financial officer.
“
Issuance Notice Date
” means any Trading Day during the Agency Period that an Issuance
Notice is delivered pursuant to Section 3(b)(i).
Issuance Price
” means the Sales Price less the Selling Commission.
“
Maximum Program Amount
” means Common Shares with an aggregate Sales Price of
the lesser of (a) the number or dollar amount of Common Shares registered under the effective
Registration Statement (defined below) pursuant to which the offering is being made, (b) the
number of authorized but unissued Common Shares (less Common Shares issuable upon exercise,
conversion or exchange of any outstanding securities of the Company or otherwise reserved from
the Company’s authorized capital stock), (c) the number or dollar amount of Common Shares
permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or
(d) the number or dollar amount of Common Shares for which the Company has filed a Prospectus
(defined below).
“
Person
” means an individual or a corporation, partnership, limited liability company,
trust, incorporated or unincorporated association, joint venture, joint stock company, governmental
authority or other entity of any kind.
“
Principal Market
” means The Nasdaq Stock Market LLC or such other national
securities exchange on which the Common Shares, including any Shares, are then listed.
“
Sales Price
” means the actual sale execution price of each Share placed by the Agent
pursuant to this Agreement.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
“
Selling Commission
” means three percent (3.0%) of the gross proceeds of Shares sold
pursuant to this Agreement, or as otherwise agreed between the Company and the Agent with
respect to any Shares sold pursuant to this Agreement.
Settlement Date
” means the second business day following each Trading Day during the
period set forth in the Issuance Notice on which Shares are sold pursuant to this Agreement, when
the Company shall deliver to the Agent the amount of Shares sold on such Trading Day and the
Agent shall deliver to the Company the Issuance Price received on such sales.
“
Shares
” shall mean the Company’s Common Shares issued or issuable pursuant to this
Agreement.
“
Trading Day
” means any day on which the Principal Market is open for trading.
3
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, the Agent that as of (1) the date
of this Agreement, (2) each Issuance Notice Date, (3) each Settlement Date, (4) each Triggering
Event Date (as defined below) with respect to which the Company is required to deliver a
certificate pursuant to Section 4(o), and (5) as of each Time of Sale (each of the times referenced
above is referred to herein as a “
Representation Date
”), except as may be disclosed in the
Prospectus (including any documents incorporated by reference therein and any supplements
thereto) on or before a Representation Date:
(a) Registration Statement. The Company has prepared and filed, or will file, with the
Commission a shelf registration statement on Form S-3 that contains a base prospectus (the “
Base
Prospectus
”). Such registration statement registers the offering and sale by the Company of the
Shares under the Securities Act. The Company may file one or more additional registration
statements from time to time that will contain a base prospectus and related prospectus or
prospectus supplement, if applicable, with respect to the Shares. Except where the context
otherwise requires, such registration statement(s), including any information deemed to be a part
thereof pursuant to Rule 430B under the Securities Act, including all financial statements, exhibits
and schedules thereto and all documents incorporated or deemed to be incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended
or supplemented, is herein referred to as the “
Registration Statement,
” and the prospectus
supplement relating to the sale of the Shares and constituting a part of such registration
statement(s), together with the Base Prospectus and any prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act relating to a particular offering of
the Shares, including all documents incorporated or deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time
amended or supplemented, is referred to herein as the “
Prospectus,
” except that if any revised
prospectus is provided to the Agent by the Company for use in connection with the offering of the
Shares that is not required to be filed by the Company pursuant to Rule 424(b) under the Securities
Act, the term “
Prospectus
” shall refer to such revised prospectus from and after the time it is first
provided to the Agent for such use. As used in this Agreement, the terms “amendment” or
“supplement” when applied to the Registration Statement or the Prospectus shall be deemed to
include the filing by the Company with the Commission of any document under the Exchange Act
after the date hereof that is or is deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated
by reference in or otherwise deemed under the Securities Act to be a part of or included in the
Registration Statement or the Prospectus, as the case may be, as of any specified date; and all
references in this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference in or otherwise
deemed under the Securities Act to be a part of or included in the Registration Statement or the
Prospectus, as the case may be, as of any specified date.
4
At the time the Registration Statement was or will be declared effective and at the time the
Company’s most recent annual report on Form 10-K was filed with the Commission, if later, the
Company met the then-applicable requirements for use of Form S-3 under the Securities Act.
During the Agency Period, each time the Company files an annual report on Form 10-K the
Company will meet the then-applicable requirements for use of Form S-3 under the Securities Act.
(b) Compliance with Registration Requirements. The Registration Statement and any
registration statement filed pursuant to Rule 462(b) under the Securities Act (“
Rule 462(b)
Registration Statement
”) have been declared effective by the Commission under the Securities
Act. The Company has complied to the Commission’s satisfaction with all requests of the
Commission for additional or supplemental information in connection therewith, if any. No stop
order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted or are pending or,
to the best knowledge of the Company, are contemplated or threatened by the Commission.
The Prospectus, when filed, complied or will comply in all material respects with the
Securities Act and, if filed with the Commission through its Electronic Data Gathering, Analysis
and Retrieval system (“
EDGAR
”) (except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the Agent for use in connection with
the offering and sale of the Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it became or
becomes effective and at each Representation Date, complied and will comply in all material
respects with the Securities Act and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. As of the date of this Agreement, the Prospectus and any Free Writing
Prospectus (as defined below) considered together (collectively, the “
Time of Sale Information
”)
did not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. The Prospectus, as amended or supplemented, as of its date and at each Representation
Date, did not and will not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties set forth in the three
immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or
the Prospectus, or any amendments or supplements thereto, made in reliance upon and in
conformity with information relating to the Agent furnished to the Company in writing by the
Agent expressly for use therein, it being understood and agreed that the only such information
furnished by the Agent to the Company consists of the information described in Section 6 below.
There are no contracts or other documents required to be described in the Prospectus or to be filed
as exhibits to the Registration Statement which have not been described or filed as required. The
Registration Statement and the offer and sale of the Shares as contemplated hereby meet the
requirements of Rule 415 under the Securities Act and comply in all material respects with said
rule.
(c) Ineligible Issuer Status. The Company is not an “ineligible issuer” in connection
with the offering of the Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Any
Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the
5
Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act. Each Free Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will comply in all material respects with the
requirements of Rule 433 under the Securities Act including timely filing with the Commission or
retention where required and legending, and each such Free Writing Prospectus, as of its issue date
and at each Representation Date did not, does not and will not include any information that
conflicted, conflicts with or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein. Except
for the Free Writing Prospectuses, if any, furnished to the Agent before first use, the Company has
not prepared, used or referred to, and will not, without the Agent’s prior consent, prepare, use or
refer to, any Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at the time they were
filed with the Commission, complied in all material respects with the requirements of the Exchange
Act, as applicable, and, when read together with the other information in the Prospectus, do not
contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the
Commission complied and will comply in all material respects with the requirements of the
Exchange Act, and, when read together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become effective and at each Time of Sale
(as defined below), as the case may be, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) Emerging Growth Company Status. From the time of filing of the Registration
Statement through the date hereof, the Company has been and is an “emerging growth company,”
as defined in Section 2(a) of the Securities Act (an “
Emerging Growth Company
”).
(g) Independent Accountants. Armanino LLP, or such other accountants (the
“
Accountants
”), who certified or reviewed the financial statements and supporting schedules
included or incorporated by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the Securities Act and the Public Company
Accounting Oversight Board.
(h) Financial Statements; Non-GAAP Financial Measures. The financial statements
included or incorporated by reference in the Registration Statement and the Prospectus, together
with the related schedules and notes thereto, present fairly in all material respects the financial
position of the Company and its combined consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company and its combined
consolidated subsidiaries for the periods specified; said financial statements have been prepared
6
in conformity with U.S. generally accepted accounting principles (“
GAAP
”) applied on a
consistent basis throughout the periods involved. The supporting schedules, if any, present fairly
in all material respects in accordance with GAAP the information required to be stated therein.
Except as included therein, no historical or pro forma financial statements or supporting schedules
are required to be included or incorporated by reference in the Registration Statement or the
Prospectus under the Securities Act. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement fairly presents the
information called for in all material respects and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
(i) No Material Adverse Effect on Business. Except as otherwise stated therein, since
the respective dates as of which information is given in the Registration Statement or the
Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “
Material
Adverse Effect
”), (B) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(j) Good Standing of the Company. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not reasonably be expected
to result in a Material Adverse Effect.
(k) Good Standing of Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each, a “
subsidiary
” and, collectively, the
“
subsidiaries
”) has been duly organized and is validly existing in good standing under the laws of
the jurisdiction of its incorporation or organization, has corporate or similar power and authority
to own, lease and operate its properties and to conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, in each case except as would not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed in the Registration
Statement and the Prospectus, all of the issued and outstanding capital stock of each subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any
subsidiary were issued in violation of the preemptive or similar rights of any securityholder of
such subsidiary. The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to
the Company’s most recent annual report on Form 10-K.
7
(l) Capitalization. The authorized, issued and outstanding shares of capital stock of the
Company are as set forth in the Registration Statement and the Prospectus (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Registration Statement and the Prospectus or pursuant to the
exercise of convertible securities or options or warrants referred to in the Registration Statement
and the Prospectus) and there are no outstanding warrants, options, other convertible securities or
other rights to acquire shares of Common Shares that have not been disclosed in the Registration
Statement and the Prospectus. The outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding
shares of capital stock of the Company were issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(m) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(n) Authorization and Description of Shares. The Shares subject to any Issuance Notice
have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment therefor, will be validly
issued and fully paid and non-assessable; and the issuance and sale of the Shares is not subject to
the preemptive or other similar rights to subscribe for or purchase the Shares. The Common Shares
conform in all material respects to all statements relating thereto contained in the Registration
Statement and the Prospectus and such description conforms in all material respects to the rights
set forth in the instrument defining the same.
(o) Registration Rights. There are no persons with registration rights or other similar
rights to have any securities registered for sale pursuant to the Registration Statement, other than
those rights that have been disclosed in the Registration Statement and the Prospectus and have
been waived.
(p) Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is (A) in violation of its charter, by-laws or similar organizational document, (B) in
default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the properties or assets of the Company
or any subsidiary is subject (collectively, “
Agreements and Instruments
”), except for such
defaults that would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or
decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other
authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties, assets or operations (each, a “
Governmental Entity
”), except for
such violations that would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares subject to any Issuance Notice and the use of the proceeds from
the sale of such Shares as described therein under the caption “Use of Proceeds”) and compliance
by the Company with its obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of notice or passage
8
of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the
charter, by-laws or similar organizational document of the Company or any of its subsidiaries or
(ii) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity,
except, in the case of clause (ii) above, for such violations that would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. As used herein, a
“
Repayment Event
” means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(q) Absence of Labor Dispute. Except as disclosed in the Registration Statement and
the Prospectus, (A) no labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent, and (B) the Company is not aware of
any existing or imminent labor disturbance by the employees of any of the Company’s or any
subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in the case of
either clause (A) or (B), would, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(r) Absence of Proceedings. Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any
Governmental Entity now pending or, to the knowledge of the Company, threatened, against the
Company or any of its subsidiaries, that, singly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and adversely affect their respective
properties or assets or the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder; and the aggregate of all pending
legal or governmental proceedings to which the Company or any such subsidiary is a party or of
which any of their respective properties or assets is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine litigation incidental to the
business, would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(s) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which have not been so described and filed as required.
(t) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any Governmental Entity is
necessary or required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement, except (A) such as have been already obtained or as
9
may be required under the Securities Act, the rules of the Principal Market, state securities laws or
the rules of the Financial Industry Regulatory Authority (“
FINRA
”).
(u) Possession of Licenses and Permits. Except as disclosed in the Registration
Statement and the Prospectus, the Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, “
Governmental Licenses
”) issued by
the appropriate Governmental Entities necessary to conduct the business now operated by them,
except where the failure so to possess would not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries are in compliance with the terms and conditions of
all Governmental Licenses, except where the failure so to comply would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. Except as disclosed in
the Registration Statement and the Prospectus, all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. Except as disclosed in the
Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has
received any written notice of proceedings relating to the revocation or modification of any
Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
(v) Title to Property. Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries do not own any real property and have good title to
all other properties (other than Intellectual Property (as defined below), which is addressed in
Section 1(r) below) owned by them that are material to the business of the Company and its
subsidiaries, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as do not, singly or in the aggregate,
materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries; and except as
disclosed in the Registration Statement and the Prospectus, all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties described in the Registration Statement or
the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has
received any written notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or sublease.
(w) Possession of Intellectual Property. Except as disclosed in the Registration
Statement and the Prospectus, the Company and its subsidiaries own or have a valid license to, or
can acquire on reasonable terms, adequate rights to all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, “
Intellectual Property
”) used in or necessary
to carry on the business now operated by them. Except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has received any written notice
or is otherwise aware of any infringement of or conflict with asserted rights of others with respect
10
to any Intellectual Property or of any facts or circumstances which would render any of their
Intellectual Property invalid or inadequate to protect the interest of the Company or any of its
subsidiaries therein, nor does the operation of the Company’s or its subsidiaries’ business as now
operated by them infringe or conflict with the Intellectual Property of others, in each case which
infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect.
(x) Environmental Laws. Except as described in the Registration Statement and the
Prospectus or would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law
or any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “
Hazardous Materials
”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“
Environmental Laws
”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations or proceedings relating to any Environmental Law
or Hazardous Materials against the Company or any of its subsidiaries and (D) to the knowledge
of the Company, there are no events or circumstances that would reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private
party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(y) Accounting Controls. The Company maintains a system of internal control over
financial reporting (as defined under Rule 13-a15 and 15d-15 under the Exchange Act) and a
system of internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement and the Prospectus
fairly presents the information called for in all material respects and is prepared in accordance with
the Commission's rules and guidelines applicable thereto. Except as described in the Registration
Statement and the Prospectus, since the end of the Company’s most recent audited fiscal year,
there has been (1) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (2) no change in the Company’s internal control over financial
11
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(z) Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary
actions to ensure that it is in compliance in all material respects with the Sarbanes-Oxley Act that
are in effect, and only to the extent that such provisions are applicable to the Company as of such
time.
(aa) Payment of Taxes. Except as disclosed in the Registration Statement and the
Prospectus, all income tax returns of the Company and its subsidiaries required by law to be filed
by the Company and its subsidiaries have been filed and are true, correct and complete in all
material respects and all taxes, interest, penalties or additional amounts shown by such returns or
otherwise assessed (whether imposed directly or through withholding), which are due and payable,
have been paid, except assessments against which appeals have been or will be promptly taken,
are being contested in good faith and as to which adequate reserves have been provided. Except as
disclosed in the Registration Statement and the Prospectus, the Company and its subsidiaries have
filed all other tax returns that are required to have been filed by them pursuant to applicable tax
law, and all such tax returns are true, correct and complete in all material respects, except insofar
as the failure to file such returns would not reasonably be expected to result in a Material Adverse
Effect. Except as disclosed in the Registration Statement and the Prospectus, the Company and its
subsidiaries have paid all taxes shown as due pursuant to such returns or pursuant to any
assessment received by the Company and its subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been established by the Company,
or except insofar as the failure to pay such taxes would not reasonably be expected to result in a
Material Adverse Effect. The charges, accruals and reserves on the books of the Company in
respect of any income and corporation tax liability for any years not finally determined are
adequate to meet any assessments or re-assessments for additional tax for any years not finally
determined, except to the extent of any inadequacy that would not reasonably be expected to result
in a Material Adverse Effect.
(bb) Insurance. Except as disclosed in the Registration Statement and the Prospectus,
the Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially
sound and reputable insurers, in such amounts and covering such risks as the Company reasonably
believes is adequate to conduct its business and the business of its subsidiaries as described in the
Registration Statement and the Prospectus, and all such insurance is in full force and effect except
where the failure to carry such insurance or have such insurance be in full effect would not
reasonably be expected to result in a Material Adverse Effect. Except as disclosed in the
Registration Statement and the Prospectus, the Company has no reason to believe that it or any of
its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such
policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as presently conducted and at a cost that would not
reasonably be expected to result in a Material Adverse Effect.
