As filed with the Securities and Exchange
Commission on December 18, 2020
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REZOLUTE, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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27-3440894
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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201 Redwood Shores Parkway, Suite 315
Redwood City, CA 94065
(650) 206-4507
(Address, Including
Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Nevan Elam
Chief Executive Officer
201 Redwood Shores Parkway, Suite 315
Redwood City, CA 94065
Telephone: (650) 206-4507
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Anthony W. Epps &
Michael L. Weiner
Dorsey & Whitney LLP
1400 Wewetta Street, Suite 400
Denver, CO 80202
(303) 629-3400
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, please check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, 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:
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Large accelerated filer ☐
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Smaller reporting company x
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Accelerated Filer ☐
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Emerging growth company ☐
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Non-accelerated filer x
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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. ☐
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Aggregate Price
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Aggregate
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Amount of
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Title of Each Class of
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Amount to be
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Per Unit or
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Offering
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Registration
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Securities To Be Registered (1)
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Registered (1) (2)
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Share (2)
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Price (2)
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Fee (6)
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Common Stock, par value $0.001 per share
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N/A
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Preferred Stock, par value $0.001 per share
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N/A
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Debt Securities (3)
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N/A
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Warrants (4)
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N/A
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Rights
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N/A
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Units (5)
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N/A
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Total
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$
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200,000,000
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$
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21,820.00
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(1)
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There are being registered hereunder such indeterminate
(a) number of shares of Common Stock, (b) number of shares of preferred stock, (c) principal amount of debt securities,
(d) number of warrants to purchase shares of Common Stock, preferred stock or debt securities, (e) number of rights
to purchase an indeterminate number of shares of Common Stock, shares of preferred stock, debt securities or warrants, and (f) number
of units, consisting of some or all of these securities, all as will have an aggregate initial offering price not to exceed $200,000,000.
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities
registered also include such indeterminate amounts and numbers of shares of Common Stock and shares of preferred stock and such
indeterminate principal amounts of debt securities as may be issued upon exercise of warrants, upon conversion of or exchange
for debt securities that provide for conversion or exchange, or pursuant to anti-dilution provisions of any such securities. No
separate consideration will be received for any shares of Common Stock, preferred stock, or principal amounts of debt securities
so issued upon conversion or exchange. Pursuant to Rule 416(a), this registration statement also covers any additional securities
that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
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(2)
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Pursuant to General Instruction II.D of Form S-3,
the amount of securities to be registered for each class of securities, the proposed maximum offering price per unit for each
class of securities and the proposed aggregate offering price of each class of securities are not specified.
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(3)
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If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $200,000,000, less the aggregate dollar amount of all securities previously issued hereunder.
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(4)
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Includes warrants to purchase shares of Common Stock,
warrants to purchase shares of preferred stock and warrants to purchase debt securities.
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(5)
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Consisting of some or all of the securities listed above,
in any combination, including shares of Common Stock, shares of preferred stock, debt securities, warrants and rights.
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(6)
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The registration fee has been calculated in accordance
with Rule 457(o) under the Securities Act.
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EXPLANATORY NOTE
This registration statement contains two
prospectuses:
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a base prospectus, which covers the offering, issuance and sale of up to $200,000,000 of the registrant’s Common Stock, preferred stock, debt securities, warrants, rights and units; and
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a prospectus that covers the offering, issuance and sale of up to $50,000,000 of the registrant’s Common Stock that may be issued under an equity distribution agreement (the “Sales Agreement”) with Oppenheimer & Co. Inc. (“Oppenheimer”).
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The base prospectus immediately follows
this explanatory note. The Sales Agreement prospectus supplement immediately follows the base prospectus. The Common
Stock that may be offered, issued and sold by the registrant under the Sales Agreement prospectus supplement is included in the
$200,000,000 of securities that may be offered, issued and sold by the registrant under the base prospectus. Upon termination of
the Sales Agreement with Oppenheimer, any portion of the $50,000,000 included in the Sales Agreement prospectus supplement
that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus,
and if no shares are sold under the Sales Agreement, the full $50,000,000 of securities may be sold in other offerings pursuant
to the base prospectus and a corresponding prospectus supplement.
The information in this
prospectus is not complete and may be changed. We may not sell these securities 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 state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
DECEMBER 18, 2020
PROSPECTUS
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
We may offer for sale from time to time, either separately or
together in one or more offerings, our debt securities, common stock with a par value of $0.001 per share (“Common Stock”),
preferred stock, warrants, rights, and units (collectively, the “securities”).
The specific terms of any securities to be offered will be contained
in one or more supplements to this prospectus. Any prospectus supplement may also add, update or change information contained in
this prospectus. You should read this prospectus, any applicable prospectus supplement and the documents incorporated by reference
herein and therein carefully before you invest in any securities. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement describing the method and terms of the offering.
We may offer and sell the securities from time to time in amounts,
at prices and on other terms to be determined at the time of offering. We may offer and sell the securities to or through one or
more underwriters, dealers or agents, or directly to purchasers, on a continuous or delayed basis. If any underwriters, dealers
or agents are involved in the sale of any of the securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among us and them will be set forth, or will be calculable from the information set forth, in any
applicable prospectus supplement. See the sections entitled “About this Prospectus” and “Plan of Distribution”
for more information.
Our Common Stock is listed on The Nasdaq Capital Market under
the symbol “RZLT”. On December 14, 2020, the last reported sale price for our Common Stock was $19.79 per share.
Each prospectus supplement to this prospectus will indicate if the securities offered thereby will be listed on any securities
exchange.
Investing in our securities involves risks. You should carefully
review the risks and uncertainties described under the heading “Risk Factors” beginning on page 6 of this prospectus,
any applicable prospectus supplement or any related free writing prospectus, and in any documents incorporated by reference herein
or therein before investing in our securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus is __, 202_
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement on Form S-3 that Rezolute, Inc., a Delaware corporation, which is also referred to as the “Company,”
“Rezolute,” “we,” “us,” “ourselves” and “our,” has filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration procedure. Under this procedure, we may
offer and sell at any time and from time to time, in one or more offerings, any combination of the securities described in this
prospectus.
To understand the terms of the securities
offered by this prospectus, any applicable prospectus supplement, any free writing prospectus that we authorize and any pricing
supplement, you should carefully read this prospectus, any applicable prospectus supplement, any free writing prospectus that we
authorize and any pricing supplement, and all documents incorporated by reference herein or therein. You should rely only on the
information contained or incorporated by reference in this prospectus, any applicable prospectus supplement, any free writing prospectus
that we authorize and any pricing supplement. We have not authorized any person, including any salesman or broker, to provide information
other than that provided in this prospectus, any applicable prospectus supplement, any free writing prospectus that we authorize
or any pricing supplement. We do not take responsibility for, and can provide no assurance as to the reliability of, any information
that others may give you. We are not making an offer of the securities in any jurisdiction where the offer is not permitted. You
should assume that the information in this prospectus, any applicable prospectus supplement, any free writing prospectus that we
authorize and any pricing supplement is accurate only as of the date on its cover page and that any information we have incorporated
by reference is accurate only as of the date of such document incorporated by reference was filed with the SEC. You should also
read the documents referred to under the heading “Where You Can Find More Information” for information regarding us
and our financial statements. Certain capitalized terms used in this prospectus are defined elsewhere in this prospectus.
This prospectus provides you with a general
description of the securities we may offer. Each time we offer securities, we will prepare and distribute a prospectus supplement
that will describe the specific amounts, prices and terms of that offering. That prospectus supplement may include a discussion
of any risk factors or other special considerations applicable to those securities. The prospectus supplement may also contain
information about any material U.S. federal income tax considerations relating to the securities covered by the prospectus supplement.
The prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus.
If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the
information in the prospectus supplement.
The registration statement containing this
prospectus, including the exhibits to the registration statement, provides additional information about us and the securities offered
under this prospectus.
The exhibits to the registration statement
contain the full text of certain contracts and other important documents we have summarized in this prospectus. You should review
the full text of these documents because these summaries may not contain all the information that you may find important in deciding
whether to purchase the securities we offer. The registration statement, including the exhibits, can be read at the SEC’s
website or at the SEC’s offices mentioned under the heading “Where You Can Find More Information.”