(cc) Investment Company Act. The Company is not required, and upon the issuance and
sale of the Shares as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “
Investment Company Act”).
12
(dd) Absence of Manipulation. Neither the Company nor any controlled Affiliate of the
Company has taken, nor will the Company or any controlled Affiliate take, directly or indirectly,
any action which is designed, or would reasonably be expected, to cause or result in, or which
constitutes, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or result in a violation of Regulation M under the Exchange
Act.
(ee) Anti-Corruption and Anti-Bribery Laws. None of the Company, any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee,
controlled Affiliate or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and
similar laws of other jurisdictions where the Company conducts business (collectively, “
Anti-
Corruption Laws
”), including, without limitation, making an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any government official or any political party
or official thereof or any candidate for political office, in contravention of Anti-Corruption Laws
and the Company and, to the knowledge of the Company, its controlled Affiliates have conducted
their businesses in compliance with Anti-Corruption Laws and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith. Except as otherwise disclosed in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries nor, to the best of
the Company’s knowledge, any employee or agent of the Company or any subsidiary, has made
any contribution or other payment to any official of, or candidate for, any federal, state or foreign
office in violation of any law or of the character required to be disclosed in the Registration
Statement and the Prospectus.
(ff) Money Laundering Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions where the Company and its subsidiaries
conduct business, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the
“
Money Laundering Laws
”); and no action, suit or proceeding by or before any Governmental
Entity involving the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
(gg) OFAC. None of the Company, any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee, controlled Affiliate or representative of the
Company or any of its subsidiaries is an individual or entity (“
Person
”) currently the subject or
target of any sanctions administered or enforced by the United States Government, including,
without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control
(“
OFAC
”), the United Nations Security Council (“
UNSC
”), the European Union, His Majesty’s
Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”), nor is the
Company located, organized or resident in a country or territory that is the subject of Sanctions;
and the Company will not directly or indirectly use the proceeds of the sale of the Shares, or lend,
contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or
13
other Person, to fund any activities of or business with any Person, or in any country or territory,
that, at the time of such funding, is the subject of Sanctions or in any other manner that will result
in a violation by any Person (including any Person participating in the transaction, whether as
underwriter, advisor, investor or otherwise) of Sanctions.
(hh) Lending Relationship
.
Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other relationship with any
bank or lending Affiliate of the Agent and (ii) does not intend to use any of the proceeds from the
sale of the Shares to repay any outstanding debt owed to any Affiliate of the Agent.
(ii) Statistical and Market-Related Data. Any statistical and market-related data
included in the Registration Statement or the Prospectus are based on or derived from sources that
the Company believes, after reasonable inquiry, to be reliable and accurate and, to the extent
required, the Company has obtained the written consent to the use of such data from such sources.
(jj) Cybersecurity. Except as disclosed in the Registration Statement and the
Prospectus, there has been no security breach or incident, unauthorized access or disclosure, or
other compromise of or relating to the Company’s or its subsidiaries’ information technology and
computer systems, networks, hardware, software, data and databases (including the data and
information of their respective customers, employees, suppliers, vendors and any third party data
maintained, processed or stored by the Company and its subsidiaries, and any such data processed
or stored by third parties on behalf of the Company and its subsidiaries), equipment or technology
(collectively, “
IT Systems and Data
”), except as has not resulted in material liability to the
Company. Except as disclosed in the Registration Statement and the Prospectus, neither the
Company nor its subsidiaries have been notified in writing of, and each of them have no knowledge
of any event or condition that would reasonably be expected to result in, any material security
breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and
Data. Except as disclosed in the Registration Statement and the Prospectus, the Company and its
subsidiaries have implemented appropriate controls, policies, procedures and technological
safeguards intended to maintain and protect the integrity, continuous operation, redundancy and
security of their IT Systems and Data reasonably consistent with industry standards and practices,
or as required by applicable regulatory standards. Except as disclosed in the Registration Statement
and the Prospectus, and except as would not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, the Company and its subsidiaries are presently in compliance
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or
arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems
and Data from unauthorized use, access, misappropriation or modification.
(kk) Stock Exchange Listing. The Common Shares are registered pursuant to Section
12(b) or 12(g) of the Exchange Act and are listed on the Principal Market, and the Company has
taken no action designed to, or likely to have the effect of, terminating the registration of the
Common Shares under the Exchange Act or delisting the Common Shares from the Principal
Market, nor has the Company received any notification that the Commission or the Principal
Market is contemplating terminating such registration or listing. To the Company’s knowledge, it
is in material compliance with all applicable listing requirements of the Principal Market.
14
(ll) FINRA Matters. All of the information provided to the Agent or to counsel for the
Agent by the Company in connection with the offering of the Shares is true, complete, correct and
compliant with FINRA rules and any letters, filings or other supplemental information provided
to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct.
(mm) ERISA Compliance. Except as otherwise disclosed in the Prospectus, the Company
and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (collectively, “
ERISA
”)) established or maintained by the Company, its subsidiaries
or their “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “
ERISA Affiliate
” means, with respect to the Company or any of its subsidiaries, any
member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “
Code
”) of which the Company or such subsidiary is a member. No “reportable event” (as
defined under ERISA) has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates. Except as otherwise disclosed in the Registration Statement and the Prospectus,
no “employee benefit plan” established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount
of unfunded benefit liabilities” (as defined under ERISA). Except as otherwise disclosed in the
Registration Statement and the Prospectus and except as would not have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole, neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Except as otherwise disclosed in the
Registration Statement and the Prospectus and except as would not have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole, each “employee benefit plan” established
or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to
be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether
by action or failure to act, which would cause the loss of such qualification.
(nn) Brokers. Except as otherwise disclosed in the Prospectus, there is no broker, finder
or other party that is entitled to receive from the Company any brokerage or finder’s fee or other
fee or commission as a result of any transactions contemplated by this Agreement.
(oo) Dividend Restrictions. Except as disclosed in the Prospectus, no subsidiary of the
Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from
repaying to the Company or any other subsidiary of the Company any amounts that may from time
to time become due under any loans or advances to such subsidiary from the Company or from
transferring any property or assets to the Company or to any other subsidiary.
(pp) Clinical Data and Regulatory Compliance. Except as otherwise disclosed in the
Registration Statement and the Prospectus, and except as would not have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole, (i) the pre-clinical studies and clinical trials
conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or
its subsidiaries or in which the Company or its subsidiaries have participated, that are described in
15
the Registration Statement and the Prospectus, or the results of which are referred to in the
Registration Statement and the Prospectus, as applicable, were, and if still pending are, being
conducted in all material respects in accordance with the protocols submitted to the U.S. Food and
Drug Administration (the “
FDA
”) and other applicable regulatory authorities (including, without
limitation, any foreign, federal, state or local governmental or regulatory authority performing
functions similar to those performed by the FDA) (collectively, the “
Regulatory Authorities
”),
the applicable rules and regulations of the Regulatory Authorities, and current Good Clinical
Practices and Good Laboratory Practices; (ii) the descriptions in the Registration Statement and
the Prospectus of the results of such studies and trials are accurate in all material respects and fairly
present in all material respects the data derived therefrom; (iii) the Company has no knowledge of
any other studies or trials not described in the Registration Statement and the Prospectus, the results
of which call into question the results described or referred to in the Registration Statement and
the Prospectus; (iv) the Company and its subsidiaries have operated at all times and are currently
in material compliance with all applicable statutes, rules and regulations of the Regulatory
Authorities; and (v) neither the Company nor any of its subsidiaries have received any written
notices, correspondence or other communications from the Regulatory Authorities or any other
governmental agency requiring the termination, modification or suspension of any pre-clinical
studies or clinical trials that are described in the Registration Statement and the Prospectus or the
results of which are referred to in the Registration Statement and the Prospectus, other than
ordinary course communications with respect to modifications in connection with the design and
implementation of such studies or trials, and, to the Company’s best knowledge, there are no
reasonable grounds for the same.
(qq) Duties, Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by the Agent in the United
States or any political subdivision or taxing authority thereof or therein in connection with the
execution, delivery or performance of this Agreement by the Company or the sale and delivery by
the Company of the Shares.
(rr) Compliance with Health Care Laws. Except as otherwise disclosed in the
Registration Statement or the Prospectus and except as would be reasonably expected to have a
Material Adverse Effect on the Company and its subsidiaries, taken as a whole, the Company and
its subsidiaries are, and at all times have been, in compliance with all applicable Health Care
Laws. For purposes of this Agreement, “
Health Care Laws
” means: (i) the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. §§ 301 et seq.), the Public Health Service Act (42 U.S.C. §§ 201 et
seq.); (ii) all applicable federal, state, local and all applicable foreign health care related fraud and
abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. § 1320a-
7b(b)), the U.S. False Statements Law (42 U.S.C. § 1320a-7b(a)), the Civil Monetary Penalties
Law (42 U.S.C. §1320a-7a), the U.S. Civil False Claims Act (31 U.S.C. § 3729 et seq.), all criminal
laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. §§ 286 and 287,
and the health care fraud criminal provisions under the U.S. Health Insurance Portability and
Accountability Act of 1996 (“
HIPAA
”) (42 U.S.C. §§ 1320d et seq.), the Physician Payments
Sunshine Act (42 U.S.C. § 1320a-7h), the exclusion law (42 U.S.C. §1320a-7); (iii) HIPAA, as
amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C.
§§ 17921 et seq.); (iv) regulations promulgated pursuant to such statutes; and (v) any and all other
applicable federal, state, or foreign health care laws and regulation applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution, marketing,
16
advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any
product manufactured or distributed by the Company. Neither the Company nor its subsidiaries
has received written notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that it is in violation of any Health Care Laws, and, to the
Company’s knowledge, no such claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action is threatened. Neither the Company nor its subsidiaries,
nor their respective officers, directors, employees, contractors or agents, is a party to any corporate
integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar
agreements with or imposed by any governmental or regulatory authority. Additionally, neither
the Company nor any of its employees, officers, directors, contractors or agents, nor its subsidiaries
or any of the subsidiary’s employees, officers, directors, contractors or agents, has been excluded,
suspended or debarred from participation in any U.S. federal health care program (as defined in
42 U.S.C. § 1320a-7b(f)) or human clinical research or, to the knowledge of the Company, is
subject to a governmental inquiry, investigation, proceeding, or other similar action that could
reasonably be expected to result in such debarment, suspension, or exclusion. The Company and
its subsidiaries have filed, obtained, maintained or submitted all material reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments as
required by the Health Care Laws, and all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were timely, complete, accurate and
not misleading on the date filed in all material respects (or were corrected or supplemented by a
subsequent submission).
(ss) Forward-Looking Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act) (a “
Forward-Looking
Statement
”) contained in the Registration Statement and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(tt) Other Agreements. The Company is not a party to any agreement with an agent or
underwriter for any other “at the market” or continuous equity transaction.
Any certificate signed by any officer or representative of the Company or any of its
subsidiaries and delivered to the Agent or counsel for the Agent in connection with an offering or
sale of Shares shall be deemed a representation and warranty by the Company to the Agent as to
the matters covered thereby on the date of such certificate.
The Company acknowledges that the Agent and, for purposes of the opinions to be
delivered pursuant to Section 4(p) hereof, counsel to the Company and counsel to the Agent, will
rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to
such reliance.
Section 3. OFFER AND SALE OF COMMON SHARES
(a) Sale of Securities. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the Company and the
Agent agree that the Company may from time to time seek to sell Shares through the Agent, acting
as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales
17
Price of up to the Maximum Program Amount, based on and in accordance with Issuance Notices
as the Company may deliver, during the Agency Period.
(b) Mechanics of Issuances.
(i) Issuance Notice. Upon the terms and subject to the conditions set forth
herein, on any Trading Day during the Agency Period on which the conditions set forth in Section
5(a) and Section 5(b) shall have been satisfied, the Company may exercise its right to request a
sale of Shares by delivering to the Agent an Issuance Notice; provided, however, that (A) in no
event may the Company deliver an Issuance Notice to the extent that the sum of (x) the aggregate
Sales Price of the requested Issuance Amount, plus (y) the aggregate Sales Price of all Shares sold
under all previous Issuance Notices effected pursuant to this Agreement, would exceed the
Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period set forth
for any previous Issuance Notice shall have expired or been terminated. An Issuance Notice shall
be considered delivered on the Trading Day that it is received by e-mail to the persons set forth in
Schedule A hereto and confirmed by the Company by telephone (including a voicemail message
to the persons so identified), with the understanding that, with adequate prior written notice, the
Agent may modify the list of such persons from time to time.
(ii) Agent Efforts. Upon the terms and subject to the conditions set forth in this
Agreement, upon the receipt of an Issuance Notice, the Agent will use its commercially reasonable
efforts consistent with its normal sales and trading practices to place the Shares with respect to
which the Agent has agreed to act as sales agent, subject to, and in accordance with the information
specified in, the Issuance Notice, unless the sale of the Shares described therein has been
suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement. For
the avoidance of doubt, the parties to this Agreement may modify an Issuance Notice at any time
provided they both agree in writing to any such modification.
(iii) Method of Offer and Sale. The Shares may be offered and sold (A) in
negotiated transactions with the consent of the Company or (B) by any other method permitted by
law deemed to be an “
at the market offering
” as defined in Rule 415(a)(4) under the Securities
Act, including block transactions, sales made directly on the Principal Market or sales made into
any other existing trading market of the Common Shares. Nothing in this Agreement shall be
deemed to require either party to agree to the method of offer and sale specified in the preceding
sentence, and (except as specified in clause (A) above) the method of placement of any Shares by
the Agent shall be at the Agent’s discretion.
(iv) Confirmation to the Company. If acting as sales agent hereunder, the Agent
will provide written confirmation to the Company no later than the opening of the Trading Day
next following the Trading Day on which it has placed Shares hereunder setting forth the number
of shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable
to the Company in respect thereof.
(v) Settlement. Each sale of Shares will be settled on the applicable Settlement
Date for such sale of Shares and, subject to the provisions of Section 5, on or before each
Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Shares being sold by crediting the Agent or its designee’s account at The Depository Trust
18
Company through its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means
of delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such Shares,
which in all cases shall be freely tradable, transferable, registered shares in good deliverable form,
the Agent will deliver, by wire transfer of immediately available funds, the related Issuance Price
in same day funds delivered to an account designated by the Company prior to the Settlement Date.
The Company may sell Shares to the Agent as principal at a price agreed upon at each relevant
time Shares are sold pursuant to this Agreement (each, a “
Time of Sale
”).
(vi) Suspension or Termination of Sales. Consistent with standard market
settlement practices, the Company or the Agent may, upon notice to the other party hereto in
writing or by telephone (confirmed immediately by verifiable e-mail), suspend any sale of Shares,
and the period set forth in an Issuance Notice shall immediately terminate; provided, however, that
(A) such suspension and termination shall not affect or impair either party’s obligations with
respect to any Shares placed or sold hereunder prior to the receipt of such notice; (B) if the
Company suspends or terminates any sale of Shares after the Agent confirms such sale to the
Company, the Company shall still be obligated to comply with Section 3(b)(v) with respect to such
Shares; and (C) if the Company defaults in its obligation to deliver Shares on a Settlement Date
(other than as a result of the failure by the Agent to perform its obligations under this Agreement),
the Company agrees that it will hold the Agent harmless against any loss, claim, damage or expense
(including, without limitation, penalties, interest and reasonable and documented legal fees and
expenses), as incurred, arising out of or in connection with such default by the Company. The
parties hereto acknowledge and agree that, in performing its obligations under this Agreement, the
Agent may borrow Common Shares from stock lenders in the event that the Company has not
delivered Shares to settle sales as required by subsection (v) above, and may use the Shares to
settle or close out such borrowings. The Company agrees that no such notice shall be effective
against the Agent unless it is made to the persons identified in writing by the Agent pursuant to
Section 3(b)(i).
(vii) No Guarantee of Placement, Etc. The Company acknowledges and agrees
that (A) there can be no assurance that the Agent will be successful in placing Shares; (B) the
Agent will incur no liability or obligation to the Company or any other Person if it does not sell
Shares; and (C) the Agent shall be under no obligation to purchase Shares on a principal basis
pursuant to this Agreement, except as otherwise specifically agreed by the Agent and the
Company.
(viii) Material Non-Public Information. Notwithstanding any other provision of
this Agreement, the Company and the Agent agree that the Company shall not deliver any Issuance
Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period
in which the Company is in possession of material non-public information.
(c) Fees. As compensation for services rendered, the Company shall pay to the Agent,
on the applicable Settlement Date, the Selling Commission for the applicable Issuance Amount
(including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi)) by the
Agent deducting the Selling Commission from the applicable Issuance Amount.
(d) Expenses. The Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection with the
19
transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Shares (including all printing and engraving costs); (ii) all fees and
expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Shares; (iv) all fees and expenses
of the Company’s counsel, independent public or certified public accountants and other advisors;
(v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), the Prospectus, any Free Writing Prospectus (as defined
below) prepared by or on behalf of, used by, or referred to by the Company, and all amendments
and supplements thereto, and this Agreement; (vi) all filing fees, attorneys’ fees and expenses
incurred by the Company or the Agent in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the Shares for offer and sale
under the state securities or blue sky laws or the provincial securities laws of Canada, and, if
requested by the Agent, preparing and printing a “
Blue Sky Survey
” or memorandum and a
“Canadian wrapper”, and any supplements thereto, advising the Agent of such qualifications,
registrations, determinations and exemptions; (vii) the reasonable fees and disbursements of the
Agent’s counsel, including the reasonable fees and expenses of counsel for the Agent in connection
with, FINRA review, if any, and approval of the Agent’s participation in the offering and
distribution of the Shares; (viii) the filing fees incident to FINRA review, if any; and (ix) the fees
and expenses associated with listing the Shares on the Principal Market. The fees and
disbursements of Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed (A)
$75,000 in connection with the execution of this Agreement and (B) $25,000 in connection with
each Triggering Event Date (as defined below) involving the filing of a Form 10-K on which the
Company is required to provide a certificate pursuant to Section 4(o) and (C) $15,000 in
connection with each other Triggering Event Date (as defined below) on which the Company is
required to provide a certificate pursuant to Section 4(o).
Section 4. ADDITIONAL COVENANTS
The Company covenants and agrees with the Agent as follows, in addition to any other
covenants and agreements made elsewhere in this Agreement:
(a) Exchange Act Compliance. During the Agency Period, the Company shall (i) file,
on a timely basis, with the Commission all reports and documents required to be filed under
Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by
the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual
reports on Form 10-K, a summary detailing, for the relevant reporting period, (1) the number of
Shares sold through the Agent pursuant to this Agreement and (2) the net proceeds received by the
Company from such sales or (B) prepare a prospectus supplement containing, or include in such
other filing permitted by the Securities Act or Exchange Act (each an “
Interim Prospectus
Supplement
”), such summary information and, at least once a quarter and subject to this Section
4, file such Interim Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and
within the time periods required by Rule 424(b) and Rule 430B under the Securities Act)).
(b) Securities Act Compliance. After the date of this Agreement, the Company shall
promptly advise the Agent in writing (i) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission relating to the Registration
20
Statement or the Prospectus; (ii) of the time and date of any filing of any post-effective amendment
to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or
supplement to the Prospectus, any Free Writing Prospectus; (iii) of the time and date that any post-
effective amendment to the Registration Statement or any Rule 462(b) Registration Statement
becomes effective; and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule
462(b) Registration Statement or any amendment or supplement to the Prospectus or of any order
preventing or suspending the use of any Free Writing Prospectus or the Prospectus, or of any
proceedings to remove, suspend or terminate from listing or quotation the Common Shares from
any securities exchange upon which they are listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the
Commission shall enter any such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order as soon as practicable. Additionally, the Company agrees that it
shall comply with the provisions of Rule 424(b) and Rule 433, as applicable, under the Securities
Act and will use its reasonable efforts to confirm that any filings made by the Company under such
Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities Act Matters.
If any event shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus so that the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if in the
opinion of the Agent or counsel for the Agent it is otherwise necessary to amend or supplement
the Prospectus to comply with applicable law, including the Securities Act, the Company agrees
(subject to Section 4(d) and Section 4(f)) to promptly prepare, file with the Commission and
furnish at its own expense to the Agent, amendments or supplements to the Prospectus (including
by filing a document incorporated by reference therein) so that the statements in the Prospectus as
so amended or supplemented will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with applicable law including the Securities Act. Neither
the Agent’s consent to, or delivery of, any such amendment or supplement shall constitute a waiver
of any of the Company’s obligations under Section 4(d) and Section 4(f).
(d) Agent’s Review of Proposed Amendments and Supplements. Prior to amending or
supplementing the Registration Statement (including any Rule 462(b) Registration Statement) or
the Prospectus (excluding any amendment or supplement through incorporation of any report filed
under the Exchange Act), the Company shall furnish to the Agent for review, a reasonable amount
of time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment
or supplement, but only insofar as such proposed amendment or supplement relates to the
transactions contemplated hereby, and the Company shall not file or use any such proposed
amendment or supplement without the Agent’s prior consent, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(e) Use of Free Writing Prospectus. Neither the Company nor the Agent has prepared,
used, referred to or distributed, or will prepare, use, refer to or distribute, without the other party’s
21
prior written consent, any “written communication” that constitutes a “free writing prospectus” as
such terms are defined in Rule 405 under the Securities Act with respect to the offering
contemplated by this Agreement (any such free writing prospectus being referred to herein as a
“
Free Writing Prospectus
”).
(f) Free Writing Prospectuses. The Company shall furnish to the Agent for review, a
reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each
proposed Free Writing Prospectus or any amendment or supplement thereto to be prepared by or
on behalf of, used by, or referred to by the Company and the Company shall not file, use or refer
to any proposed Free Writing Prospectus or any amendment or supplement thereto without the
Agent’s consent, which shall not be unreasonably withheld, conditioned or delayed. The Company
shall furnish to the Agent, without charge, as many copies of any Free Writing Prospectus prepared
by or on behalf of, or used by the Company, as the Agent may reasonably request. If at any time
when a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule
173(d)) to be delivered in connection with sales of the Shares (but in any event if at any time
through and including the date of this Agreement) there occurred or occurs an event or
development as a result of which any Free Writing Prospectus prepared by or on behalf of, used
by, or referred to by the Company conflicted or would conflict with the information contained in
the Registration Statement or included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time, not misleading, the Company
shall promptly amend or supplement such Free Writing Prospectus to eliminate or correct such
conflict or so that the statements in such Free Writing Prospectus as so amended or supplemented
will not include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances prevailing at such subsequent
time, not misleading, as the case may be; provided, however, that prior to amending or
supplementing any such Free Writing Prospectus, the Company shall furnish to the Agent for
review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of
such proposed amended or supplemented Free Writing Prospectus and the Company shall not file,
use or refer to any such amended or supplemented Free Writing Prospectus without the Agent’s
consent, which shall not be unreasonably withheld, conditioned or delayed.
(g) Filing of Agent Free Writing Prospectuses. The Company shall not take any action
that would result in the Agent or the Company being required to file with the Commission pursuant
to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf of the
Agent that the Agent otherwise would not have been required to file thereunder.
(h) Copies of Registration Statement and Prospectus. After the date of this Agreement
through the last time that a prospectus is required by the Securities Act (including, without
limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares, the
Company agrees to furnish the Agent with copies (which may be electronic copies) of the
Registration Statement and each amendment thereto, and with copies of the Prospectus and each
amendment or supplement thereto in the form in which it is filed with the Commission pursuant
to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as the Agent
may reasonably request from time to time; and, if the delivery of a prospectus is required under
the Securities Act or under the blue sky or securities laws of any jurisdiction at any time on or
prior to the applicable Settlement Date for any period set forth in an Issuance Notice in connection
22
with the offering or sale of the Shares and if at such time any event has occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it is necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to
notify the Agent and to request that the Agent suspend offers to sell Shares (and, if so notified, the
Agent shall cease such offers as soon as practicable); and if the Company decides to amend or
supplement the Registration Statement or the Prospectus as then amended or supplemented, to
advise the Agent promptly by telephone (with confirmation in writing) and to prepare and cause
to be filed promptly with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance, including by filing a document incorporated by reference
therein; provided, however, that if during such same period the Agent is required to deliver a
prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file
with the Commission such an amendment or supplement.
(i) Blue Sky Compliance. The Company shall cooperate with the Agent and counsel
for the Agent to qualify or register the Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws or Canadian provincial securities laws of those
jurisdictions designated by the Agent, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for the distribution of the
Shares. The Company shall not be required to qualify as a foreign corporation or to take any action
that would subject it to general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation. The Company will
advise the Agent promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the Company shall use its best efforts to
obtain the withdrawal thereof as soon as practicable.
(j) Earnings Statement. As soon as practicable, the Company will make generally
available to its security holders and to the Agent an earnings statement (which need not be audited)
covering a period of at least twelve months beginning with the first fiscal quarter of the Company
occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act; provided that the Company shall be
deemed to have furnished such statements to its security holders and the Agent to the extent they
are filed on the Commission’s EDGAR system or any successor to such system.
(k) Listing; Reservation of Shares. (a) The Company will use commercially
reasonable efforts to maintain the listing of the Shares on the Principal Market; and (b) the
Company will reserve and keep available during each period beginning on the first Trading Day
of the selling period indicated in each Issuance Notice and ending on the second Trading Day after
the earlier of (i) the last Trading Day of the applicable selling period and (ii) the date the applicable
Issuance Notice is canceled, free of preemptive rights, Shares for the purpose of enabling the
Company to satisfy its obligations under the respective Issuance Notice.
23
(l) Transfer Agent. The Company shall engage and maintain, at its expense, a registrar
and transfer agent for the Shares.
(m) Due Diligence. During the term of this Agreement, the Company will reasonably
cooperate with any reasonable due diligence review conducted by the Agent in connection with
the transactions contemplated hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during normal business hours and at
the Company’s principal offices, as the Agent may reasonably request from time to time.
(n) Representations and Warranties. The Company acknowledges that each delivery
of an Issuance Notice and each delivery of Shares on a Settlement Date shall be deemed to be (i)
an affirmation to the Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or
of such Settlement Date, as the case may be, as though made at and as of each such date, except
as may be disclosed in the Prospectus (including any documents incorporated by reference therein
and any supplements thereto); and (ii) an undertaking that the Company will advise the Agent if
any of such representations and warranties will not be true and correct as of the Settlement Date
for the Shares relating to such Issuance Notice, as though made at and as of each such date (except
that such representations and warranties shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented relating to such Shares).
(o) Deliverables at Triggering Event Dates; Certificates. The Company agrees that on
or prior to the date of the first Issuance Notice and, during the term of this Agreement after the
date of the first Issuance Notice, upon:
(A) the filing of the Prospectus or the amendment or supplement of any
Registration Statement or Prospectus (other than a prospectus supplement relating solely to an
offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)),
by means of a post-effective amendment, sticker or supplement, but not by means of incorporation
of documents by reference into the Registration Statement or Prospectus;
(B) the filing with the Commission of an annual report on Form 10-K or
a quarterly report on Form 10-Q (including any Form 10-K/A or Form 10-Q/A containing amended
financial information or a material amendment to the previously filed annual report on Form 10-
K or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the filing with the Commission of a current report on Form 8-K of
the Company containing amended financial information (other than information “furnished”
pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form
8-K relating to reclassification of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) that is material to the offering of Shares of
the Company in the Agent’s reasonable discretion;
(any such event, a “
Triggering Event Date
”), the Company shall furnish the Agent (but in the
case of clause (C) above only if the Agent reasonably determines that the information contained
in such current report on Form 8-K of the Company is material) with a certificate as of the
Triggering Event Date, in the form attached as Exhibit B hereto, modified, as necessary, to relate
24
to the Registration Statement and the Prospectus as amended or supplemented, (A) confirming that
the representations and warranties of the Company contained in this Agreement are true and
correct, (B) confirming that the Company has performed all of its obligations hereunder to be
performed on or prior to the date of such certificate and as to the matters set forth in Section
5(a)(iii) hereof, and (C) containing any other certification that the Agent shall reasonably request.
The requirement to provide a certificate under this Section 4(o) shall be automatically waived for
any Triggering Event Date occurring at a time when no Issuance Notice is pending or a suspension
is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers
instructions for the sale of Shares hereunder (which for such calendar quarter shall be considered
a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the
foregoing, if the Company subsequently decides to sell Shares following a Triggering Event Date
when a suspension was in effect and did not provide the Agent with a certificate under this Section
4(o), then before the Company delivers the instructions for the sale of Shares or the Agent sells
any Shares pursuant to such instructions, the Company shall provide the Agent with a certificate
in conformity with this Section 4(o) dated as of the date that the instructions for the sale of Shares
are issued.
(p) Legal Opinions. On or prior to the date of the first Issuance Notice and on or prior
to each Triggering Event Date with respect to which the Company is obligated to deliver a
certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the date of this
Agreement, a negative assurance letter and the written legal opinion of Davis Polk & Wardwell
LLP, counsel to the Company, and the written legal opinion of Locke Lord LLP, intellectual
property counsel to the Company, each dated the date of delivery, in form and substance
reasonably satisfactory to Agent and its counsel, substantially similar to the form previously
provided to the Agent and its counsel, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented. In lieu of such opinions for
subsequent periodic filings, in the discretion of the Agent, the Company may furnish a reliance
letter from such counsel to the Agent, permitting the Agent to rely on a previously delivered
opinion letter, modified as appropriate for any passage of time or Triggering Event Date (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented as of such Triggering Event Date).
(q) Comfort Letter. On or prior to the date of the first Issuance Notice and on or prior
to each Triggering Event Date with respect to which the Company is obligated to deliver a
certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the date of this
Agreement, the Company shall cause the Accountants, the independent registered public
accounting firm who has audited the financial statements included or incorporated by reference in
the Registration Statement, to furnish the Agent a comfort letter, dated the date of delivery, in form
and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form
previously provided to the Agent and its counsel; provided, however, that any such comfort letter
will only be required on the Triggering Event Date specified to the extent that the Triggering Event
Date filing contains financial statements filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference into a Prospectus. If requested by the
Agent, the Company shall also cause a comfort letter to be furnished to the Agent on the date of
occurrence of any material transaction or event requiring the filing of a current report on Form 8-
K containing material amended financial information of the Company, including the restatement
of the Company’s financial statements. The Company shall be required to furnish no more than
25
one comfort letter hereunder per each filing of an annual report on Form 10-K or a quarterly report
on Form 10-Q.
(r) Secretary’s Certificate. On or prior to the date of the first Issuance Notice and on
or prior to each Triggering Event Date with respect to which the Company is obligated to deliver
a certificate pursuant to Section 4(o) for which no waiver is applicable, and excluding the date of
this Agreement, the Company shall furnish the Agent a certificate executed by the Secretary of the
Company, signing in such capacity, dated the date of delivery in the form attached as Exhibit C
hereto (i) certifying that attached thereto are true and complete copies of the resolutions duly
adopted by the Board of Directors of the Company authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby (including, without
limitation, the issuance of the Shares pursuant to this Agreement), which authorization shall be in
full force and effect on and as of the date of such certificate, (ii) certifying and attesting to the
office, incumbency, due authority and specimen signatures of each Person who executed this
Agreement for or on behalf of the Company, and (iii) containing any other certification that the
Agent shall reasonably request.
(s) Agent’s Own Account; Clients’ Account. The Company consents to the Agent
trading, in compliance with applicable law, in the Common Shares for the Agent’s own account
and for the account of its clients at the same time as sales of the Shares occur pursuant to this
Agreement.
(t) Investment Limitation. The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as would require
the Company or any of its subsidiaries to register as an investment company under the Investment
Company Act.