We may sell securities to underwriters who
will sell the securities to the public on terms fixed at the time of sale. In addition, the securities may be sold by us directly
or through dealers or agents designated from time to time, which agents may be affiliates of ours. If we, directly or through agents,
solicit offers to purchase the securities, we reserve the sole right to accept and, together with our agents, to reject, in whole
or in part, any offer.
A prospectus supplement will also contain,
with respect to the securities being offered thereby, the names of any underwriters, dealers or agents, together with the terms
of the offering, the compensation of any underwriters, dealers or agents and the net proceeds to us.
Any underwriters, dealers or agents participating
in any offering may be deemed “underwriters” within the meaning of the Securities Act of 1933, as amended, which we
refer to in this prospectus as the “Securities Act.”
This prospectus may not be used to sell
any securities unless accompanied by a prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may obtain such SEC filings from the SEC’s website at http://www.sec.gov/edgar/searchedgar/companysearch.html.
Copies of our periodic and current reports and proxy statements, may also be obtained, free of charge, on our website at www.rezolutebio.com.
This reference to our Internet address is for informational purposes only and the information contained on or accessible through
such Internet address is not and shall not be deemed to be incorporated by reference into this prospectus.
As permitted by SEC rules, this prospectus
does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules
we file with the SEC. You may refer to the registration statement, exhibits and schedules for more information about us and the
securities. The registration statement, exhibits and schedules are available through the SEC’s website or at its public reference
room.
INCORPORATION BY REFERENCE
In this prospectus, we “incorporate
by reference” certain information that we file with the SEC, which means that we can disclose important information to you
by referring you to that information. The information we incorporate by reference is an important part of this prospectus, and
later information that we file with the SEC will automatically update and supersede this information. The following documents or
information have been filed by us with the SEC and are incorporated by reference into this prospectus (other than, in each case,
documents or information that are or are deemed to have been furnished rather than filed in accordance with SEC rules, including
disclosure furnished under Items 2.02 or 7.01 of Form 8-K):
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Annual Report
on Form 10-K for the fiscal year ended June 30, 2020 filed with the SEC on
October 13, 2020;
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Quarterly Report
on Form 10-Q for the quarter ended September 30, 2020 filed with the SEC on
November 12, 2020;
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Description of
our Common Stock contained in our Registration Statement on Form 8-A, as filed with
the SEC on November 4, 2020 including any amendment or report filed for the purpose
of updating such description.
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All documents and reports that we file with
the SEC (other than, in each case, documents or information that are or are deemed to have been furnished rather than filed in
accordance with SEC rules) under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which
we refer to in this prospectus as the “Exchange Act,” from the date of this prospectus until the completion of the
offering under this prospectus shall be deemed to be incorporated by reference into this prospectus. Unless specifically stated
to the contrary, none of the information we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K that we may
from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus. The information
contained on or accessible through any websites, including our website, is not and shall not be deemed to be incorporated by reference
into this prospectus.
You may request a copy of these filings,
other than an exhibit to these filings unless we have specifically included or incorporated that exhibit by reference into the
filing, at no cost, by writing or telephoning us at the following address:
Rezolute, Inc.
201 Redwood Shores Parkway, Suite 315
Redwood City, CA 94065
(650) 206-4507
Any statement contained in a document incorporated
or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus, any prospectus supplement, or any other subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement
so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, and the documents incorporated
by reference herein, contain certain “forward-looking statements” within the meaning of Section 27A of the Securities
Act, Section 21E of the Exchange Act and the Private Securities Litigation Reform Act of 1995, and are based on management’s
current expectations. These forward-looking statements can be identified by the use of forward-looking terminology, including,
but not limited to, “believes,” “may,” “will,” “would,” “should,” “expect,”
“anticipate,” “seek,” “see,” “confidence,” “trends,” “intend,”
“estimate,” “on track,” “are positioned to,” “on course,” “opportunity,”
“continue,” “project,” “guidance,” “target,” “forecast,” “anticipated,”
“plan,” “potential” and the negative of these terms or comparable terms.
Various factors could adversely affect our
operations, business or financial results in the future and cause our actual results to differ materially from those contained
in the forward-looking statements, including those factors discussed under “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” or otherwise discussed in our Annual Report on
Form 10-K for the fiscal year ended June 30, 2020, our Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2020, and in our other filings made from time to time with the SEC after the date of this prospectus.
For additional information about factors
that could cause actual results to differ materially from those described in the forward-looking statements, please see the documents
that we have filed with the SEC, including our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and other documents and reports filed from time to time with the SEC.
All subsequent forward-looking statements
attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained
or referred to in this section. We are not under any obligation to, and expressly disclaim any obligation to, update or alter any
forward-looking statements whether as a result of such changes, new information, subsequent events or otherwise.
THE COMPANY
We are a clinical stage biopharmaceutical
company specializing in the development of innovative drug therapies to improve the lives of patients with metabolic and orphan
diseases
Recent Developments
On October 8,
2020, we filed with the Secretary of State of the State of Delaware, a Certificate of Amendment to our Certificate of Incorporation
(the “Certificate of Amendment”), which was approved by our stockholders at our special meeting of stockholders held
on October 23, 2019 and by our board of directors on October 7, 2020. The Certificate of Amendment effected a 1-for-50
reverse stock split of our Common Stock (the “Reverse Split”), in which every fifty (50) shares of Common Stock issued
and outstanding as of October 9, 2020 were combined and converted into one (1) share of Common Stock. In connection with
the Reverse Split, proportionate adjustments were made to increase the per share exercise prices and decrease the number of shares
of Common Stock issuable upon exercise of stock options and warrants whereby approximately the same aggregate price is required
to be paid for such securities upon exercise as had been payable immediately preceding the Reverse Split. While the Reverse Split
decreased the number of outstanding shares of Common Stock, it did not change the total number of shares of Common Stock or preferred
stock authorized for issuance by us, nor did it change the par value of the Common Stock or preferred stock. The first day of trading
after the Reverse Stock Split was on October 13, 2020. Unless otherwise indicated, the share numbers contained herein give
effect to the Reverse Split.
On October 9,
2020 we issued 2,484,853 shares of Common Stock and 820,001 Unit Warrants which resulted in net proceeds of approximately $37.5
million (referred to herein as the “Unit Financing”). On November 3, 2020, our shares of Common Stock were approved
for listing on the Nasdaq Capital Market under the symbol RZLT and the initial day of trading was on November 9, 2020.
Our Pipeline
Our lead clinical asset,
RZ358, is an antibody therapy in Phase 2b development as a potential treatment for congenital hyperinsulinism (“CHI”),
an ultra-rare pediatric genetic disorder. In February 2020, we announced the initiation of the RZ358-606 Phase 2b study (“RIZE”)
globally at multiple study centers. Prior to COVID-19, we had planned to complete the RIZE study by the middle of calendar year
2021. In March 2020, we paused the RIZE study as a result of the COVID-19 pandemic. As the COVID-19 pandemic abates in different
regions, we are resuming clinical activities including trial site initiations. We believe that patient enrollment will recommence
by the end of calendar year 2020. Further, if we can begin enrolling patients on this timeframe, we believe we will be able to
complete the RIZE study in the second half of calendar year 2021.
In addition, in the
first half of calendar year 2020, we had positive interactions with the U.S. Food and Drug Administration (“FDA”).
In June 2020, we announced that FDA granted us Rare Pediatric Disease (“RPD”) designation for RZ358, which qualifies
us to receive a priority review voucher upon marketing approval of the drug in CHI. Such a voucher could be redeemed to receive
a priority review of a subsequent marketing application for any drug candidate in any disease indication. Further, we submitted
the RIZE protocol to FDA which allows us to expand the study to clinical sites in the United States. We believe that patient enrollment
may commence in the United States in the first quarter of calendar year 2021.
Our
next program, RZ402, is an oral therapy, targeting diabetic macular edema (“DME”). On October 28, 2020, we submitted
an IND to the FDA that will require us to make the first milestone payment of $1.0 million within 15 days after acceptance of the
IND by the FDA. The FDA accepted our IND filing on December 1, 2020 and we anticipate initiation of a Phase 1 clinical trial
for RZ402 prior to the end of the first quarter of calendar year 2021.
RZ358
CHI is an ultra-rare
pediatric genetic disorder characterized by excessive production of insulin by the pancreas. CHI is caused by mutations in about
a dozen known genes associated with pancreatic beta cells and their secretion of insulin. If untreated, it can lead to dangerously
low blood sugar levels. Rezolute’s lead candidate, RZ358, is an antibody in Phase 2b development that is designed to prevent
severe, persistent low blood sugar in patients with CHI.