(u) Market Activities. The Company will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in stabilization or manipulation
of the price of the Shares or any other reference security, whether to facilitate the sale or resale of
the Shares or otherwise, and the Company will, and shall use commercially reasonable efforts to
cause each of its Affiliates to, comply with all applicable provisions of Regulation M. If the
limitations of Rule 102 of Regulation M (“
Rule 102
”) do not apply with respect to the Shares or
any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then
promptly upon notice from the Agent (or, if later, at the time stated in the notice), the Company
will, and shall use commercially reasonable efforts to cause each of its Affiliates to, comply with
Rule 102 as though such exception were not available but the other provisions of Rule 102 (as
interpreted by the Commission) did apply. The Company shall promptly notify the Agent if it no
longer meets the requirements set forth in Section (d) of Rule 102.
(v) Notice of Other Sale. Without the written consent of the Agent, the Company will
not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise
dispose of any Common Shares or securities convertible into or exchangeable for Common Shares
(other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, or
effect a reverse stock split, recapitalization, share consolidation, reclassification or similar
transaction affecting the outstanding Common Shares, during the period beginning on the third
Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Agent
26
hereunder and ending on the third Trading Day immediately following the Settlement Date with
respect to Shares sold pursuant to such Issuance Notice; and will not directly or indirectly enter
into any other “at the market” or continuous equity transaction to offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Shares (other than the Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for Common Shares,
warrants or any rights to purchase or acquire, Common Shares prior to the termination of this
Agreement; provided, however, that such restrictions will not be required in connection with the
Company’s (i) issuance or sale of Common Shares, options to purchase Common Shares or
Common Shares issuable upon the exercise of options or other equity awards pursuant to any
employee or director share option, incentive or benefit plan, share purchase or ownership plan,
long-term incentive plan, dividend reinvestment plan, inducement award under the applicable rules
of the Principal Market or other compensation plan of the Company or its subsidiaries, as in effect
on the date of this Agreement or subsequently disclosed in filings by the Company available on
EDGAR, (ii) issuance or sale of Common Shares issuable upon exchange, conversion or
redemption of securities or the exercise or vesting of warrants, options or securities outstanding at
the date of this Agreement or subsequently disclosed in filings by the Company available on
EDGAR, (iii) modification of any outstanding options, warrants of any rights to purchase or
acquire Common Shares, and (iv) issuance or sale of Common Shares in connection with an
acquisition, joint venture, commercial or collaborative relationship or the acquisition or license by
the Company of the securities, business, property or other assets of another person or entity or
pursuant to any employee benefit plan as assumed by the Company in connection with any such
acquisition (provided that the aggregate number of Common Shares that the Company may issue
or sell pursuant to this clause (iv) shall not exceed 5% of the total number of Common Shares
issued and outstanding immediately prior to such issuance or sale).
(w) Emerging Growth Company Status. During the Agency Period, the Company
agrees to notify the Agent as soon as practicable upon the Company ceasing to be an Emerging
Growth Company.
Section 5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO
SETTLEMENT
(a) Conditions Precedent to the Right of the Company to Deliver an Issuance Notice
and the Obligation of the Agent to Sell Shares. The right of the Company to deliver an Issuance
Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance Notice, and
the obligation of the Agent to use its commercially reasonable efforts to place Shares during the
applicable period set forth in the Issuance Notice is subject to the satisfaction, on each Trading
Day during the applicable period set forth in the Issuance Notice, of each of the following
conditions:
(i) Accuracy of the Company’s Representations and Warranties; Performance
by the Company. The Company shall have delivered the certificate required to be delivered
pursuant to Section 4(o) on or before the date on which delivery of such certificate is required
pursuant to Section 4(o). The Company shall have performed, satisfied and complied with all
covenants, agreements and conditions required by this Agreement to be performed, satisfied or
complied with by the Company at or prior to such date, including, but not limited to, the covenants
contained in Section 4(p), Section 4(q) and Section 4(r).
27
(ii) No Injunction. No statute, rule, regulation, executive order, decree, ruling
or injunction shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby that prohibits or directly and materially adversely
affects any of the transactions contemplated by this Agreement, and no proceeding shall have been
commenced that may have the effect of prohibiting or materially adversely affecting any of the
transactions contemplated by this Agreement.
(iii) Material Adverse Effect. Except as disclosed in the Prospectus and the Time
of Sale Information, (a) in the judgment of the Agent there shall not have occurred any Material
Adverse Effect; and (b) there shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any securities of the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization”
as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.
(iv) No Suspension of Trading in or Delisting of Common Shares; Other Events.
The trading of the Common Shares (including without limitation the Shares) shall not have been
suspended by the Commission, the Principal Market or FINRA and the Common Shares (including
without limitation the Shares) shall have been approved for listing or quotation on and shall not
have been delisted from the Principal Market or any of its constituent markets. There shall not
have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below) any
of the following: (i) trading or quotation in any of the Company’s securities shall have been
suspended or limited by the Commission or by the Principal Market or trading in securities
generally on the Principal Market shall have been suspended or limited, or minimum or maximum
prices shall have been generally established on any of such stock exchanges by the Commission
or the FINRA; (ii) a general banking moratorium shall have been declared by any of federal or
New York, authorities; or (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a prospective substantial
change in United States’ or international political, financial or economic conditions, as in the
judgment of the Agent is material and adverse and makes it impracticable to market the Shares in
the manner and on the terms described in the Prospectus or to enforce contracts for the sale of
securities.
(b) Documents Required to be Delivered on each Issuance Notice Date. The Agent’s
obligation to use its commercially reasonable efforts to place Shares hereunder shall additionally
be conditioned upon the delivery to the Agent on or before the Issuance Notice Date of a certificate
in form and substance reasonably satisfactory to the Agent, executed by the principal executive
officer or principal financial officer of the Company, to the effect that all conditions to the delivery
of such Issuance Notice shall have been satisfied as at the date of such certificate (which certificate
shall not be required if the foregoing representations shall be set forth in the Issuance Notice or in
the certificate described in Section 4(o)).
(c) No Misstatement or Material Omission. The Agent shall not have advised the
Company that the Registration Statement, the Prospectus or the Time of Sale Information, or any
amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s
28
reasonable opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is
material and is required to be stated therein or is necessary to make the statements therein not
misleading.
(d) Agent Counsel Legal Opinion. Agent shall have received from Cooley LLP,
counsel for Agent, such opinion or opinions, on or before the date on which the delivery of the
Company counsel legal opinion is required pursuant to Section 4(p), with respect to such matters
as Agent may reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for enabling them to pass upon such matters.
Section 6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of the Agent. The Company agrees to indemnify and hold
harmless the Agent, its officers and employees, and each person, if any, who controls the Agent
within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which the Agent or such officer, employee or controlling person
may become subject, under the Securities Act, the Exchange Act, other federal or state statutory
law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered
or sold or at common law or otherwise (including in settlement of any litigation), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus that the Company has used, referred to or
filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and to reimburse the Agent and each such officer, employee
and controlling person for any and all documented expenses (including the reasonable and
documented fees and disbursements of counsel chosen by the Agent) as such expenses are
reasonably incurred by the Agent or such officer, employee or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information furnished to the
Company by the Agent expressly for use in the Registration Statement, any such Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and
agreed that the only such information furnished by the Agent to the Company consists of the
information described in subsection (b) below. The indemnity agreement set forth in this Section
6(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. The Agent agrees to
indemnify and hold harmless the Company, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company within the meaning
29
of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which the Company or any such director, officer or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or
sold or at common law or otherwise (including in settlement of any litigation), arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information deemed to be a part
thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact
contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; but, for each of (i) and (ii) above, only to the extent arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the Company by the Agent
expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto), it being understood and agreed that the only such
information furnished by the Agent to the Company consists of the information set forth in the
first sentence of the ninth paragraph under the caption “Plan of Distribution” in the Prospectus,
and to reimburse the Company and each such director, officer and controlling person for any and
all documented expenses (including the reasonable and documented fees and disbursements of one
counsel chosen by the Company) as such expenses are reasonably incurred by the Company or
such officer, director or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity
agreement set forth in this Section 6(b) shall be in addition to any liabilities that the Agent or the
Company may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof, but
the omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 6 or to the extent it is not prejudiced as a proximate result of such failure.
In case any such action is brought against any indemnified party and such indemnified party seeks
or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified party or parties
30
shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party under this Section 6
for any legal or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than one separate counsel
(together with local counsel), representing the indemnified parties who are parties to such action),
which counsel (together with any local counsel) for the indemnified parties shall be selected by
the indemnified party (in the case of counsel for the indemnified parties referred to in Section 6(a)
and Section 6(b) above), (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has authorized in writing
the employment of counsel for the indemnified party at the expense of the indemnifying party, in
each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying
party and shall be paid as they are incurred.
(d) Settlements. The indemnifying party under this Section 6 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the aforesaid request;
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(e) Contribution. If the indemnification provided for in this Section 6 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Agent, on the other hand, from the offering of the Shares pursuant to this
Agreement; or (ii) if the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the Agent, on the other
31
hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Agent, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total gross proceeds from the offering of the Shares (before
deducting expenses) received by the Company bear to the total commissions received by the
Agent. The relative fault of the Company, on the one hand, and the Agent, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Agent, on the other hand, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 6(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 6(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 6(e); provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 6(c) for purposes of
indemnification.
The Company and the Agent agree that it would not be just and equitable if contribution
pursuant to this Section 6(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
6(e).
Notwithstanding the provisions of this Section 6(e), the Agent shall not be required to
contribute any amount in excess of the Selling Commission received by the Agent in connection
with the offering contemplated hereby. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6(e), each
officer and employee of the Agent and each person, if any, who controls the Agent within the
meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as
the Agent, and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of
the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 7. TERMINATION & SURVIVAL
(a) Term. Subject to the provisions of this Section 7, the term of this Agreement shall
continue from the date of this Agreement until the end of the Agency Period, unless earlier
terminated by the parties to this Agreement pursuant to this Section 7.
(b) Termination; Survival Following Termination .
32
(i) Either party may terminate this Agreement prior to the end of the Agency
Period, by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice
to the other party; provided that, (A) if the Company terminates this Agreement after the Agent
confirms to the Company any sale of Shares, the Company shall remain obligated to comply with
Section 3(b)(v) with respect to such Shares and (B) Section 2, Section 3(d), Section 6, Section 7
and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the
Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the
terms of this Agreement.
(ii) In addition to the survival provision of Section 7(b)(i), the respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the Agent set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of the Agent or the Company or
any of its or their partners, officers or directors or any controlling person, as the case may be, and,
anything herein to the contrary notwithstanding, will survive delivery of and payment for the
Shares sold hereunder and any termination of this Agreement.
Section 8. MISCELLANEOUS
(a) Press Releases and Disclosure. The Company may issue a press release describing
the material terms of the transactions contemplated hereby as soon as practicable following the
date of this Agreement, and may file with the Commission a Current Report on Form 8 K, with
this Agreement attached as an exhibit thereto, describing the material terms of the transactions
contemplated hereby, and the Company shall consult with the Agent prior to making such
disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good
faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto.
No party hereto shall issue thereafter any press release or like public statement (including, without
limitation, any disclosure required in reports filed with the Commission pursuant to the Exchange
Act) related to this Agreement or any of the transactions contemplated hereby without the prior
written approval of the other party hereto, except as may be necessary or appropriate in the
reasonable opinion of the party seeking to make disclosure to comply with the requirements of
applicable law or stock exchange rules. If any such press release or like public statement is so
required, the party making such disclosure shall consult with the other party prior to making such
disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith, to
agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
(b) No Advisory or Fiduciary Relationship. The Company acknowledges and agrees
that (i) the transactions contemplated by this Agreement, including the determination of any fees,
are arm’s -length commercial transactions between the Company and the Agent, (ii) when acting
as a principal under this Agreement, the Agent is and has been acting solely as a principal is not
the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party,
(iii) the Agent has not assumed nor will assume an advisory or fiduciary responsibility in favor of
the Company with respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Agent has advised or is currently advising the Company on other
matters) and the Agent does not have any obligation to the Company with respect to the
transactions contemplated hereby except the obligations expressly set forth in this Agreement, (iv)
the Agent and its Affiliates may be engaged in a broad range of transactions that involve interests
33
that differ from those of the Company, and (v) the Agent has not provided any legal, accounting,
regulatory or tax advice with respect to the transactions contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
(c) Research Analyst Independence. The Company acknowledges that the Agent’s
research analysts and research departments are required to and should be independent from their
respective investment banking divisions and are subject to certain regulations and internal policies,
and as such the Agent’s research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company or the offering that
differ from the views of their respective investment banking divisions. The Company understands
that the Agent is a full service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of its customers and
hold long or short positions in debt or equity securities of the companies that may be the subject
of the transactions contemplated by this Agreement.
(d) Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered, sent via electronic mail (if applicable) or telecopied and confirmed to the parties
hereto as follows:
If to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 786-5719
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Cooley LLP
55 Hudson Yards
New York, NY 10001
Attention: Daniel I. Goldberg
E-mail: dgoldberg@cooley.com; josh.kaufman@cooley.com
If to the Company:
Vaxxinity, Inc.
505 Odyssey Way
Merritt Island, FL32953
Attention: General Counsel
E-mail: legal@vaxxinity.com
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
34
New York, NY 10017
Attention: Yasin Keshvargar
E-mail: yasin.keshvargar@davispolk.com
Any party hereto may change the address for receipt of communications by giving written notice
to the others in accordance with this Section 8(d).
(e) Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the employees, officers and directors and controlling persons
referred to in Section 6, and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term “successors” shall not include any purchaser of the
Shares as such from the Agent merely by reason of such purchase.
(f) Partial Unenforceability. The invalidity or unenforceability of any Article, Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any other
Article, Section, paragraph or provision hereof. If any Article, Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
(g) Governing Law Provisions. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to agreements made and
to be performed in such state. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby may be instituted in the federal courts of
the United States of America located in the Borough of Manhattan in the City of New York or the
courts of the State of New York in each case located in the Borough of Manhattan in the City of
New York (collectively, the “
Specified Courts
”), and each party irrevocably submits to the
exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding
brought in any such court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any such suit, action
or other proceeding brought in any such court has been brought in an inconvenient forum.
(h) General Provisions. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument, and
may be delivered by facsimile transmission or by electronic delivery of a portable document format
(PDF) file (including any electronic signature covered by the U.S. federal ESIGN Act of 2000,
Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com). This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Article
35
and Section headings herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
[
Signature Page Immediately Follows
]
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms
Very truly yours,
VAXXINITY, INC.
By: /s/ Mei Mei Hu
The foregoing Agreement is hereby confirmed and accepted by the Agent in New York,
New York as of the date first above written.
JEFFERIES LLC
By: /s/ Michael Magarro
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale Agreement
SM
“
Company
”) and Jefferies LLC (the “
Agent
”) dated as of August 9, 2023. The Company confirms
that all conditions to the delivery of this Issuance Notice are satisfied as of the date hereof.
Date of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
_______________________
Issuance Amount (equal to the total Sales Price for such Shares):
Maximum number of Shares to be sold (notwithstanding a higher Sale Amount)
Number of days in selling period:
First date of selling period:
Last date of selling period:
Settlement Date(s) if other than standard T+2 settlement:
Floor Price Limitation (in no event less than $1.00 without the prior written consent of the
Agent, which consent may be withheld in the Agent’s sole discretion): $ ____ per share
Comments:
By:
Exhibit B
Form of Officer’s Certificate Pursuant to Section 4(o)
The undersigned, the duly qualified and elected [●] of Vaxxinity, Inc., a Delaware
corporation (the “
Company
”), does hereby certify in such capacity and on behalf of the
Company, pursuant to Section 4(o) of the Open Market Sale Agreement
SM
, dated August 9,
2023, between the Company and Jefferies LLC (the “
Sale Agreement
”), that to the knowledge
of the undersigned:
(i) The representations and warranties of the Company in Section 2 of the Sale
Agreement are true and correct on and as of the date hereof with the same force and effect as if
expressly made on and as of the date hereof; provided, however that such representations and
warranties are qualified by the disclosure included or incorporated by reference in the
Registration Statement and Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and
(ii) The Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to the Sale Agreement at or prior to the date hereof.
Davis Polk & Wardwell LLP and Cooley LLP are entitled to rely on this certificate in
connection with the respective opinions such firms are rendering pursuant to the Sale Agreement.