RZ358 is an intravenously
administered human monoclonal antibody that binds to a unique site on the insulin receptor found across effector cells throughout
the body in the liver, fat, and muscle. This action allows RZ358 to counteract the effects of elevated insulin in the body. Its
unique allosteric mechanism of action is reversible, depends on both insulin levels and blood sugar levels in a dose-dependent
manner, and enables patients to achieve normal levels of insulin and glucose. Therefore, we believe that RZ358 is ideally suited
as a potential therapy for conditions characterized by excessive insulin production and it is being developed to treat hyperinsulinemia
and prevent low blood sugar for diseases such as CHI. As RZ358 acts downstream from the beta cells, across effector cells in the
liver, fat, and muscle, it may be universally effective at treating CHI caused by any of the underlying genetic defects.
The RIZE study is a
multi-center, open-label, repeat-dose Phase 2b study of RZ358 in four sequential dosing cohorts of patients with CHI who are at
least two years old and have residual low blood sugar (<70 mg/dL) that is inadequately controlled on existing therapies. In
addition to safety and pharmacokinetic evaluations, continuous glucose monitoring (“CGM”) and self-monitored blood
glucose will be utilized to evaluate several glycemic efficacy endpoints. The primary endpoint is the time within a glucose target
range of 70-180 mg/dL by CGM during weeks 4 and 8 of treatment compared to baseline.
RZ402
DME is a severe complication
of diabetes marked by progressive vision loss and blindness. Consistently high blood sugar levels can cause diabetic retinopathy,
a complication characterized by damage to the blood vessels in the eye and fluid leakage into the light-sensitive tissue known
as the retina. The accumulation of fluid may lead to DME, or swelling of the macula, the part of the retina responsible for sharp,
straight-ahead vision. Currently available treatments for DME involve frequent burdensome injections into the eye or invasive laser
surgery.
Rezolute is developing
RZ402, a small molecule plasma kallikrein inhibitor (“PKI”) for use in DME. As a once-daily oral investigational therapy,
RZ402 is designed to improve compliance and treatment outcomes for patients with DME. Elevated plasma levels of the enzyme kallikrein
have been associated with increased inflammation, vessel leakage and excess blood vessel growth in the eyes of patients with DME.
Genetic and pharmacologic knockout of plasma kallikrein have been shown to protect against vascular endothelial growth factor (“VEGF”)
induced retinal blood vessel leakage in murine models without damaging long-term effects.
RZ402 is a bioavailable small molecule
inhibitor of plasma kallikrein that has shown the potential to prevent the onset of and reverse vascular leakage in a dose-dependent
manner in multiple rodent models of whole body and retinal vascular leakage. Target plasma concentrations were exceeded for 24
hours following oral dosing of RZ402 in monkeys and dogs, supporting the potential for once daily dosing in humans. Rezolute has
completed a pre-IND meeting with the FDA and the IND-enabling toxicology studies in preparation for filing an IND.
Competition
We face competition
from pharmaceutical and biotechnology companies, academic institutions, governmental agencies, and private research organizations
in recruiting and retaining highly qualified scientific personnel and consultants and in the development and acquisition of technologies.
There are a handful
of companies developing therapies for CHI that are potential competitors to RZ358. Zealand Pharma is one such company.
There are a handful
of companies developing oral therapies for diabetic macular edema that are potential competitors to the plasma kallikrein inhibitor
therapy, KalVista Pharmaceuticals being one such company.
Government Regulation
Regulation by governmental
authorities in the U.S. and other countries is a significant factor in the development, manufacture and marketing of pharmaceutical
products. All of our potential products will require regulatory approval by governmental agencies prior to commercialization. In
particular, pharmaceutical therapies are subject to rigorous preclinical testing and clinical trials and other pre-market approval
requirements by the FDA and regulatory authorities in foreign countries. Various federal, state and foreign statutes and regulations
also govern or influence the manufacturing, safety, labeling, storage, record keeping and marketing of such products.
We are also subject
to various federal, state, and local laws, regulations and recommendations relating to safe working conditions; laboratory and
manufacturing practices; the experimental use of animals; and the use and disposal of hazardous or potentially hazardous substances,
including radioactive compounds and infectious disease agents, used in connection with our research, development and manufacturing.
Employees
As of December 14,
2020, we had 21 full-time employees, all of whom have experience with pharmaceutical, biotechnology or medical product companies.
None of our employees or contractors are covered by collective bargaining agreements.
Corporate Information
We were incorporated
in Delaware in 2010. We maintain executive offices located at 201 Redwood Shores Parkway, Suite 315, Redwood City, CA 94065
and our phone number is (650) 206-4507. Our website is located at www.rezolutebio.com. The information contained in,
or that can be accessed through, our website is not part of, and is not incorporated into this document.
RISK FACTORS
Investing in shares
of our Common Stock involves significant risks. Please see the risk factor below and the additional risk factors set forth under
the heading “Risk Factors” in Item 1A. of our most recent Annual Report on Form 10-K for the fiscal year ended June 30, 2020, and in Part II, Item 1A. of our most recent Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2020, each of which are on file with the SEC and are incorporated by reference in this prospectus. These
risks may be revised or supplemented in future filings of our Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K,
which are also incorporated by reference in this prospectus. Before making an investment decision, you should carefully consider
these risks as well as other information we include or incorporate by reference in this prospectus.
Risks Related to Our Governing Documents
Our Certificate of Incorporation
provides that the Court of Chancery of the State of Delaware is the exclusive forum for certain litigation that may be initiated
by our stockholders, including claims under the Securities Act, which could limit our stockholders’ ability to obtain a favorable
judicial forum for disputes with us or our directors, officers or employees.
Our Certificate of
Incorporation provides that the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the
sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting
a claim for breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders, (iii) any
action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, our certificate of incorporation
or our bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine. The choice of forum provision
may limit a stockholder’s ability to bring a claim in a judicial forum that it finds 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. Stockholders who do bring a claim in the Court of Chancery could face additional litigation costs in pursuing any such
claim, particularly if they do not reside in or near the State of Delaware. The Court of Chancery 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 or results may be more favorable to us than to our stockholders. Alternatively,
if a court were to find the choice of forum provision contained in our certificate of incorporation to be inapplicable or unenforceable
in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely
affect our business and financial condition. Notwithstanding the foregoing, the exclusive provision shall not preclude or contract
the scope of exclusive federal or concurrent jurisdiction for actions brought under the Securities Exchange Act of 1934, as amended,
or the Securities Act of 1933, as amended, or the respective rules and regulations promulgated thereunder.
USE OF PROCEEDS
We intend to use the net proceeds from the
sales of the securities described in this prospectus as set forth in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms
and provisions of the debt securities that we may offer using this prospectus and the related indenture. This section is only a
summary and does not purport to be complete. You must look to a future prospectus supplement that will describe the relevant form
of debt security and the related indenture for a full understanding of all terms of any series of debt securities. The form of
debt security and the related indenture have been or will be filed or incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. See “Where You Can Find More Information” for information on how to obtain
copies.
We may issue debt securities from time to
time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms
we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe
the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms
of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless otherwise mentioned
or unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We will issue the debt securities under
the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust
Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of
the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or
will be incorporated by reference from reports that we file with the SEC.
The following summary of material provisions
of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of
the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and
any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete
indenture that contains the terms of the debt securities.
General
The indenture will not limit the amount
of debt securities that we may issue. It will provide that we may issue debt securities up to the principal amount that we may
authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger
and sale of all or substantially all of our assets that may be contained in the indenture, the terms of the indenture will not
contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations,
financial condition or transactions involving us.
We may issue the debt securities issued
under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original
issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms
of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described
in more detail in the applicable prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and
the terms of any subordination;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be determined;
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will
begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may,
at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities
and the currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security
for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing
of debt securities of that series;
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whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities;
the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other
individual securities; and the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable,
or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which
shall be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others,
the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee
or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of
holders of debt securities issued under the indenture;
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in
U.S. dollars;
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and
conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions
or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our Common Stock or our other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our Common Stock
or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as
an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations
under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable,
and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by
us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest
for this purpose;
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt
securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of
principal or premium, if any;
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than
a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written
notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee
or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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If an event of default with respect to debt
securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the
trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any,
and accrued interest, if any, of such series of debt securities due and payable immediately. If an event of default specified in
the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt
securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and
its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we
have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if
an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of
its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding
debt securities of any series will 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 debt securities of that
series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies
only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written
request;
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
by the trustee in compliance with the request; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
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These limitations do not apply to a suit
instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt
securities.