Capitalized terms used herein without definition shall have the meanings given to such terms in
the Sale Agreement.
VAXXINITY, INC.
By:
Name:
Title:
Date: [•]
Exhibit C
Form of Secretary’s Certificate Pursuant to Section 4(o)
The undersigned, Secretary of Vaxxinity, Inc., a Delaware corporation (the “
Company
”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 4(o) of
the Open Market Sale Agreement
SM
, dated August 9, 2023, between the Company and Jefferies
LLC (the “
Sale Agreement
”), that to the knowledge of the undersigned:
1. Attached hereto as Appendix A is a true, correct and complete copy of the
Company’s certificate of incorporation dated [●] (the “
Certificate of Incorporation
”), filed
with the Delaware Secretary of State on [●], as in full force and effect as of the date hereof.
Since such date, no amendment to the Certificate of Incorporation has been approved by the
Board of Directors of the Company (the “
Board of Directors
”) or the shareholders of the
Company or filed with the Delaware Secretary of State.
2. Attached hereto as Appendix B is a true, correct and complete copy of the bylaws
of the Company as in effect at the date hereof and at all times since [●]. No action has been taken
by the Company or its stockholders, directors or officers to effect or authorize any amendment or
other modification to the bylaws.
3. No proceeding for the dissolution, merger, sale, consolidation or liquidation of the
Company or for the sale of all or substantially all of its assets is pending or, to the best of my
knowledge, threatened and no such proceeding is contemplated by the Company.
4. Attached hereto as Appendices C-1 and C-2, respectively, are true, correct and
complete copies of written resolutions duly adopted by (i) the Board of Directors on August [●],
2023 and (ii) the committee designated by the Board of Directors on August [●], 2023. Such
resolutions have not been amended or modified, are in full force and effect in the form adopted
and are the only resolutions adopted by the Board of Directors or by any committee of or
designated by the Board of Directors relating to (i) the Company’s Registration Statement on
Form S-3 (File No. 333-[●]) (the “
Registration Statement
”) filed with the Securities and
Exchange Commission (the “
SEC
”), and (ii) the execution and delivery of the Sale Agreement
and the consummation of the transactions contemplated thereunder (including, without
limitation, the sale of the Common Shares pursuant to such agreement).
5. Each person who, as a director or officer of the Company, signed (a) the
Registration Statement, (b) the Sale Agreement and (c) any other document or certificate
delivered under the Sale Agreement in connection with the transactions contemplated thereunder
was at the respective times of such signing and delivery and, in the case of the document referred
to under (a) above, was at the time of filing such Registration Statement with the SEC, duly
elected or appointed and acting as such director or officer and was duly authorized to execute
and deliver such document on behalf of the Company, and the signatures of such persons
appearing on such documents are their genuine signatures or true facsimiles thereof.
6. The minutes and resolutions of the Company relating to all proceedings of the
shareholders and the Board of Directors (and any committee of the Board of Directors) of the
Company made available to Davis Polk & Wardwell LLP and Cooley LLP are the original
minutes and resolutions of the Company, or are true, correct and complete copies thereof, with
respect to all such proceedings of said shareholders, Board of Directors and committees of the
Board of Directors of the Company since January 1, 2020 through the date hereof. The minutes,
resolutions and other documents of the Company made available to Davis Polk & Wardwell LLP
and Cooley LLP were true, correct and complete in all respects. There have been no material
changes, additions or alterations in said minutes, resolutions and other documents that have not
been disclosed to Davis Polk & Wardwell LLP and Cooley LLP in writing.
7. The Sale Agreement, as executed and delivered by the Company, is in
substantially the form approved by one or more of the Company’s officers pursuant to the
resolutions referred to in paragraph 4 above, under authority delegated by the Board of Directors,
and has been duly executed and delivered on behalf of the Company by an appropriate officer of
the Compan
y.
8. American Stock Transfer & Trust Company, LLC has been duly appointed by the
Company to serve as the transfer agent and registrar for the Common Shares and, as of the date
hereof, serves in such capacity for the Common Shares.
connection with the respective opinions such firms are rendering pursuant to the Sale Agreement.
Capitalized terms used herein without definition shall have the meanings given to such terms in
the Sale Agreement.
Schedule A
Notice Parties
The Company
Mei Mei Hu
The Agent
Michael Magarro
Donald Lynaugh
Exhibit 4.3
VAXXINITY, INC.
INDENTURE
Dated as of [___]
[___], as Trustee
TABLE OF CONTENTS
Page
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Section 9.01. Without Consent of Holders
38
Section 9.02. With Consent of Holders
39
4
Section 9.03. Limitations
39
Section 9.04. Compliance with Trust Indenture Act
40
Section 9.05. Revocation and Effect of Consents
40
Section 9.06. Notation on or Exchange of Securities
40
Section 9.07. Trustee Protected
41
Section 10.01. Agreement to Subordinate
41
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5
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of [___].
§ 310(a)(1).....................................................................................................
7.10
(a)(2) ....................................................................................................
7.10
(a)(3) ....................................................................................................
Not Applicable
(a)(4) ....................................................................................................
Not Applicable
(a)(5) ....................................................................................................
7.10
(b) ........................................................................................................
7.10
§ 311(a) .........................................................................................................
7.11
(b) ........................................................................................................
7.11
§ 312(a) .........................................................................................................
2.06
(b) ........................................................................................................
11.03
(c) ........................................................................................................
11.03
§ 313(a) .........................................................................................................
7.06
(b)(1) ....................................................................................................
7.06
(b)(2) ....................................................................................................
7.06
(c) ........................................................................................................
7.06
(d) ........................................................................................................
7.06
§ 314(a) .........................................................................................................
4.02, 4.03
(b) ........................................................................................................
Not Applicable
(c)(1) ....................................................................................................
11.04
(c)(2) ....................................................................................................
11.04
(c)(3) ....................................................................................................
Not Applicable
(d) ........................................................................................................
Not Applicable
(e) ........................................................................................................
11.05
(f) .........................................................................................................
Not Applicable
§ 315(a) .........................................................................................................
7.01
(b) ........................................................................................................
7.05
(c) ........................................................................................................
7.01
(d) ........................................................................................................
7.01
(e) ........................................................................................................
6.14
§ 316(a) .........................................................................................................
2.10
(a)(1)(A) ...............................................................................................
6.12
(a)(1)(B) ...............................................................................................
6.13
(a)(2) ....................................................................................................
Not Applicable
(b) ........................................................................................................
6.08
(c) ........................................................................................................
9.05
§ 317(a)(1).....................................................................................................
6.03
(a)(2) ....................................................................................................
6.04
(b) ........................................................................................................
2.05
§ 318(a) .........................................................................................................
11.01
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
6
Indenture dated as of [___], between Vaxxinity, Inc., a Delaware corporation (the “Company”),
and [___] (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.
ARTICLE 1
D
EFINITION AND
I
NCORPORATION BY
R
EFERENCE
Section 1.01. Definitions.
“Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain
taxes imposed on Holders specified therein and which are owing to such Holders.
“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or
controlled by or under direct or indirect common control with such specified Person. For the purposes of
this definition, “control” when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Agent” means any Registrar, Paying Agent, co-agent, co-registrar or Service Agent.
“Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of general
circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient
publication of such notice.
“Bearer” means anyone in possession from time to time of a Bearer Security.
“Bearer Global Security” or “Bearer Global Securities” means a Bearer Security or Securities, as
the case may be, in the form established pursuant to Section 2.02 evidencing all or part of a Series of
Bearer Securities, deposited with a common depositary for Euroclear Bank S.A./N.V., as operator of the
Euroclear System and/or Clearstream Banking, société anonyme, Luxembourg.
“Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
“Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by
the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the
Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, each day which is not a Legal Holiday.
7
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible into such equity.
“Company” means the party named as such above until a successor replaces it and thereafter
means the successor.
“Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s principal executive officer, principal financial officer or principal
accounting officer.
“Company Request” means a written request signed in the name of the Company by its Chairman
of the Board of Directors, principal executive officer, principal financial officer, principal accounting officer,
a President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business relating to this Indenture shall be principally administered, which as of the date of
this Indenture shall be located at:
[___].
“Debt” of any Person as of any date means, without duplication, all indebtedness of such Person
in respect of borrowed money, including all interest, fees and expenses owed in respect thereto (whether
or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof),
or evidenced by bonds, notes, debentures or similar instruments.
“Default” means any event which is, or after notice or passage of time would be, an Event of
Default.
“Depositary” means, with respect to the Securities of any Series issuable or issued in whole or in
part in the form of one or more Registered Global Securities, the Person designated as Depositary for
such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such Person, “Depositary” as used with respect to the
Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security” means any Security that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
“Dollars” means the currency of the United States of America.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Foreign Currency” means any currency or currency unit issued by a government other than the
government of the United States of America.
“Foreign Government Obligations” means with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by or acting as an agency or instrumentality of such
government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation
by such government, which, in either case under clauses (i) or (ii), are not callable or redeemable at the
option of the issuer thereof.
8
“Holder” or “Securityholder” means a Person in whose name a Security is registered in the
Register or the holder of a Bearer Security.
“Indenture” means this Indenture as originally executed and delivered and as supplemented or
amended from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest” with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Maturity,” when used with respect to any Security or installment of principal thereof, means the
date on which the principal of such Security or such installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for
redemption, notice of option to elect repayment or otherwise.
“Officer” means the Chairman of the Board, the principal executive officer, the principal financial
officer, the principal accounting officer, the President, any Vice-President, the Treasurer, the Secretary,
any Assistant Treasurer or any Assistant Secretary of the Company.
“Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.
“Opinion of Counsel” means a written opinion of legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.
“Person” means any individual, corporation, partnership, joint venture, association, limited liability
company, joint-stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of any Series, means the place or
places specified in accordance with Section 2.02 where the principal of and any premium and interest on
the Securities of that Series are payable, or if not so specified, in accordance with Section 4.06.
“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over
shares of Capital Stock of any other class of such Person.
“principal” of a Security means the principal of the Security plus, when appropriate, the premium,
if any, on, and any Additional Amounts in respect of, the Security.
“Registered Global Security” or “Registered Global Securities” means a Security or Securities, as
the case may be, in the form established pursuant to Section 2.02 evidencing all or part of a Series of
Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such
Depositary or nominee.
“Registered Securities” means any Security registered on the Register of the Company.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other debt instruments of the Company of any Series
authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
9
“Senior Debt” means the principal of, premium, if any, unpaid interest, and all fees and other
amounts payable in connection with the following, whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, on (x)the Debt of the Company, for money borrowed other
than (a) any Debt of the Company which when incurred and without respect to any election under Section
1111(b) of the Federal Bankruptcy Code, was without recourse to the Company, (b) any Debt of the
Company to any of its Subsidiaries, (c) Debt to any employee of the Company, (d) any liability for taxes
and (e) Trade Payables, unless the instrument creating or evidencing the same or pursuant to which the
same is outstanding provides that such Debt is not senior or prior in right of payment to the Securities, (y)
all obligations of the Company under interest rate, currency and commodity swaps, caps, floors, collars,
hedge arrangements, forward contracts or similar agreements or arrangements and (z) renewals,
extensions, modifications and refundings of any such Debt. This definition may be modified or
superseded by a supplemental indenture.
“Senior Securities” means Securities other than Subordinated Securities.
“Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.
“Stated Maturity” when used with respect to any Security or any installment of principal thereof or
interest thereon, means the date specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and payable (without regard for any
provisions for acceleration, redemption prepayment or otherwise).
“Subordinated Securities” means Securities that by the terms established pursuant to Section
2.02(i) are subordinated in right of payment to Senior Debt of the Company.
“Subordination Provisions,” when used with respect to the Subordinated Securities of any Series,
shall have the meaning established pursuant to Section 2.02(i) with respect to the Subordinated
Securities of such Series.
“Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa -77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
“Trade Payables” means accounts payable or any other Debt or monetary obligations to trade
creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course
of business in connection with the receipt of materials or services.
“Trust Officer” means any officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until
a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, “Trustee” as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
10
“U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of America is
pledged and which are not callable or redeemable at the issuer’s option.
Section 1.02. Other Definitions.
Term
Defined in
Section
“Bankruptcy Law” ..................................................................................................
6.01
“Custodian” ............................................................................................................
6.01
“Event of Default” ..................................................................................................
6.01
“Judgment Currency” ............................................................................................
11.16
“Legal Holiday” ......................................................................................................
11.07
“mandatory sinking fund payment” ........................................................................
12.01
“Market Exchange Rate” .......................................................................................
11.15
“New York Banking Day” .......................................................................................
11.16
“optional sinking fund payment” ............................................................................
12.01
“Paying Agent” ......................................................................................................
2.04
“Register”...............................................................................................................
2.04
“Registrar” .............................................................................................................
2.04
“Required Currency” ..............................................................................................
11.16
“Service Agent” .....................................................................................................
2.04
“successor person” ................................................................................................
5.01
Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any successor obligor upon the
Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as
so defined.
Section 1.04. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;
11
(iii) references to “generally accepted accounting principles” shall mean generally
accepted accounting principles in effect as of the time when and for the period as to which such
accounting principles are to be applied;
(iv) or” is not exclusive; and
(v) words in the singular include the plural, and in the plural include the singular.
ARTICLE 2
T
HE
S
ECURITIES
Section 2.01. Issuable in Series. The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution,
a supplemental indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers’ Certificate or supplemental indenture may provide for the
method by which specified terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between Series in respect of any
matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the
Indenture.
Section 2.02. Establishment of Terms of Series of Securities. At or prior to the issuance of any
Securities within a Series, the following shall be established (as to the Series generally, in the case of
Subsection 2.02(a) and either as to such Securities within the Series or as to the Series generally in the
case of Subsections 2.02(b) through 2.02(x)) by a Board Resolution, a supplemental indenture or an
Officers’ Certificate pursuant to authority granted under a Board Resolution:
(a) the title and designation of the Securities of the Series, which shall distinguish the
Securities of the Series from the Securities of all other Series, and which may be part of a Series of
Securities previously issued;
(b) any limit upon the aggregate principal amount of the Securities of the Series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.07, 2.08, 2.11, 3.06 or 9.06);
(c) if other than Dollars, the Foreign Currency or Foreign Currencies in which the Securities of
the Series are denominated;
(d) the date or dates on which the principal of the Securities of the Series is payable or the
method of determination thereof;
(e) the rate or rates (which may be fixed or variable) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall
be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon,
the right, if any, of the Company to extend the interest payment periods and the duration of the
extensions and (in the case of Registered Securities) the date or dates on which a record shall be taken
for the determination of Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(f) the place or places where and the manner in which, the principal of and any interest on
Securities of the Series shall be payable;
12
(g) the right, if any, of the Company to redeem Securities, in whole or in part, at its option and
the period or periods within which, or the date or dates on which, the price or prices at which and any
terms and conditions upon which Securities of the Series may be so redeemed, pursuant to any sinking
fund or otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
Series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or periods within which or the date or dates
on which, and any terms and conditions upon which Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i) if the Securities of such Series are Subordinated Securities, the terms pursuant to which
the Securities of such Series will be made subordinate in right of payment to Senior Debt and the
definition of such Senior Debt with respect to such Series (in the absence of an express statement to the
effect that the Securities of such Series are subordinate in right of payment to all such Senior Debt, the
Securities of such Series shall not be subordinate to Senior Debt and shall not constitute Subordinated
Securities); and, in the event that the Securities of such Series are Subordinated Securities, such Board
Resolution, Officer’s Certificate or supplemental indenture, as the case may be, establishing the terms of
such Series shall expressly state which articles, sections or other provisions thereof constitute the
“Subordination Provisions” with respect to the Securities of such Series;
(j) if other than denominations of $1,000 and any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the case of Bearer Securities, the denominations in which
Securities of the Series shall be issuable;
(k) the percentage of the principal amount at which the Securities will be issued, and, if other
than the principal amount thereof, the portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the maturity thereof and the terms and conditions of
any acceleration;
(l) if other than the coin, currency or currencies in which the Securities of the Series are
denominated, the coin, currency or currencies in which payment of the principal of or interest on the
Securities of such Series shall be payable, including composite currencies or currency units;
(m) if the principal of or interest on the Securities of the Series are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities
are denominated, the period or periods within which, and the terms and conditions upon which, such
election may be made;
(n) if the amount of payments of principal of and interest on the Securities of the Series may
be determined with reference to an index or formula based on a coin, currency, composite currency or
currency unit other than that in which the Securities of the Series are denominated, the manner in which
such amounts shall be determined;
(o) whether the Securities of the Series will be issuable as Registered Securities (and if so,
whether such Securities will be issuable as Registered Global Securities) or Bearer Securities, with or
without interest coupons appertaining thereto (and if, so whether such Securities will be issuable as
Bearer Global Securities), or any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Bearer Securities or the payment of interest thereon and the terms upon which Bearer
Securities of any Series may be exchanged for Registered Securities of such Series and vice versa;
(p) whether and under what circumstances the Company will pay additional amounts on the
Securities of the Series held by a person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company will have the option to
redeem the Securities of the Series rather than pay such additional amounts;
13
(q) if the Securities of the Series are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security of such Series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and terms of such certificates, documents or
conditions;
(r) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of
any other agents with respect to the Securities of such Series;
(s) any deletion from, modification of or addition to the Events of Default or covenants with
respect to the Securities of such Series, including, if applicable, covenants affording Holders of debt
protection with respect to the Company’s operations, financial conditions and transactions involving the
Company;
(t) if the Securities of the Series are to be convertible into or exchangeable for any other
security or property of the Company, including, without limitation, securities of another Person held by the
Company or its Affiliates and, if so, the terms thereof, including conversion or exchange prices or rate and
adjustments thereto;
(u) the price or prices at which the Securities will be issued;
(v) any provisions for remarketing;
(w) the terms applicable to any Securities issued at a discount from their stated principal
amount; and
(x) any other terms of the Series.