We will periodically file statements with
the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, we and the trustee may change an indenture without the consent
of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
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to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions
for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance,
of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right
or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material
respect;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided
above under “Description of Debt Securities—General” to establish the form of any certifications required to
be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of
any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture
Act.
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In addition, under the indenture, the rights
of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least
a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we
provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make
the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable
upon the redemption of any series of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
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Discharge
The indenture will provide that we can elect
to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, and interest
on, the debt securities of the series on the dates payments are due.
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture will provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The
Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with
respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description
of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to
the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series will be able to exchange the debt securities for other debt securities of the same
series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and
the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption
and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange of any debt securities so selected for redemption, in whole or in part, except the unredeemed
portion of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, will undertake to perform only those duties as are specifically set
forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as
a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under
no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it
is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities, and
any claim, controversy or dispute arising under or related to the indenture or the debt securities, will be governed by and construed
in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF CAPITAL STOCK
General
This prospectus describes the general terms
of our capital stock. For a more detailed description of our capital stock, you should read the applicable provisions of the Delaware
General Corporation Law, or DGCL, and our charter and bylaws.
Common Stock
Our certificate of incorporation provides
authority for us to issue up to 500,000,000 shares of Common Stock, par value $0.001 per share. As of December 14, 2020, there
were 8,352,277 shares of our Common Stock outstanding. Under Delaware law, stockholders generally are not personally liable for
our debts or obligations solely as a result of their status as stockholders. Our outstanding shares of Common Stock are, and any
shares offered by this prospectus will be, when issued and paid for, fully paid and nonassessable.
Holders of our Common
Stock are entitled to one vote per share on all matters submitted to our stockholders for a vote. There are no cumulative voting
rights in the election of directors. Our shares of Common Stock are entitled to receive such dividends as may be declared and paid
by our Board of Directors out of funds legally available therefor and to share ratably in the net assets, if any, of Rezolute upon
liquidation. Our stockholders have no preemptive rights to purchase any shares of our capital stock. Our Certificate of Incorporation
provides that the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative
action or proceeding brought on our behalf, (ii) any action asserting a claim for breach of a fiduciary duty owed by any of
our directors, officers, employees or agents to us or our stockholders, (iii) any action asserting a claim arising pursuant
to any provision of the Delaware General Corporation Law, our certificate of incorporation or our bylaws or (iv) any action
asserting a claim governed by the internal affairs doctrine. Notwithstanding this exclusive forum provision, the exclusive forum
provision shall not preclude or contract the scope of exclusive federal or concurrent jurisdiction for actions brought under the
Securities Exchange Act of 1934, as amended, or the Securities Act of 1933, as amended, or the respective rules and regulations
promulgated thereunder.
Preferred Stock
Our certificate of incorporation provides
authority for us to issue up to 20,000,000 shares of preferred stock, par value $0.001 per share. Our Board of Directors is authorized,
without further stockholder action, to establish various series of preferred stock from time to time and to determine the rights,
preferences and privileges of any unissued series including, among other matters, any dividend rights, dividend rates, conversion
rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms, the number of shares constituting any
such series, and the description thereof and to issue any such shares. As of December 14, 2020, there are no issued and outstanding
shares of preferred stock and our Board of Directors has not designated any series of preferred stock for future issuance.
The rights of the holders of our Common
Stock will be subject to, and may be adversely affected by, the rights of holders of any preferred stock that may be issued in
the future. Such rights may include voting and conversion rights which could adversely affect the holders of the Common Stock.
Satisfaction of any dividend or liquidation preferences of outstanding preferred stock would reduce the amount of funds available,
if any, for the payment of dividends or liquidation amounts on Common Stock.
A prospectus supplement, relating to any
offered class or series of preferred stock, will specify the following terms of such class or series, as applicable:
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the designation of such class or series of our $0.001 par value preferred stock;
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the number of shares of such class or series of preferred stock offered, the liquidation preference per share and the offering
price of such class or series of preferred stock;
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the dividend rate(s), period(s), and/or payment date(s) or method(s) of calculation thereof applicable to such class
or series of preferred stock;
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whether dividends on such class or series of preferred stock are cumulative or not and, if cumulative, the date from which
dividends on such class or series of preferred stock shall accumulate;
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the provision for a sinking fund, if any, for such class or series of preferred stock;
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the provision for redemption, if applicable, of such class or series of preferred stock;
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any listing of such class or series of preferred stock on any securities exchange;
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the preemptive rights, if any, of such class or series of preferred stock;
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the terms and conditions, if applicable, upon which shares such class or series of preferred stock will be convertible into
shares of our Common Stock or shares of any other class or series of our stock or other securities, including the conversion price
(or manner of calculation thereof);
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a discussion of any additional material federal income tax consequences applicable to an investment in such class or series
of preferred stock;
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the relative ranking and preferences of such class or series of preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of our Company;
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any limitations on issuance of any class or series of stock ranking senior to or on parity with such class or series of preferred
stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of our Company;
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any voting rights of such class or series of preferred stock; and
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any other specific terms, preferences, rights, limitations or restrictions of such class or series of preferred stock.
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Transfer Agent and Registrar
The transfer agent of our Common Stock is
Issuer Direct Corporation. Their address is One Glenwood Avenue, Suite 1001, Raleigh, NC 27306.
DESCRIPTION OF OTHER SECURITIES
Warrants
We may issue warrants to purchase certain
of the securities described in this prospectus. Unless otherwise provided in the applicable prospectus supplement, each series
of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. Additional information
regarding any warrants we may offer, and the related warrant agreement will be set forth in the applicable prospectus supplement.
As of December 14, 2020, we had certain
warrants issued in our October 9, 2020 Unit Financing (the “Unit Warrants”) to purchase 820,001 shares of Common
Stock with an exercise price of $19.50 per share that were outstanding. In addition, as of December 14, 2020, other warrants
to purchase an aggregate of 618,307 shares at a weighted-average exercise price of $57.46 per share were outstanding. All of our
outstanding warrants are currently exercisable, except to the extent that certain of the Unit Warrants are subject to a blocker
provision, which restricts the exercise of a warrant if, as a result of such exercise, the warrant holder, together with its affiliates
and any other person whose beneficial ownership of Common Stock would be aggregated with the warrant
holder’s for purposes of Section 13(d) of the Exchange Act, would beneficially own in excess of 4.99%, 9.99%, or
14.99% of our then issued and outstanding shares of Common Stock (including the shares of Common Stock issuable upon such exercise),
as such percentage ownership is determined in accordance with the terms of such warrant. All of our outstanding warrants contain
provisions for the adjustment of the exercise price in the event of stock dividends, stock splits or similar transactions. In addition,
the Unit Warrants contain a “cashless exercise” feature that allows the holders thereof to exercise the warrants without
a cash payment to us under certain circumstances.
Rights
We may issue rights
to purchase our Common Stock, preferred stock, or other securities. Rights may be issued independently or together with any other
offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection
with any rights offering to our stockholders, we may enter into a standby underwriting arrangement with one or more underwriters
pursuant to which the underwriters will purchase any of the offered securities remaining unsubscribed after the expiration of the
rights offering. In connection with a rights offering to our shareholders, we will distribute certificates evidencing the rights
and an applicable prospectus supplement to our shareholders on the record date that we set for receiving rights in the rights offering.
The particular terms
and provisions of the rights offered by any prospectus supplement, and the extent to which the general terms and provisions described
below may apply thereto, will be described in the prospectus supplement filed in respect of such rights. This description will
include, where applicable:
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the title of the rights;
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the securities for which the rights are exercisable;
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the exercise price for the rights;
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the date of determining the security holders entitled to the rights distribution;
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the number of the rights issued to each security holder;
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the extent to which the rights are transferable;
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if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the rights;
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the date on which the right to exercise the rights shall commence, and the date on which the rights shall expire (subject to
any extension);
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the conditions to completion of the rights offering;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the rights;
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the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection
with the rights offering; and
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the right.
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Units
We may issue units comprised of one or more
of the securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of
each included security. The unit agreement, if any, under which a unit is issued may provide that the securities comprising the
unit may not be held or transferred separately, at any time or at any time before a specified date.