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate referred to above, and the authorized principal
amount of any Series may not be increased to provide for issuances of additional Securities of such
Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’
Certificate.
Section 2.03. Execution and Authentication. One or more Officers shall sign the Securities for
the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless so long as such individual was an Officer at the
time of execution of the Security.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in
the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’
Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.02, except as
provided in Section 2.08.
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Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to
Section 7.02) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture
hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers
’ Certificate complying with Section 11.04, and (c) an Opinion of Counsel complying with Section 11.04.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be
taken; or (b) if the Trustee in good faith shall determine that such action would expose the Trustee to
personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by a Trust
Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
Section 2.04. Registrar and Paying Agent. The Company shall maintain, with respect to each
Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.02,
an office or agency where Securities of such Series may be presented or surrendered for payment
(“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or
exchange (“Registrar”) and where notices and demands to or upon the Company in respect of the
Securities of such Series and this Indenture may be served (“Service Agent”). The Registrar shall keep a
register with respect to each Series of Registered Securities (the “Register”) and to their transfer and
exchange. The Company will give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to
furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands;
provided that the Corporate Trust Office shall not be an office or agency of the Company for the purpose
of effecting service of legal process on the Company.
The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant
to Section 2.02 for Securities of any Series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the name or address of
any such co-registrar, additional paying agent or additional service agent. The term “Registrar” includes
any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service
Agent” includes any additional service agent.
The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service
Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued. The Company or any of its
domestically organized Subsidiaries may act as Paying Agent, Registrar or Service Agent. So long as the
Trustee is the Service Agent, no service of legal process on the Company may be made on the Service
Agent.
The rights, privileges, protections, immunities and benefits given to the Trustee under this
Indenture including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each Agent acting hereunder.
15
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or Service Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent.
The Company may remove any Registrar, Paying Agent or Service Agent for any Series of
Securities upon written notice to such Registrar, Paying Agent or Service Agent and to the Trustee;
provided, however, that no such removal shall become effective until (1) acceptance of an appointment
by a successor as evidenced by an appropriate agreement entered into by the Company and such
successor Registrar, Paying Agent or Service Agent, as the case may be, and delivered to the Trustee or
(2) notification to the Trustee that the Trustee shall serve as Registrar, Paying Agent or Service Agent, as
the case may be, until the appointment of a successor in accordance with clause (1) above. The
Registrar, Paying Agent or Service Agent may resign at any time upon written notice; provided, however,
that the Trustee may resign as Paying Agent, Registrar or Service Agent only if the Trustee also resigns
as Trustee in accordance with Section 7.08. Upon any Event of Default under Section 6.01(e) or Section
6.01(f), the Trustee shall automatically be the Paying Agent.
Section 2.05. Paying Agent to Hold Money in Trust. Prior to each due date of the principal and
interest on any Series of Securities, the Company shall deposit with the Paying Agent (or if the Company
or a Subsidiary is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and interest when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent will hold
in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the
Paying Agent for the payment of principal of or interest on the Series of Securities, and shall notify the
Trustee of any default by the Company in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying
Agent.
Section 2.06. Securityholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the Trustee at least five
Business Days before each interest payment date, but in any event not less frequently than semi-
annually, and at such other times as the Trustee may request in writing a list, in such form and as of such
date as the Trustee may reasonably require, of the names and addresses of Securityholders of each
Series of Securities.
Section 2.07. Exchange and Registration of Transfer. The Company shall cause to be kept at
the Corporate Trust Office the Register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities of a Series and of transfers of
Securities of such Series. The Register shall be in written form or in any form capable of being converted
into written form within a reasonably prompt period of time.
Upon surrender for registration of transfer of any Security of a Series to the Registrar or any co-
registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.07, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Security of the same Series of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
Securities of a Series may be exchanged for other Securities of the same Series of any
authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to
be exchanged at any such office or agency maintained by the Company pursuant to Section 4.06.
16
Whenever any Securities of a Series are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities of the same Series that the Holder making the
exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.
All Securities of a Series issued upon any registration of transfer or exchange of Securities of the
same Series shall be the valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities of the same Series surrendered upon such
registration of transfer or exchange.
All Securities of a Series presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and the Securities of such
Series shall be duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to any holder for any registration of, transfer or exchange of
Securities, but the Company or the Trustee may require payment by the holder of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of such Securities (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.06).
Neither the Company nor the Trustee nor any Registrar shall be required to exchange, issue or
register a transfer of (a) Securities of any Series for a period of fifteen calendar days next preceding date
of mailing of a notice of redemption of Securities of that Series selected for redemption, or (b) Securities
of any Series or portions thereof called for redemption, except for the unredeemed portion of any
Securities of that Series being redeemed in part.
Section 2.08. Mutilated, Destroyed, Lost and Stolen Securities. If a mutilated Security is
surrendered to the Registrar or if the Securityholder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate and deliver a
replacement Security of the same Series if the requirements of Section 8-405 of the Uniform Commercial
Code are met, such that the Securityholder (a) satisfies the Company or the Trustee within a reasonable
time after he has notice of such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the Company or the Trustee prior to
the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform
Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the
Company or the Trustee. If required by the Trustee or the Company, such Securityholder shall furnish an
indemnity bond sufficient in the judgment of the Trustee to protect the Trustee and any Agent and in the
judgment of the Company to protect the Company, the Trustee, the Paying Agent and the Registrar from
any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge
the Securityholder for their expenses in replacing a Security. In case any Security which has matured or
is about to mature or has been called for redemption, shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
(without surrender thereof except in the case of a mutilated Security), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in
every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if
applicable, any Paying Agent evidence to their satisfaction of the destruction, loss or theft of such
Securities and of the ownership thereof.
Every replacement Security of any Series issued pursuant to this Section is an additional
obligation of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities of the same Series replaced.
17
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.09. Outstanding Securities. The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest on a Registered Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding. A Security
does not cease to be outstanding because the Company or an Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds on
the Maturity of Securities of a Series money sufficient to pay such Securities (or portions thereof) payable
on that date, and the Paying Agent is not prohibited from paying such money to the Securityholders of
such Series on that date pursuant to the terms of the Indenture, then on and after that date such
Securities of the Series (or portions thereof) cease to be outstanding and interest on them ceases to
accrue.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
Section 2.10. Treasury Securities. In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any direction, waiver or consent, Securities of a Series
owned by the Company, any other obligor upon the Securities or an Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, waiver or consent
only Securities of a Series that the Trustee knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or
any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with such advice. Upon written
request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing
and identifying all Securities, if any, known by the Company to be owned or held by or for the account of
any of the above-described persons; and, subject to Sections 7.01 and 7.02, the Trustee shall be entitled
to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Securities not listed therein are outstanding for the purpose of any such determination.
Section 2.11. Temporary Securities. Pending the preparation of Securities in certificated form,
the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall,
upon a Company Order, authenticate and deliver temporary Securities (printed, lithographed, typewritten,
photocopied or otherwise produced). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the Securities in certificated form, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined by the
Company. Every such temporary Security shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in substantially the same manner,
and with the same effect, as the Securities in certificated form. Without unreasonable delay, the Company
will execute and deliver to the Trustee or such authenticating agent Securities of the same Series in
certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor,
at each office or agency maintained by the Company pursuant to Section 4.07 and the Trustee or such
18
authenticating agent shall authenticate and make available for delivery in exchange for such temporary
Securities an equal aggregate principal amount of Securities of the same Series in certificated form. Such
exchange shall be made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to
the same limitations under this Indenture as Securities of the same Series in certificated form
authenticated and delivered hereunder.
Section 2.12. Cancellation. The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and
dispose of such cancelled Securities in accordance with its customary procedure. The Company may not
issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Securities in place of cancelled Securities other than pursuant to the terms
of this Indenture.
Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable
on the defaulted interest, to the Persons who are Securityholders of the Series on a subsequent special
record date. The Company shall fix or cause to be fixed any such special record date and payment date
to the reasonable satisfaction of the Trustee and shall promptly mail or cause to be mailed or deliver by
electronic transmission to each Securityholder of the Series a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid. The Company may pay defaulted
interest in any lawful manner.
Section 2.14. Registered Global Securities.
(a) Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’
Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form
of one or more Registered Global Securities and the Depositary for such Registered Global Security or
Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in
Section 2.07 of the Indenture and in addition thereto, any Registered Global Security shall be
exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Registered Global Security or if at any time
such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depositary within 90 days of such event or (ii) the Company
executes and delivers to the Trustee an Officers’ Certificate to the effect that such Registered Global
Security shall be so exchangeable. Any Registered Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names as the Depositary
shall direct in writing in an aggregate principal amount equal to the principal amount of the Registered
Global Security with like tenor and terms.
Except as provided in this Section 2.14(b), a Registered Global Security may not be transferred
except as a whole by the Depositary with respect to such Registered Global Security to a nominee of
such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a
successor Depositary.
(c) Legend. Any Registered Global Security issued hereunder shall bear a legend in
substantially the following form:
“This Security is a Registered Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depositary or a nominee of the Depositary. This
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Security is exchangeable for Securities registered in the name of a Person other than the
Depositary or its nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a
nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.”
(d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize
participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.
(e) Payments. Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.02, payment of the principal of and interest, if any, on any
Registered Global Security shall be made to the Holder thereof.
(f) Consents, Declaration and Directions. Except as provided in Section 2.14(d), the
Company, the Trustee and any Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Registered Global Security as shall be specified in
a written statement of the Depositary with respect to such Registered Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant
to this Indenture.
Section 2.15. Computation of Interest. Except as otherwise specified pursuant to Section 2.02
for Securities of any Series, interest on the Securities of each Series shall be computed on the basis of a
360 -day year of twelve 30 -day months.
Section 2.16. CUSIP and ISIN Numbers. The Company in issuing the Securities may use
“CUSIP” and “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” and
“ISIN” numbers in notices of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of
any changes to the CUSIP and ISIN numbers.
ARTICLE 3
R
EDEMPTION
Section 3.01. Notice to Trustee. The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the
Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to
the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company shall give the notice at least 35 calendar
days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.02. Selection of Securities to be Redeemed. Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to
be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that have denominations larger
than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or
whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations
20
pursuant to Section 2.02(j), the minimum principal denomination for each Series and integral multiples
thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for redemption.
Section 3.03. Notice of Redemption. Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 10 days but not
more than 60 days before a redemption date, the Company shall provide a notice of redemption by
electronic transmission or first-class mail to each Holder whose Securities are to be redeemed and if any
Bearer Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price, or if not then ascertainable, the manner of calculation thereof;
(c) the name and address of the Paying Agent;
(d) if less than all Securities of any Series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the principal amount of any Security to be
redeemed in part;
(e) that Securities of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that interest on Securities of the Series called for redemption ceases to accrue on and after
the redemption date;
(g) the nature of any conditions precedent to the Company’s obligation to redeem the
Securities on the redemption date; and
(h) any other information as may be required by the terms of the particular Series or the
Securities of a Series being redeemed.
At the Company’s written request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense and provided that the form and content of such notice
shall be prepared by the Company.
Section 3.04. Effect of Notice of Redemption. Once notice of redemption is transmitted, mailed
or published as provided in Section 3.03, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to, but excluding, the redemption
date.
Section 3.05. Deposit of Redemption Price. On or before the redemption date, the Company
shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in
part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4
C
OVENANTS
Section 4.01. Payment of Principal and Interest. The Company shall duly and punctually pay
the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such
Securities and this Indenture.
Section 4.02. SEC Reports. The Company shall furnish to the Trustee within 15 days after the
filing by the Company with the SEC copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). The Company
will be deemed to have furnished such reports referred to in this Section to the Trustee if the Company
has filed such reports with the SEC via the EDGAR filing system (or any successor thereto) and such
reports are publicly available.
Section 4.03. Compliance Certificate. The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, a brief certificate from the principal executive
officer, principal financial officer, principal accounting officer or vice president or treasurer as to his or her
knowledge of the Company’s compliance with all conditions and covenants under this Indenture (which
compliance shall be determined without regard to any period of grace or requirement of notice provided
under this Indenture) and, in the event of any Default, specifying each such Default and the nature and
status thereof of which such Person may have knowle dge. Such certificates need not comply with Section
11.05 of this Indenture.
Section 4.04. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities;
and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
Section 4.05. Corporate Existence. Subject to Article 5, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory), licenses and franchises of the Company; provided, however, that the
Company shall not be required to preserve any such right, license or franchise, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material
respect to the Holders.
Section 4.06. Maintenance of Office or Agency. The Company will maintain an office or
agency in the United States, where the Securities of a Series may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities of a Series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.
The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Securities of a Series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give prompt written notice to the
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Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
Section 4.07. Money For Securities Payments to be Held in Trust. If the Company shall at any
time act as its own Paying Agent with respect to the Securities of any Series, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on any of such Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and
premium or interest so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly notify the Trustee of any failure by the
Company (or any other obligor of such Securities) to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the Securities of any Series, it
shall, on or before each due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sums to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any Series, other than the
Company or the Trustee, to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(i) hold all sums held by it for the payment of the principal of and premium, if any, or
interest, if any, on such Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any failure by the Company (or any other obligor upon
such Securities) to make any payment of principal of or premium, if any, or interest, if any, on
such Securities; and
(iii) at any time during the continuance of any such failure, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding the names and addresses of
the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying
Agent and, if so stated in a Company Order delivered to the Trustee, in accordance with the provisions of
Article 8; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of and premium, if any, or interest, if any, on any Security and
remaining unclaimed for two years after such principal and premium, if any, or interest, if any, has
become due and payable shall be paid to the Company on request of the Company, or, if then held by the
Company, shall be discharged from such trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the Holder of an outstanding Security, look
only to the Company for payment of the amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such payment to the Company, may at the expense of the
Company cause to be published once a week for two successive weeks, in each case on any day of the
week, in an Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed
23
and that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be paid to the Company.
Section 4.08. Waiver of Certain Covenants. Except as otherwise specified as contemplated by
Section 2.02 for Securities of such Series, the Company may, with respect to the Securities of any Series,
omit in any particular instance to comply with any term, provision or condition set forth in any covenant
provided herein or pursuant to Section 2.02(s) or Section 9.01(c) for the benefit of the Holders of such
Series if before the time for such compliance the Holders of at least 50% in principal amount of the
outstanding Securities of such Series shall, by an Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or condition, but no such wavier
shall extend to or affect such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of such term, provision or condition shall remain in full force and effect.