The particular terms and provisions of units
offered by any prospectus supplement, and the extent to which the general terms and provisions described below may apply thereto,
will be described in the prospectus supplement filed in respect of such units. This description will include, where applicable:
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the designation and aggregate number of units offered;
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the price at which the units will be offered;
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the currency or currencies in which the units are denominated;
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the terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately;
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the number of securities that may be purchased upon exercise of each unit and the price at which the currency or currencies
in which that amount of securities may be purchased upon exercise of each unit;
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any provisions for the issuance, payment, settlement, transfer, adjustment or exchange of the units or of the securities comprising
the units; and
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any other material terms of the units.
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We reserve the right to set forth in a prospectus
supplement specific terms of the units that are not within the options and parameters set forth in this prospectus. In addition,
to the extent that any particular terms of the units described in a prospectus supplement differ from any of the terms described
in this prospectus, the description of such terms set forth in this prospectus shall be deemed to have been superseded by the description
of the differing terms set forth in such prospectus supplement with respect to such units.
PLAN OF DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions, block trades
or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, directly to
one or more purchasers, or through any combination of these methods. The distribution of the securities may be effected from time
to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of
sale, at prices related to the prevailing market prices or at negotiated prices.
We may issue securities
to other companies or their security holders to acquire those companies or equity interests in those companies, or to acquire assets
of those companies, through mergers or consolidations with us or any of our subsidiaries, or through the exchange of our securities
for securities of the other companies, or through the exchange of assets of other companies for our securities, or through similar
transactions. We may also issue securities to third parties to acquire patents or other intellectual property or licenses or similar
rights to use patents or other intellectual property.
A prospectus supplement
or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of
the offering of the securities, including, to the extent applicable:
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any securities exchange or market on which the securities may be listed.
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Only underwriters named
in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
By Underwriters
If underwriters are
used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one
or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We
may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered
by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed may change from time
to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming
the underwriter, the nature of any such relationship.
By Dealers
If a dealer is utilized
in the sale of any securities offered by this prospectus, we will sell those securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. We will set
forth the names of the dealers and the terms of the transaction in the applicable prospectus supplement.
By Agents
We may sell securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities
and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states
otherwise, our agent will act on a best-efforts basis for the period of its appointment.
By Direct Sales
We may also directly
sell securities offered by this prospectus. In this case, no underwriters or agents would be involved. We will describe the terms
of those sales in the applicable prospectus supplement.
Electronic Auctions
We also may make sales
through the Internet or through other electronic means. Since we may from time to time elect to offer securities directly to the
public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of electronic
bidding or ordering systems for the pricing and allocation of the securities, you will want to pay particular attention to the
description of that system we will provide in an applicable prospectus supplement.
The electronic system
may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional offers to buy
that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which the securities
are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant
information to assist in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted,
and whether a bidder’s individual bids would be accepted, prorated or rejected. Of course, many pricing methods can and may
also be used.
Upon completion of
the electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering
price at which securities would be sold and the allocation of securities among bidders would be based in whole or in part on the
results of the Internet or other electronic bidding process or auction.
General Information
Underwriters, dealers
and agents that participate in the distribution of the securities offered by this prospectus may be deemed underwriters under the
Securities Act, and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated
as underwriting discounts and commissions under the Securities Act.
We may authorize agents,
dealers or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
We may provide agents
and underwriters with indemnification against civil liabilities related to this offering, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents
and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Some or all of the
securities we offer, other than shares of Common Stock, will be new issues of securities with no established trading market. Any
underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at
any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
We may engage in at-the-market
offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. We may enter into
derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the
third parties may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related
open borrowings of shares, and may use securities received from us in settlement of those derivatives to close out any related
open borrowings of shares. The third parties in such sale transactions will be identified in the applicable prospectus supplement.
One or more firms,
referred to as “remarketing firms,” may also offer or sell the securities, if the prospectus supplement so indicates,
in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts
or as agents for us. These remarketing firms will offer or sell the securities in accordance with the terms of the securities.
The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe
the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities
they remarket.
Any underwriter may
engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. This short
sales position may involve either “covered” short sales or “naked” short sales. Covered short sales are
short sales made in an amount not greater than the underwriters’ over-allotment option to purchase additional securities
in this offering described above. The underwriters may close out any covered short position either by exercising their over-allotment
option or by purchasing securities in the open market. To determine how they will close the covered short position, the underwriters
will consider, among other things, the price of securities available for purchase in the open market, as compared to the price
at which they may purchase securities through the over-allotment option. Naked short sales are short sales in excess of the over-allotment
option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position
is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure
on the price of the securities that could adversely affect investors who purchase securities in this offering. Stabilizing transactions
permit bids to purchase the underlying security for the purpose of fixing the price of the security so long as the stabilizing
bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a covering transaction to cover short positions.
Any underwriters who
are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in our Common Stock,
preferred stock, warrants, units and debt securities, as applicable, on The Nasdaq Capital Market in accordance with Rule 103
of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the
securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such
security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded.
Similar to other purchase
transactions, an underwriter’s purchase to cover the syndicate short sales or to stabilize the market price of our securities
may have the effect of raising or maintaining the market price of our securities or preventing or mitigating a decline in the market
price of our securities. As a result, the price of our securities may be higher than the price that might otherwise exist in the
open market. The imposition of a penalty bid might also have an effect on the price of the securities if it discourages resales
of the securities.
Neither we nor the
underwriters make any representation or prediction as to the effect that the transactions described above may have on the price
of the securities. If such transactions are commenced, they may be discontinued without notice at any time.
The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive
compensation. We will describe the terms of such arrangements in the applicable prospectus supplement.
LEGAL MATTERS
Certain legal matters in connection with
the offered securities will be passed upon for us by Dorsey & Whitney LLP, Denver, Colorado. Any underwriters or agents
will be represented by their own legal counsel, who will be identified in the applicable prospectus supplement.
EXPERTS
Plante & Moran, PLLC has audited
our consolidated financial statements included in our Annual Report on Form 10-K for the years ended June 30, 2020 and
2019, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements
are incorporated by reference in reliance on Plante & Moran, PLLC’s report, given their authority as experts in
accounting and auditing
The information contained
in this prospectus supplement is not complete and may be changed. We may not sell these securities 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 state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
DECEMBER 18, 2020
Registration No. 333-
PROSPECTUS SUPPLEMENT
(To Prospectus dated , 202_)
Up to $50,000,000
Common Stock
We have entered into
an Equity Distribution Agreement (the “Sales Agreement”) with Oppenheimer & Co. Inc. (the “Sales Agent”
or “Oppenheimer”) relating to shares of our common stock, $0.001 par value per share (“Common Stock”),
offered by this prospectus supplement. In accordance with the terms of the Sales Agreement, we may offer and sell shares of our
Common Stock resulting in aggregate gross offering proceeds of up to $50,000,000 from time to time through the Sales Agent acting
as agent.
Our Common Stock trades
on the Nasdaq Capital Market under the symbol “RZLT”. On December 14, 2020, the last reported sale price for our
Common Stock on the Nasdaq Capital Market was $19.79 per share.
Sales of our Common
Stock, if any, under this prospectus supplement may be made by any method that is deemed an “at the market offering”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or 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, on mutually agreed terms between the Sales Agent and us. There is no arrangement for
funds to be received in any escrow, trust or similar arrangement.
The Sales Agent will
be entitled to compensation at a commission rate of 3.0% of the gross sales price of the shares sold under the Sales Agreement.
See “Plan of Distribution” beginning on page S-12 for additional information regarding the compensation to be
paid to the Sales Agent. In connection with the sale of 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.
INVESTING IN OUR
COMMON SHARES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING
“RISK FACTORS” BEGINNING ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT, AS WELL AS THE OTHER INFORMATION CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT BEFORE MAKING A DECISION TO INVEST IN OUR SECURITIES.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this
prospectus supplement and the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal
offense.
Oppenheimer & Co.
The date of this prospectus supplement
is , 202_
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement
relates to the offering of our Common Stock. Before buying any of the Common Stock that we are offering, we urge you to carefully
read this prospectus supplement, together with the information incorporated by reference as described under the headings “Where
You Can Find Additional Information” in the accompanying prospectus, and any free writing prospectus that we have authorized
for use in connection with this offering. These documents contain important information that you should consider when making your
investment decision.
This prospectus supplement
describes the terms of this offering of Common Stock and also adds to and updates information contained in the documents incorporated
by reference into this prospectus supplement. To the extent there is a conflict between the information contained in this prospectus
supplement, on the one hand, and the information contained in any document incorporated by reference into this prospectus supplement
that was filed with the Securities and Exchange Commission, or SEC, before the date of this prospectus supplement, on the other
hand, or the information contained in any free writing prospectus prepared by us or on our behalf that we have authorized for use
in connection with this offering, you should rely on the information in this prospectus supplement. 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 into this prospectus supplement- the statement in the document having the later date modifies or supersedes the earlier
statement.
We further note that
the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated
by reference into this prospectus supplement were made solely for the benefit of the parties to such agreement, including, in some
cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made.
Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state
of our affairs.
You should rely only
on the information contained in or incorporated by reference into this prospectus supplement and any free writing prospectus prepared
by or on our behalf that we have authorized for use in connection with this offering. We have not, and the Sales Agent has not,
authorized any dealer, salesperson or other person to provide any information or to make any representation other than those contained
or incorporated by reference into this prospectus supplement or into any free writing prospectus prepared by or on our behalf or
to which we have referred you. If anyone provides you with additional, different or inconsistent information, you should not rely
on it. We and the Sales Agent take no responsibility for, and can provide no assurance as to the reliability of, any other information
that others may give you. You should assume that the information appearing or incorporated by reference into this prospectus supplement
and in any free writing prospectus prepared by or on our behalf that we have authorized for use in connection with this offering
is accurate only as of the date of each such respective document. Our business, financial condition, results of operations and
prospects may have changed since those dates. You should read this prospectus supplement, including the documents incorporated
by reference, and any free writing prospectus prepared by or on our behalf that we have authorized for use in connection with this
offering, in their entirety before making an investment decision. You should also read and consider the information in the documents
we have referred you to in the sections of this prospectus supplement entitled “Where You Can Find More Information.”
Other than in the United
States, no action has been taken by us or the Sales Agent that would permit a public offering of the Common Stock offered by this
prospectus supplement in any jurisdiction where action for that purpose is required. The Common Stock offered by this prospectus
supplement may not be offered or sold, directly or indirectly, nor may this prospectus supplement or any other offering material
or advertisements in connection with the offer and sale of the Common Stock be distributed or published in any jurisdiction, except
under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons
into whose possession this prospectus supplement comes are advised to inform themselves about and to observe any restrictions relating
to this offering and the distribution of this prospectus supplement. This prospectus supplement does not constitute an offer to
sell or a solicitation of an offer to buy the Common Stock offered by this prospectus supplement in any jurisdiction in which such
an offer or a solicitation is unlawful.
Unless stated otherwise
or the context otherwise requires, references in this prospectus supplement to “Rezolute,” the “Company,”
“we,” “us,” or “our” refer to Rezolute, Inc. and our wholly-owned subsidiaries through
which we conduct our business.
FORWARD-LOOKING STATEMENTS
This prospectus supplement, and the documents
incorporated by reference herein, contain certain “forward-looking statements” within the meaning of Section 27A
of the Securities Act, Section 21E of the Exchange Act and the Private Securities Litigation Reform Act of 1995, and are based
on management’s current expectations. These forward-looking statements can be identified by the use of forward-looking terminology,
including, but not limited to, “believes,” “may,” “will,” “would,” “should,”
“expect,” “anticipate,” “seek,” “see,” “confidence,” “trends,”
“intend,” “estimate,” “on track,” “are positioned to,” “on course,”
“opportunity,” “continue,” “project,” “guidance,” “target,” “forecast,”
“anticipated,” “plan,” “potential” and the negative of these terms or comparable terms.
Various factors could
adversely affect our operations, business or financial results in the future and cause our actual results to differ materially
from those contained in the forward-looking statements, including those factors discussed under “Risk Factors” and
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” or otherwise discussed
in our Annual Report on Form 10-K for the fiscal year ended June 30, 2020, our Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 2020, and in our other filings made from time to time with the SEC after the date
of this prospectus supplement.
For additional information
about factors that could cause actual results to differ materially from those described in the forward-looking statements, please
see the documents that we have filed with the SEC, including our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K and other documents and reports filed from time to time with the SEC.
All subsequent forward-looking
statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements
contained or referred to in this section. We are not under any obligation to, and expressly disclaim any obligation to, update
or alter any forward-looking statements whether as a result of such changes, new information, subsequent events or otherwise.
SUMMARY
This summary highlights
certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this
prospectus supplement. This summary is not complete and does not contain all of the information that you should consider before
deciding to invest in our Common Stock. For a more complete understanding of our company and this offering, you should read carefully
this entire prospectus supplement, including the information incorporated by reference into this prospectus supplement, and any
free writing prospectus prepared by or on our behalf that we have authorized for use in connection with this offering, including
the “Risk Factors” section beginning on page S-7 of this prospectus supplement and the other information included
in, or incorporated by reference into, this prospectus supplement.
We are a clinical stage
biopharmaceutical company specializing in the development of innovative drug therapies to improve the lives of patients with metabolic
and orphan diseases.
Recent Developments
On October 8,
2020, we filed with the Secretary of State of the State of Delaware, a Certificate of Amendment to our Certificate of Incorporation
(the “Certificate of Amendment”), which was approved by our stockholders at our special meeting of stockholders held
on October 23, 2019 and by our board of directors on October 7, 2020. The Certificate of Amendment effected a 1-for-50
reverse stock split of our Common Stock (the “Reverse Split”), in which every fifty (50) shares of Common Stock issued
and outstanding as of October 9, 2020 were combined and converted into one (1) share of Common Stock. In connection with
the Reverse Split, proportionate adjustments were made to increase the per share exercise prices and decrease the number of shares
of Common Stock issuable upon exercise of stock options and warrants whereby approximately the same aggregate price is required
to be paid for such securities upon exercise as had been payable immediately preceding the Reverse Split. While the Reverse Split
decreased the number of outstanding shares of Common Stock, it did not change the total number of shares of Common Stock or preferred
stock authorized for issuance by us, nor did it change the par value of our Common Stock or preferred stock. The first day of trading
after the Reverse Stock Split was on October 13, 2020. Unless otherwise indicated, the share numbers contained herein give
effect to the Reverse Split.
On October 9,
2020 we issued 2,484,853 shares of Common Stock and 820,001 Unit Warrants which resulted in net proceeds of approximately $37.5
million (referred to herein as the “Unit Financing”). On November 3, 2020, our shares of Common Stock were approved
for listing on the Nasdaq Capital Market under the symbol RZLT and the initial day of trading was on November 9, 2020.
Our Pipeline
Our lead clinical asset,
RZ358, is an antibody therapy in Phase 2b development as a potential treatment for congenital hyperinsulinism (“CHI”),
an ultra-rare pediatric genetic disorder. In February 2020, we announced the initiation of the RZ358-606 Phase 2b study (“RIZE”)
globally at multiple study centers. Prior to COVID-19, we had planned to complete the RIZE study by the middle of calendar year
2021. In March 2020, we paused the RIZE study as a result of the COVID-19 pandemic. As the COVID-19 pandemic abates in different
regions, we are resuming clinical activities including trial site initiations. We believe that patient enrollment will recommence
by the end of calendar year 2020. Further, if we can begin enrolling patients on this timeframe, we believe we will be able to
complete the RIZE study in the second half of calendar year 2021.
In addition, in the
first half of calendar year 2020, we had positive interactions with the U.S. Food and Drug Administration (“FDA”).
In June 2020, we announced that FDA granted us Rare Pediatric Disease (“RPD”) designation for RZ358, which qualifies
us to receive a priority review voucher upon marketing approval of the drug in CHI. Such a voucher could be redeemed to receive
a priority review of a subsequent marketing application for any drug candidate in any disease indication. Further, we submitted
the RIZE protocol to FDA which allows us to expand the study to clinical sites in the United States. We believe that patient enrollment
may commence in the United States in the first quarter of calendar year 2021.
Our
next program, RZ402, is an oral therapy, targeting diabetic macular edema (“DME”). On October 28, 2020, we submitted
an IND to the FDA that will require us to make the first milestone payment of $1.0 million within 15 days after acceptance of the
IND by the FDA. The FDA accepted our IND filing on December 1, 2020 and we anticipate initiation of a Phase 1 clinical trial
for RZ402 prior to the end of the first quarter of calendar year 2021.