ARTICLE 5
S
UCCESSORS
Section 5.01. When Company May Merge, Etc. The Company shall not consolidate with or
merge into, or convey, transfer or lease all or substantially all of its properties and assets to, any Person
(a “successor person”), and may not permit any Person to merge into, or convey, transfer or lease its
properties and assets substantially as an entirety to, the Company, unless:
(a) either the Company shall be the continuing corporation or the successor person (if other
than the Company) is a corporation, partnership, trust or other entity organized and validly existing under
the laws of the United States of America, any State thereof or the District of Columbia and expressly
assumes the Company’s obligations on the Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default or Event of Default, shall have
occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted. The successor person formed by such
consolidation or into which the Company is merged or to which such transfer or lease is made shall
succeed to and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person had been named as the Company herein, and
thereafter (except in the case of a lease to another Person) the predecessor corporation shall be relieved
of all obligations and covenants under the Indenture and the Securities and, in the event of such
conveyance or transfer, any such predecessor corporation may be dissolved and liquidated.
ARTICLE 6
D
EFAULTS AND
R
EMEDIES
Section 6.01. Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any Series, means any one
of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers’
Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) a default in the payment of any interest on any Security of that Series when it becomes
due and payable, and continuance of such default for a period of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration
24
of such period of 30 days); provided that, a valid extension of an interest payment period by the Company
in accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) a default in the payment of the principal of, or premium, if any, on, any Security of that
Series when due at its Maturity; or
(c) a default in the deposit of any sinking fund payment, when and as due in respect of any
Security of that Series; or
(d) a default, subject to the provisions in Section 4.08, in the performance or breach of any
covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been
included in this Indenture solely for the benefit of Series of Securities other than that Series), which
default continues uncured for a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities of that Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(e) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company for all or substantially all of its property, or
(iii) orders the liquidation of the Company, and the order or decree remains unstayed
and in effect for 60 days; or
(g) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance
with Section 2.02(s).
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the
relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any Bankruptcy Law.
Section 6.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default
described in Section 6.01(a), (b) or (c) occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of
each such affected series then outstanding hereunder (each such series voting as a separate class) by
notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such series are Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) of all Securities of such series, and the interest accrued
25
thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall
become immediately due and payable.
Except as otherwise provided in the terms of any series of Senior Securities pursuant to Section
2.02, if an Event of Default described in Section 6.01(d) or (g) above with respect to all series of the
Senior Securities then outstanding, occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Senior Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Senior Securities
then outstanding hereunder (treated as one class) by notice in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if the Senior Securities of any series are
Discount Securities, such portion of the principal amount as may be specified in the terms of such series)
of all of the Senior Securities then outstanding, and the interest accrued thereon, if any, to be due and
payable immediately, and upon such declaration, the same shall become immediately due and payable. If
an Event of Default described in Section 6.01(e) or 6.01(f) above occurs and is continuing, then the
principal amount of all the Senior Securities then outstanding, and the interest accrued thereon, if any,
shall become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to
Section 2.02,, if an Event of Default described in Section 6.01(d) or (g) above with respect to all series of
Subordinated Securities then outstanding, occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Subordinated Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the
Subordinated Securities then outstanding hereunder (treated as one class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the
Subordinated Securities of any series are Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all of the Subordinated Securities then outstanding, and
the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the
same shall become immediately due and payable.
If an Event of Default described in Section 6.01(d) or (g) occurs and is continuing, which Event of
Default is with respect to less than all series of Senior Securities then outstanding, then, and in each and
every such case, except for any series of Senior Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Senior Securities of each such affected series then outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately due and payable.
If an Event of Default described in Section 6.01(d) or (g) occurs and is continuing, which Event of
Default is with respect to less than all series of Subordinated Securities then outstanding, then, and in
each and every such case, except for any series of Subordinated Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Subordinated Securities of each such affected series then outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series
are Discount Securities, such portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately due and payable.
If an Event of Default specified in Section 6.01(e) or (f) shall occur, the principal amount (or
specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
26
At any time after such a declaration of acceleration with respect to any Series has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of that Series,
(ii) the principal of any Securities of that Series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(iii) to the extent that payment of such interest is lawful, interest upon any overdue
principal and overdue interest at the rate or rates prescribed therefor in such Securities,
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and
(v) all Events of Default with respect to Securities of that Series, other than the non-
payment of the principal of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security when due at the Maturity
thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by the terms
of a Security, then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders
of such Securities, the whole amount then due and payable on such Securities for principal and interest
and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal or any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of
Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most
27
effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 6.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.05. Trustee May Enforce Claims without Possession of Securities. All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.06. Application of Money Collected. Any money or property collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money or property on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.07; and
Second: To the payment of the amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
28
Third: To the Company.
Section 6.07. Limitation on Suits. No Holder of any Security of any Series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of an Event of Default and
the continuance thereof with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series shall have made written request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable security or indemnity
satisfactory to the Trustee against the expenses and liabilities to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
Section 6.08. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such
Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
Section 6.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair
29
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 6.12. Control by Holders. The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(c) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Trust Officer of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind
an acceleration and its consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security
on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date).
ARTICLE 7
T
RUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the
conduct of such Person’s own affairs.
(a) Except during the continuance of an Event of Default:
30
(i) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no other implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; however, the Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(b) The Trustee may not be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take
with respect to Securities of any Series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the outstanding Securities of such Series.
(c) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraph (a), (b), (c) and (g) of this Section.
(d) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions
of the TIA.
Section 7.02. Rights of Trustee. (a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(a) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officers’ Certificate or Opinion of Counsel.
(b) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(c) The Trustee shall not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
31
(d) The Trustee may consult with counsel, and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such counsel.
(e) The Trustee shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses, losses and liabilities which may be incurred
therein or thereby.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee, including,
without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(h) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such certificate previously delivered
and not superseded.
(i) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(i) Delivery of reports, information and documents to the Trustee under Section 4.02
is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(ii) Notwithstanding anything in this Indenture to the contrary, neither the Trustee nor
any Agent shall be responsible or liable to any person for any indirect, special, punitive or
consequential damage or loss (including but not limited to lost profits) whatsoever, even if the
Trustee has been informed of the likelihood thereof and regardless of the form of action.
Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee is also subject to Sections 7.10 and 7.11.
Section 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible and makes no
representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable
for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities or in any document issued in connection with the sale of the Securities or in
the Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to a Trust Officer of the Trustee, the Trustee shall
send to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within 90
32
days after it occurs or 30 days after it is known to a Trust Officer or written notice of it is received by the
Trustee. Except in the case of a Default or Event of Default in payment of principal, premium, if any, of or
interest on any Security of any Series or in payment of any redemption obligation, the Trustee may
withhold the notice if and so long as its corporate trust committee or a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of Securityholders of that Series.
Section 7.06. Reports by Trustee to Holders. As promptly as practicable after each May 15
beginning with [___], and in any event prior to July 15 in each year, the Trustee shall transmit by mail or
by electronic transmission to all Securityholders, as their names and addresses appear on the register
kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper,
a brief report dated as of May 15, each year if and to the extent required by TIA § 313(a). The Trustee
shall also comply with TIA § 313(b) and TIA § 313(c).
A copy of each report at the time of its sending to Securityholders of any Series shall be filed with
the SEC and each stock exchange (if any) on which the Securities of that Series are listed. The Company
shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange and of
any delisting thereof.
Section 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from time
to time such compensation as the Company and the Trustee shall from time to time agree in writing. The
Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts. The Company shall indemnify the Trustee, its
officers, directors, employees and agents, and hold each of them harmless, against any and all loss,
liability or expense (including reasonable attorneys’ fees) incurred by or in connection with the offer and
sale of the Securities or the administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided, however, that any failure so to notify the Company shall not relieve
the Company of its indemnity obligations hereunder. The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company’s expense in the defense. Such
indemnified parties may have separate counsel and the Company shall pay the fees and expenses of
such counsel; provided, however, that the Company shall not be required to pay such fees and expenses
if it assumes such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment,
there is no conflict of interest between the Company and such parties in connection with such defense.
The Company need not reimburse any expense or indemnify against any loss, liability or expense
incurred by an indemnified party through such party’s own willful misconduct and gross negligence.
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior
to the Securities of any Series on all money or property held or collected by the Trustee other than money
or property held in trust to pay principal of and interest and any liquidated damages on particular
Securities of that Series.
The Company’s payment obligations pursuant to this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(f) or (g) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee. The Trustee may resign with respect to the Securities
of one or more Series at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying
33
the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee with respect
to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Securities of any Series and such Securityholders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each
Series of Securities for which it is acting as Trustee under this Indenture. The successor Trustee shall
send a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an Authorized Newspaper. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities of the applicable Series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more Series fails to comply with Section
7.10, any Securityholder of the applicable Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee corporation without any further
act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee with respect to the Securities of any one or more Series shall succeed to the trusts created by
this Indenture any of the Securities of the applicable Series shall have been authenticated but not
delivered, any such successor to such Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Securities of the applicable Series so authenticated; and in case at
that time any of the Securities of such Series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities of such Series or in this Indenture provided that the certificate of the
Trustee shall have.
34
Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements
of TIA § 310(a). The Trustee shall have a combined capital and surplus of at least $100,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b);
provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or participation in other securities of the
Company are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims against Company. The Trustee shall comply
with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE 8
S
ATISFACTION AND
D
ISCHARGE
;
D
EFEASANCE
Section 8.01. Satisfaction and Discharge of Indenture. This Indenture, with respect to
Securities of any Series (if all Series issued under this Indenture are not to be effected) shall, upon
Company Order, cease to be of further effect (except as hereinafter provided in this Section 8.01), and
the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the
Company acknowledging satisfaction and discharge of this Indenture, when
(a) Either
(i) all Securities of such Series theretofore authenticated and delivered (other than
(A) Securities that have been destroyed, lost or stolen and that have been replaced or paid or (B)
Securities for whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Sections 2.05 and 4.07) have been delivered to the Trustee for cancellation; or
(ii) all such Securities of such Series not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, or
(D) are deemed paid and discharged pursuant to Section 8.03, as
applicable;
and the Company, in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire
indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on, and any mandatory sinking fund payments to the date of such deposit (in
the case of Securities of such Series which have become due and payable on or prior to the date of such
deposit) or to the Stated Maturity or redemption date, as the case may be;
(iii) the Company has paid or caused to be paid all other sums payable hereunder by
the Company; and
(iv) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
35
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.07, and, if money shall have been deposited with the Trustee pursuant to
clause (a) of this Section, the provisions of Sections 2.04, 2.07, 2.08, 4.07 (last paragraph only), 8.01,
8.02 and 8.05 shall survive.
Section 8.02. Application of Trust Funds; Indemnification. (a) Subject to the provisions of
Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and U.S.
Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to
Section 8.03 or 8.04, and all money received by the Trustee in respect of U.S. Government Obligations or
Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be
held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company if acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(a) The Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.03 or 8.04, or the interest and principal received in respect
of such obligations other than any payable by or on behalf of Holders.
(b) The Trustee shall deliver or pay to the Company from time to time upon Company Request
any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in
Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the
amount thereof which then would have been required to be deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign
Government Obligations held under this Indenture.
Section 8.03. Legal Defeasance of Securities of any Series. Unless this Section 8.03 is
otherwise specified, pursuant to Section 2.02(x), to be inapplicable to Securities of any Series, the
Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding
Securities of such Series on the 91st day after the date of the deposit referred to in subparagraph (d)
hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series,
shall no longer be in effect (and the Trustee, at the expense of the Company, shall, at Company Request,
execute such instruments reasonably requested by the Company acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive, from the trust funds described
in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest
on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of
principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the
Securities of such Series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.04, 2.07, 2.08, 8.02, 8.03 and 8.05; and
(c) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited irrevocably with the Trustee
as trust funds in trust for the purpose of making the following payments, specifically pledged as security
for and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be
36
legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if
any, on all the Securities of such Series on the dates such installments of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel from a nationally recognized law firm to the effect that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of
such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such deposit constituting an
investment company (as defined in the Investment Company Act of 1940, as amended), or such trust
shall be qualified under such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated
by this Section 8.03 have been complied with.
Section 8.04. Covenant Defeasance. Unless this Section 8.04 is otherwise specified pursuant
to Section 2.02(x) to be inapplicable to Securities of any Series, on and after the date of the deposit
referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision or
condition set forth under Sections 4.02, 4.03, 4.04, 4.05 and 5.01 as well as any additional covenants
contained in a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or
an Officers’ Certificate delivered pursuant to Section 2.02(x) (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default under Section 6.01) and the occurrence of
any event described in clause (e) of Section 6.01 shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series, provided that the following conditions shall have
been satisfied:
(a) with reference to this Section 8.04, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.02(c)) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money
or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or
37
(ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and
principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof delivered to the
Trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or principal are due;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee an Opinion of Counsel from a nationally
recognized law firm confirming that Holders of the Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers’ Certificate stating the deposit
was not made by the Company with the intent of preferring the Holders of the Securities of such Series
over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company; and
(f) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the defeasance
contemplated by this Section 8.04 have been complied with.
Section 8.05. Repayment to Company. The Trustee and the Paying Agent shall promptly pay
to the Company (or its designee) upon Company Order any excess moneys or U.S. Government
Obligations held by them at any time. The provisions of the last paragraph of Section 4.07 shall apply to
any money held by the Trustee or any Paying Agent that remains unclaimed for two years after the
Maturity of any Series or Securities for which money or U.S. Government Obligations have been
deposited pursuant to Sections 8.03 and 8.04.
Section 8.06. Effect of Subordination Provisions. Unless otherwise expressly established
pursuant to Section 2.02 with respect to the Subordinated Securities of any Series, the provisions of
Article 10 hereof, insofar as they pertain to the Subordinated Securities of such series, and the
Subordination Provisions established pursuant to Section 2.02(i) with respect to such Series, are hereby
expressly made subject to the provisions for satisfaction and discharge and defeasance and covenant
defeasance set forth in this Article 8 and, anything herein to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge and defeasance and covenant defeasance pursuant to
this Article 8 with respect to the Securities of such Series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Article 10 or the Subordination Provisions
established pursuant to Section 2.02(i) with respect to such series and, without limitation to the foregoing,
all moneys, U.S. Government Obligations and other securities or property deposited with the Trustee (or
other qualifying trustee) in trust in connection with such satisfaction and discharge, defeasance or
covenant defeasance, as the case may be, and all proceeds therefrom may be applied to pay the
principal of, premium, if any, on, and mandatory sinking fund payments, if any with respect to the
Securities of such Series as and when the same shall become due and payable notwithstanding the
provisions of Article 10 or such Subordination Provisions.
38
ARTICLE 9
A
MENDMENTS AND
W
AIVERS
Section 9.01. Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities
of one or more Series any property or assets;
(b) to comply with Article 5;
(c) to add to the covenants of the Company such further covenants, restrictions, conditions or
provisions as the Company and the Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) add a guarantor or permit any Person to guarantee the obligations under any Series of
Securities;
(e) to cure any ambiguity, defect or inconsistency;
(f) to provide for the issuance of and establish the form and terms and conditions of Securities
of any Series as permitted by this Indenture;
(g) to conform to any provision of the “Description of the Notes” section, “Description of Debt
Securities” section or other relevant section describing the terms of the Securities of the applicable
prospectus, prospectus supplement, offering circular, offering memorandum or other relevant offering
document;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee;
(i) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(j) to make any change that does not materially adversely affect the rights of any
Securityholder; and
(k) to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA.