RZ358
CHI is an ultra-rare
pediatric genetic disorder characterized by excessive production of insulin by the pancreas. CHI is caused by mutations in about
a dozen known genes associated with pancreatic beta cells and their secretion of insulin. If untreated, it can lead to dangerously
low blood sugar levels. Rezolute’s lead candidate, RZ358, is an antibody in Phase 2b development that is designed to prevent
severe, persistent low blood sugar in patients with CHI.
RZ358 is an intravenously
administered human monoclonal antibody that binds to a unique site on the insulin receptor found across effector cells throughout
the body in the liver, fat, and muscle. This action allows RZ358 to counteract the effects of elevated insulin in the body. Its
unique allosteric mechanism of action is reversible, depends on both insulin levels and blood sugar levels in a dose-dependent
manner, and enables patients to achieve normal levels of insulin and glucose. Therefore, we believe that RZ358 is ideally suited
as a potential therapy for conditions characterized by excessive insulin production and it is being developed to treat hyperinsulinemia
and prevent low blood sugar for diseases such as CHI. As RZ358 acts downstream from the beta cells, across effector cells in the
liver, fat, and muscle, it may be universally effective at treating CHI caused by any of the underlying genetic defects.
The RIZE study is a
multi-center, open-label, repeat-dose Phase 2b study of RZ358 in four sequential dosing cohorts of patients with CHI who are at
least two years old and have residual low blood sugar (<70 mg/dL) that is inadequately controlled on existing therapies. In
addition to safety and pharmacokinetic evaluations, continuous glucose monitoring (“CGM”) and self-monitored blood
glucose will be utilized to evaluate several glycemic efficacy endpoints. The primary endpoint is the time within a glucose target
range of 70-180 mg/dL by CGM during weeks 4 and 8 of treatment compared to baseline.
RZ402
DME is a severe complication
of diabetes marked by progressive vision loss and blindness. Consistently high blood sugar levels can cause diabetic retinopathy,
a complication characterized by damage to the blood vessels in the eye and fluid leakage into the light-sensitive tissue known
as the retina. The accumulation of fluid may lead to DME, or swelling of the macula, the part of the retina responsible for sharp,
straight-ahead vision. Currently available treatments for DME involve frequent burdensome injections into the eye or invasive laser
surgery.
Rezolute is developing
RZ402, a small molecule plasma kallikrein inhibitor (“PKI”) for use in DME. As a once-daily oral investigational therapy,
RZ402 is designed to improve compliance and treatment outcomes for patients with DME. Elevated plasma levels of the enzyme kallikrein
have been associated with increased inflammation, vessel leakage and excess blood vessel growth in the eyes of patients with DME.
Genetic and pharmacologic knockout of plasma kallikrein have been shown to protect against vascular endothelial growth factor (“VEGF”)
induced retinal blood vessel leakage in murine models without damaging long-term effects.
RZ402 is a bioavailable
small molecule inhibitor of plasma kallikrein that has shown the potential to prevent the onset of and reverse vascular leakage
in a dose-dependent manner in multiple rodent models of whole body and retinal vascular leakage. Target plasma concentrations were
exceeded for 24 hours following oral dosing of RZ402 in monkeys and dogs, supporting the potential for once daily dosing in humans.
Rezolute has completed a pre-IND meeting with the FDA and the IND-enabling toxicology studies in preparation for filing an IND.
Competition
We face competition
from pharmaceutical and biotechnology companies, academic institutions, governmental agencies, and private research organizations
in recruiting and retaining highly qualified scientific personnel and consultants and in the development and acquisition of technologies.
There are a handful
of companies developing therapies for CHI that are potential competitors to RZ358. Zealand Pharma is one such company.
There are a handful
of companies developing oral therapies for diabetic macular edema that are potential competitors to the plasma kallikrein inhibitor
therapy, KalVista Pharmaceuticals being one such company.
Government Regulation
Regulation by governmental
authorities in the U.S. and other countries is a significant factor in the development, manufacture and marketing of pharmaceutical
products. All of our potential products will require regulatory approval by governmental agencies prior to commercialization. In
particular, pharmaceutical therapies are subject to rigorous preclinical testing and clinical trials and other pre-market approval
requirements by the FDA and regulatory authorities in foreign countries. Various federal, state and foreign statutes and regulations
also govern or influence the manufacturing, safety, labeling, storage, record keeping and marketing of such products.
We are also subject
to various federal, state, and local laws, regulations and recommendations relating to safe working conditions; laboratory and
manufacturing practices; the experimental use of animals; and the use and disposal of hazardous or potentially hazardous substances,
including radioactive compounds and infectious disease agents, used in connection with our research, development and manufacturing.
Employees
As of December 14,
2020, we had 21 full-time employees, all of whom have experience with pharmaceutical, biotechnology or medical product companies.
None of our employees or contractors are covered by collective bargaining agreements.
Corporate Information
We were incorporated
in Delaware in 2010. We maintain executive offices located at 201 Redwood Shores Parkway, Suite 315, Redwood City, CA 94065
and our phone number is (650) 206-4507. Our website is located at www.rezolutebio.com. The information contained in,
or that can be accessed through, our website is not part of, and is not incorporated into this document.
THE OFFERING
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Issuer:
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Rezolute, Inc.
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Common Stock offered by us:
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Common stock having aggregate gross offering proceeds of up to $50.0 million.
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Common Stock to be outstanding following the offering
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Up to 10,878,806 shares (as more fully described in the notes following this table), assuming sales of 2,526,529 shares of our Common Stock in this offering at an offering price of $19.79 per share, which was the last reported sale price of our Common Stock on the Nasdaq Capital Market on December 14, 2020. The actual number of shares issued will vary depending on the sales price under this offering.
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Plan of Distribution:
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“At the market offering” that may be made from time to time on the Nasdaq Capital Market or other existing trading markets for our Common Stock through Oppenheimer. See “Plan of Distribution” on page S-12 of this prospectus supplement.
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Use of Proceeds:
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We currently intend to use the net proceeds from this offering for working capital and general corporate purposes, which may include capital expenditures, research and development expenditures, preclinical study and clinical trial expenditures, acquisitions or new technologies and investments and business combinations. We reserve the right, at the sole discretion of our management, to reallocate the proceeds of this offering in response to developments in our business and other factors. See “Use of Proceeds” on page S-9 of this prospectus supplement.
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Risk Factors:
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Investing in our Common Stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” beginning on page S-7 of this prospectus supplement and the other information included in, or incorporated by reference into, this prospectus supplement for a discussion of certain factors you should carefully consider before deciding to invest in our Common Stock.
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Nasdaq Capital Market symbol:
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“RZLT”.
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Unless otherwise indicated, the number
of shares of Common Stock to be outstanding after this offering is based on 8,352,277 shares of Common Stock outstanding as of
December 14, 2020, including 2,484,853 shares issued in the Unit Financing on October 9, 2020. The number of shares of
Common Stock outstanding after this offering excludes:
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1,438,308 shares of our Common Stock issuable upon the exercise of warrants (including warrants
for 820,001 shares (“Unit Warrants”) issued in the Unit Financing) outstanding as of December 14, 2020, at a weighted
average exercise price of $35.82 per share. All of our outstanding warrants are currently exercisable, except to the extent that
certain of the Unit Warrants are subject to a blocker provision, which restricts the exercise of a warrant if, as a result of such
exercise, the warrant holder, together with its affiliates and any other person whose beneficial ownership of Common Stock would
be aggregated with the warrant holder’s for purposes of Section 13(d) of the Exchange Act, would beneficially own
in excess of 4.99%, 9.99%, or 14.99% of our then issued and outstanding shares of Common Stock (including the shares of Common
Stock issuable upon such exercise), as such percentage ownership is determined in accordance with the terms of such warrant;
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952,458 shares of our Common Stock issuable upon the exercise of stock options outstanding as of
December 14, 2020, at a weighted average exercise price of $33.35 per share, of which stock options to purchase 505,061 shares
of Common Stock were then exercisable; and
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38,950 shares of our Common Stock reserved for future grants of stock options (or other similar
equity instruments) under our equity incentive plans as of December 14,
2020.