Section 9.02. With Consent of Holders. The Company and the Trustee may enter into a
supplemental indenture with the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities of each Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
39
Indenture or of any supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the
Securities of such Series) may waive compliance by the Company with any provision of this Indenture or
the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to
approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if
such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall send to the Holders of Securities affected thereby and, if
any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized
Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company
to send or publish such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.03. Limitations. Without the consent of each Securityholder affected, an amendment
or waiver may not:
(a) extend the final maturity of any Security;
(b) reduce the principal amount thereof, or premium thereon, if any;
(c) reduce the rate or extend the time of payment of interest thereon,
(d) reduce any amount payable on redemption thereof;
(e) make the principal thereof (including any amount in respect of original issue discount), or
premium thereon, if any, or interest thereon payable in any coin or currency other than that provided in
the Securities or in accordance with the terms thereof;
(f) reduce the amount of the principal of a Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 6.02 or the amount thereof provable in
bankruptcy pursuant to Section 6.04;
(g) in the case of Subordinated Securities of any series, modify any of the Subordination
Provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the
holders of such Subordinated Securities;
(h) alter the provisions of Sections 11.15 or 11.16;
(i) impair or affect the right of any Securityholder to institute suit for the payment thereof when
due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder;
(j) reduce the aforesaid percentage of Securities of any Series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(k) modify any provision of this Section 9.03.
Section 9.04. Compliance with Trust Indenture Act. Every amendment to this Indenture or the
Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
40
Section 9.05. Revocation and Effect of Consents. Until an amendment or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of
Section 9.03. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining
the Securityholders entitled to give their consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such Persons continue to be
Securityholders after such record date.
Section 9.06. Notation on or Exchange of Securities. The Trustee may place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon
written request new Securities of that Series that reflect the amendment or waiver.
Section 9.07. Trustee Protected. In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental indenture that
adversely affects its rights.
ARTICLE 10
S
UBORDINATION OF
S
ECURITIES
Section 10.01. Agreement to Subordinate. The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Subordinated Securities of any Series by his acceptance
thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and
interest, if any, on, and mandatory sinking fund payments, if any, in respect of each and all of the
Subordinated Securities of such series shall be expressly subordinated, to the extent and in the manner
provided in the Subordination Provisions established with respect to the Subordinated Securities of such
Series pursuant to Section 2.02(i) hereof, in right of payment to the prior payment in full of all Senior Debt
with respect to such Series.
ARTICLE 11
M
ISCELLANEOUS
Section 11.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required or deemed to be included in this Indenture by the TIA,
such required or deemed provision shall control.
41
Section 11.02. Notices. Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person, mailed by first-class mail or delivered by electronic
transmission:
if to the Company:
[___]
if to the Trustee:
[___]
The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be provided by electronic transmission or
by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities
are outstanding, published in an Authorized Newspaper. Failure to provide a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is provided or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company provides a notice or communication to Securityholders, it shall provide a copy to
the Trustee and each Agent at the same time.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice by the Company when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice.
Notwithstanding anything in this Indenture to the contrary, wherever notice is to be given to
Securityholders of Registered Global Securities, it shall be sufficient if such notice is given in accordance
with the procedures of the Depositary.
Section 11.03. Communication by Holders with Other Holders. Securityholders of any Series
may communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series
with respect to their rights under this Indenture or the Securities of that Series or all Series. The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this Indenture,
the Company shall furnish to the Trustee:
(a) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
42
(a) a statement that the person making such certificate or opinion has read such covenant or
condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Section 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 11.07. Legal Holidays. Unless otherwise provided by Board Resolution, Officers’
Certificate or supplemental indenture for a particular Series, a “Legal Holiday” is a Saturday, Sunday or a
day on which banking institutions in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, are not required by any applicable law or regulation to
be open. If a payment date for the payment of principal or interest on any Security falls on a Legal
Holiday, such payment shall be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 11.08. No Recourse Against Others. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance of the Securities and the coupons, if any,
appertaining thereto by the Holders thereof and as part of the consideration for the issue of the Securities
and the coupons, if any, appertaining thereto.
Section 11.09. Counterparts. This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement.
Section 11.10. Governing Laws; Waiver of Jury Trial. THIS INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-
1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS
AND RULES 327(b).
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
43
Section 11.12. Successors. All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 11.13. Severability. In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 11.14. Table of Contents, Headings, Etc. The Table of Contents, Cross Reference
Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 11.15. Securities in a Foreign Currency. Unless otherwise specified in a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.02
of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture
any action may be taken by the Holders of a specified percentage in aggregate principal amount of
Securities of all Series or all Series affected by a particular action at the time outstanding and, at such
time, there are outstanding Securities of any Series which are denominated in a coin or currency other
than Dollars, then the principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained
for such amount at the Market Exchange Rate at such time. For purposes of this Section 11.15, “Market
Exchange Rate” shall mean the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from
one or more major banks in The City of New York or in the country of issue of the currency in question.
The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of
Securities of a Series denominated in currency other than Dollars in connection with any action taken by
Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 11.16. Judgment Currency. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of or interest or other amount on the
Securities of any Series (the “Required Currency”) into a currency in which a judgment will be rendered
(the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day preceding the day on
which final unappealable judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture. For purposes of the
foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The
44
City of New York on which banking institutions are authorized or required by law, regulation or executive
order to close.
Section 11.17. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all Series may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
“ACT” of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of
execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 7.01 and 7.02) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 11.17.
(a) Subject to Sections 7.01 and 7.02, the execution of any instrument by a Securityholder or
his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of
Registered Securities shall be proved by the Security register or by a certificate of the registrar thereof.
(b) The Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the person in whose name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment
of or on account of the principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Holder of any Bearer Security as the absolute
owner of such Bearer Security (whether or not such Bearer Security shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such
Bearer Security. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or
any Agent from giving effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its members, the operation of customary practices
governing the exercise of the rights of a holder of a beneficial interest in any Registered Global Security
(c) At any time prior to (but not after) the evidencing to the Trustee, as provided in this Section
11.17, of the taking of any action by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented to such action may, by
filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities
affected by such action.
Section 11.18. Force Majeure. In no event shall the Trustee or any Agent be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by,
45
directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee and such Agent shall use reasonable efforts that
are consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE 12
S
INKING
F
UNDS
Section 12.01. Applicability of Article. The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by
any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided
for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If
provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any Series as provided for by the terms of the Securities of such Series.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities. The Company may, in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to
be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such Securities previously called for
mandatory sinking fund redemption) and (b) apply as credit Securities of such Series to which such
sinking fund payment is applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or
through the application of permitted optional sinking fund payments or other optional redemptions
pursuant to the terms of such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate with
respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of
selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in
lieu of cash payments pursuant to this Section 12.02, the principal amount of Securities of such Series to
be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon receipt of a Company Order that such
action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent
shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.
Section 12.03. Redemption of Securities for Sinking Fund. Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers’ Certificate in
respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is
to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 12.02, and the
optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless
otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a
46
particular Series of Securities) before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.03. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in Sections 3.04, 3.05 and 3.06.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as
of the day and year first above written.
Vaxxinity, Inc.
By:
Name:
Title:
[___], Trustee
By:
Name:
Title:
Exhibits 5.1 and 23.2
OPINION OF DAVIS POLK & WARDWELL LLP
August 9, 2023
Vaxxinity, Inc.
505 Odyssey Way
Merritt Island, Florida 32953
Ladies and Gentlemen:
Vaxxinity, Inc., a Delaware corporation (the “
Company
”), is filing with the Securities and Exchange
Commission a Registration Statement on Form S-3 (the “
Registration Statement
”) for the purpose of
registering under the Securities Act of 1933, as amended (the “
Securities Act
”), (a) shares of Class A
common stock, par value $0.0001 per share (the “
Class A Common Stock
”), of the Company, including
shares of Class A Common Stock having an aggregate offering price of up to $100,000,000 (such shares
of Class A Common Stock, the “
Offered Shares
”) from time to time through Jefferies LLC pursuant to the
Open Market Sale Agreement dated August 9, 2023 (the “
Sales Agreement
”) among the Company and
Jefferies LLC (the “
Sales Agent
”); (b) shares of preferred stock, par value $0.0001 per share (the
“
Preferred Stock
”), of the Company; (c) the Company’s debt securities (collectively, the “
Debt
Securities
”), which may be issued pursuant to an indenture, between the Company and a trustee to be
named therein, as trustee (the “
Trustee
”) (the “
Indenture
”); (d) warrants of the Company (the
“
Warrants
”), which may be issued under one or more warrant agreements (each, a “
Warrant
Agreement
”) to be entered into between the Company and the warrant agent to be named therein (the
“
Warrant Agent
”); (e) subscription rights (the “
Subscription Rights
”), which may be issued under one or
more subscription rights agreements (each, a “
Subscription Rights Agreement
”) to be entered into
between the Company and the subscription agent to be named therein (the “
Purchase Contract Agent
”);
and (f) units (the “
Units
”) to be issued under one or more unit agreements to be entered into among the
Company, a bank or trust company, as unit agent (the “
Unit Agent
”), and the holders from time to time of
the Units (each such unit agreement, a “
Unit Agreement
”).
We, as your counsel, have examined originals or copies of such documents, corporate records,
certificates of public officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation,
assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to
the Registration Statement that have not been executed will conform to the forms thereof, (iv) all
signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents
had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of
the Company that we reviewed were and are accurate and (vii) all representations made by the Company
as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below,
we advise you that, in our opinion:
1. Assuming the terms of any sales of Offered Shares pursuant to the Sales Agreement are
approved by the Company’s board of directors or a properly constituted and authorized
committee thereof (or any of them delegates such approval to officers and such terms are
approved by such officers), the Offered Shares have been duly authorized and, when
issued and delivered to and paid for by the Sales Agent pursuant to the Sales
Agreement, will be validly issued, fully paid and non-assessable.
2
2. When the necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of shares of Class A Common Stock (other than the
Offered Shares) proposed to be sold by the Company, and when such shares of Class A
Common Stock are issued and delivered in accordance with the applicable underwriting
or other agreement against payment therefor (in excess of par value thereof) or upon
conversion or exercise of any security offered under the Registration Statement (the
“
Offered Security
”), in accordance with the terms of such Offered Security or the
instrument governing such Offered Security providing for such conversion or exercise as
approved by the Board of Directors of the Company, for the consideration approved by
such Board of Directors (which consideration is not less than the par value of the Class A
Common Stock), such shares of Class A Common Stock will be validly issued, fully-paid
and non-assessable.
3. Upon designation of the relative rights, preferences and limitations of any series of
Preferred Stock by the Board of Directors of the Company and the proper filing with the
Secretary of State of the State of Delaware of a Certificate of Designation relating to such
series of Preferred Stock, all necessary corporate action on the part of the Company will
have been taken to authorize the issuance and sale of such series of Preferred Stock
proposed to be sold by the Company, and when such shares of Preferred Stock are
issued and delivered in accordance with the applicable underwriting or other agreement
against payment therefor (in excess of par value thereof), such shares of Preferred Stock
will be validly issued, fully paid and non-assessable.
4. When the Indenture and any supplemental indenture to be entered into in connection with
the issuance of any Debt Securities have been duly authorized, executed and delivered
by the Trustees and the Company; the specific terms of a particular series of Debt
Securities have been duly authorized and established in accordance with the Indenture;
and such Debt Securities have been duly authorized, executed, authenticated, issued
and delivered in accordance with the Indenture and the applicable underwriting or other
agreement against payment therefor, such Debt Securities will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general applicability, provided
that we express no opinion as to (w) the enforceability of any waiver of rights under any
usury or stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar
provision of applicable law on the conclusions expressed above or (y) the validity, legally
binding effect or enforceability of any section of the Indenture that requires or relates to
adjustments to the conversion rate at a rate or in an amount that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a penalty
or forfeiture or (z) the validity, legally binding effect or enforceability of any provision that
permits holders to collect any portion of stated principal amount upon acceleration of the
Debt Securities to the extent determined to constitute unearned interest.
5. When the Warrant Agreement to be entered into in connection with the issuance of any
Warrants has been duly authorized, executed and delivered by the Warrant Agent and
the Company; the specific terms of the Warrants have been duly authorized and
established in accordance with the Warrant Agreement; and such Warrants have been
duly authorized, executed, issued and delivered in accordance with the Warrant
Agreement and the applicable underwriting or other agreement against payment therefor,
such Warrants will constitute valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability, and may be subject to possible judicial or regulatory
actions giving effect to governmental actions or foreign laws affecting creditors’ rights.
3
6. When the Subscription Rights Agreement to be entered into in connection with the
issuance of any Subscription Rights has been duly authorized, executed and delivered by
the Subscription Agent and the Company; the specific terms of the Subscription Rights
have been duly authorized and established in accordance with the Subscription Rights
Agreement; and such Subscription Rights have been duly authorized, executed, issued
and delivered in accordance with the Subscription Rights Agreement and the applicable
underwriting or other agreement against payment therefor, such Subscription Rights will
constitute valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles of
general applicability, and may be subject to possible judicial or regulatory actions giving
effect to governmental actions or foreign laws affecting creditors’ rights.
7. When the Unit Agreement to be entered into in connection with the issuance of any Units
has been duly authorized, executed and delivered by the Unit Agent and the Company;
the specific terms of the Units have been duly authorized and established in accordance
with the Unit Agreement; and such Units have been duly authorized, executed, issued
and delivered in accordance with the Unit Agreement and the applicable underwriting or
other agreement against payment therefor, such Units will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general applicability, and may be
subject to possible judicial or regulatory actions giving effect to governmental actions or
foreign laws affecting creditors’ rights.
In connection with the opinions expressed above, we have assumed that, at or prior to the time of the
delivery of any such security, (i) the Board of Directors of the Company shall have duly established the
terms of such security and duly authorized the issuance and sale of such security and such authorization
shall not have been modified or rescinded; (ii) the Company shall remain validly existing as a corporation
in good standing under the laws of the State of Delaware ; (iii) the Registration Statement shall have been
declared effective and such effectiveness shall not have been terminated or rescinded; (iv) the Indenture,
the Debt Securities, the Warrant Agreement, the Subscription Rights Agreement and the Unit Agreement
are each valid, binding and enforceable agreements of each party thereto (other than as expressly
covered above in respect of the Company); and (v) there shall not have occurred any change in law
affecting the validity or enforceability of such security. We have also assumed that (i) the terms of any
security whose terms are established subsequent to the date hereof and the issuance, execution, delivery
and performance by the Company of any such security (a) require no action by or in respect of, or filing
with, any governmental body, agency or official and (b) do not contravene, or constitute a default under,
any provision of applicable law or public policy or regulation or any judgment, injunction, order or decree
or any agreement or other instrument binding upon the Company and (ii) any Warrant Agreement,
Subscription Rights Agreement and Unit Agreement will be governed by the laws of the State of New
York.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of
the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to
above and further consent to the reference to our name under the caption “Legal Matters” in the
prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report
dated March 27, 2023, relating to the consolidated financial statements of Vaxxinity, Inc., which appears
in Vaxxinity, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022. We also consent
to the reference to us under the heading "Experts" in this Registration Statement.
/s/ Armanino LLP
Armanino LLP
San Ramon, California
August 9, 2023
Exhibit 107
Calculation of Filing Fee Tables
S-3
(Form Type)
Vaxxinity, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security
Type
Security
Class Title
Fee
Calculation
or Carry
Forward
Rule
Amount
Registered
Proposed
Maximum
Offering
Price Per
Unit
Maximum
Aggregate
Offering Price
Fee Rate
Amount of
Registration
Fee
Carry
Forward
Form
Type
Carry
Forward
File
Number
Carry
Forward
Initial
Effective
Date
Filing Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward
Newly Registered Securities
Fees to be
Paid
Equity
Class A
Common
Stock
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Equity
Preferred
Stock
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Debt
Debt
Securities
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Warrants
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Subscription
Rights
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Purchase
Contracts
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Other
Units
Rule
457(o)
(1)
(1)
(1)
(1)
(1)
Fees to be
Paid
Unallocated
(Universal)
Shelf
Unallocated
(Universal)
Shelf
Rule
457(o)
(1)
(1)
$300,000,000
0.00011020
$33,060
Fees
Previously
Paid
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Carry Forward Securities
Carry
Forward
Securities
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Total Offering Amounts
$300,000,000
$33,060
Total Fees Previously Paid
—
Total Fee Offsets
—
Net Fee Due
$33,060
(1) An unspecified number of securities of each identified class is being registered as may from time to time be issued at
unspecified prices, including securities that may be issued upon exercise, conversion or exchange. Separate consideration
may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. The
aggregate maximum offering price of all securities offered pursuant to this registration statement will not exceed $300,000,000.