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RISK FACTORS
Investing in shares of our Common Stock
involves significant risks. Please see the risk factors below and the additional risk factors set forth under the heading “Risk
Factors” in Item 1A. of our most recent Annual Report on Form 10-K for the fiscal year ended June 30, 2020, and
in Part II, Item 1A. of our most recent Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2020, each of which are on file with the SEC and are incorporated by reference in this prospectus supplement. These risks may be
revised or supplemented in future filings of our Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K, which
are also incorporated by reference in this prospectus supplement. Before making an investment decision, you should carefully consider
these risks as well as other information we include or incorporate by reference in this prospectus supplement.
Risks Related to Our Governing Documents
Our Certificate
of Incorporation provides that the Court of Chancery of the State of Delaware is the exclusive forum for certain litigation that
may be initiated by our stockholders, including claims under the Securities Act, which could limit our stockholders’ ability
to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our Certificate of
Incorporation provides that the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the
sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting
a claim for breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders, (iii) any
action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, our certificate of incorporation
or our bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine. The choice of forum provision
may limit a stockholder’s ability to bring a claim in a judicial forum that it finds 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. Stockholders who do bring a claim in the Court of Chancery could face additional litigation costs in pursuing any such
claim, particularly if they do not reside in or near the State of Delaware. The Court of Chancery 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 or results may be more favorable to us than to our stockholders. Alternatively,
if a court were to find the choice of forum provision contained in our certificate of incorporation to be inapplicable or unenforceable
in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely
affect our business and financial condition. Notwithstanding the foregoing, the exclusive provision shall not preclude or contract
the scope of exclusive federal or concurrent jurisdiction for actions brought under the Securities Exchange Act of 1934, as amended,
or the Securities Act of 1933, as amended, or the respective rules and regulations promulgated thereunder.
Risks Related to This Offering
A substantial
number of shares of Common Stock may be sold in the market following this offering, which may depress the market price for our
shares of Common Stock.
Sales of a substantial
number of our shares of Common Stock in the public market following this offering could cause the market price of our Common Stock
to decline. Although there can be no assurance that any of the $50.0 million worth of Common Stock being offered under this prospectus
supplement will be sold or the price at which any such shares might be sold, assuming that an aggregate of 2,526,529 shares of
our Common Stock are sold during the term of the Sales Agreement with Oppenheimer, in each case, for example, at a price of $19.79
per share, the last reported sale price of our Common Stock on the Nasdaq Capital Market on December 14, 2020, upon completion
of this offering, based on 8,352,277 shares of our Common Stock outstanding as of December 14, 2020, we will have outstanding
an aggregate of 10,878,806 shares of Common Stock, assuming no exercise of currently outstanding warrants and stock options.
Additional dilution
may result from the issuance of our Common Stock in connection with the exercise of outstanding stock options and warrants, as
well as other financing efforts.
You may experience
future dilution as a result of future equity offerings.
In order to raise additional
capital, we may in the future offer additional shares of our Common Stock or other securities convertible into or exchangeable
for shares of our Common Stock at prices that may not be the same as the price per share in this offering. We may sell shares of
Common Stock or other securities convertible into or exchangeable for our shares of Common Stock in any other offering at a price
per share that is less than the price per share paid by investors in this offering, and investors purchasing shares of Common Stock
or other securities convertible into or exchangeable for our shares of Common Stock in the future could have rights superior to
existing shareholders. The price per share at which we sell additional shares of Common Stock or other securities convertible or
exchangeable into our shares of Common Stock, in future transactions may be higher or lower than the price per share paid by investors
in this offering.
We have broad
discretion in how we use the net proceeds of this offering, and we may not use these proceeds effectively or in ways with which
you agree.
We have not designated
any portion of the net proceeds from this offering to be used for any particular purpose. Our management will have broad discretion
as to the application of the net proceeds of this offering and could use them for purposes other than those contemplated at the
time of this offering. Our shareholders may not agree with the manner in which our management chooses to allocate and spend the
net proceeds. Moreover, our management may use the net proceeds for corporate purposes that may cause the market price of our Common
Stock to decline.
Investors in
this offering will experience immediate dilution in the book value per share of the Common Stock purchased in the offering.
The shares of Common
Stock sold in this offering, if any, will be sold from time to time at various prices. However, the expected offering price of
the shares of Common Stock will be substantially higher than the net tangible book value per share of our currently outstanding
shares of Common Stock. After giving effect to the sale of shares of our Common Stock in the aggregate amount of $50.0 million
at an assumed offering price of $19.79 per share, the last reported sale price of our Common Stock on December 14, 2020 on
the Nasdaq Capital Market, and after deducting estimated commissions and estimated offering expenses, our as-adjusted net tangible
book value as of September 30, 2020 would have been approximately $90.3 million, or approximately $8.30 per share of Common
Stock. This represents an immediate increase in net tangible book value of approximately $3.28 per share of Common Stock to our
existing shareholders and an immediate dilution in as-adjusted net tangible book value of approximately $11.49 per share to new
investors of shares of our Common Stock in this offering. See “Dilution” on page S-10 of this prospectus supplement.
The actual number
of shares of Common Stock we will issue under the Sales Agreement with Oppenheimer, at any one time or in total, is uncertain.
Subject to certain
limitations in the Sales Agreement with Oppenheimer and compliance with applicable law, we have the discretion to deliver placement
notices to Oppenheimer at any time throughout the term of the Sales Agreement. The number of shares that are sold by Oppenheimer
after delivering a placement notice will fluctuate based on a number of factors, including the market price of the Common Stock
during the sales period, limits that we set with Oppenheimer, and the demand for our Common Stock during the sales period. Because
the price per share of each share sold will fluctuate during this offering, it is not currently possible to predict the number
of shares that will be sold or the gross proceeds to be raised in connection with those sales.
We do not expect
to pay dividends in the foreseeable future. As a result, you must rely on stock appreciation for any return on your investment.
We do not anticipate
paying cash dividends on our Common Stock in the foreseeable future. Any payment of cash dividends will also depend on our financial
condition, results of operations, capital requirements and other factors and will be at the discretion of our board of directors.
Accordingly, you will have to rely on capital appreciation, if any, to earn a return on your investment in our Common Stock. Furthermore,
we may in the future become subject to additional contractual restrictions on, or prohibitions against, the payment of dividends.
The Common Stock
offered hereby will be sold in “at the market” offerings, and investors who buy shares at different times will
likely pay different prices.
Investors who purchase shares in this offering
at different times will likely pay different prices, and so may experience different levels of dilution and different outcomes
in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares
sold in this offering. In addition, subject to the final determination by our board of directors, there is no minimum or maximum
sales price for shares to be sold in this offering. Investors may experience a decline in the value of the shares they purchase
in this offering as a result of sales made at prices lower than the prices they paid.
USE OF PROCEEDS
From time to time,
we may issue and sell our shares of Common Stock resulting in aggregate gross sales proceeds of up to $50.0 million. 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. There can be no assurance that, in the future, we will sell any
shares under or fully utilize the Sales Agreement with Oppenheimer as a source of financing.
We currently intend
to use the net proceeds from this offering for working capital and general corporate purposes, which may include capital expenditures,
research and development expenditures, preclinical study and clinical trial expenditures, acquisitions of new technologies and
investments, and business combinations.
The precise amount
and timing of the application of the net proceeds will depend upon a number of factors, such as the timing and progress of our
research and development efforts and the timing and progress of any partnering efforts. As of the date of this prospectus supplement,
we cannot specify with certainty the particular uses for the net proceeds from this offering. Depending on the outcome of our efforts
and other unforeseen events, our plans and priorities may change, and we may apply the net proceeds of this offering in different
manners than we currently anticipate. Accordingly, our management will have broad discretion in the timing and application of these
net proceeds. Pending application of the net proceeds as described above, we intend to temporarily invest the proceeds in short-term,
interest-bearing instruments.
DILUTION
If you invest in our
Common Stock, your interest will be diluted immediately to the extent of the difference between the public offering price per share
and the adjusted net tangible book value per share after this offering.
The net tangible book
value of our Common Stock as of September 30, 2020 was approximately $4.3 million, or approximately $0.72 per share. After
giving effect to the closing of the Unit Financing that resulted in net proceeds of approximately $37.6 million on October 9,
2020, on a pro forma basis the net tangible book value of our Common Stock as of September 30, 2020 was approximately $41.9
million, or approximately $5.02 per share. Accordingly, the Unit Financing resulted in an increase in pro forma net tangible book
value of approximately $4.30 per share. Net tangible book value per share represents the amount of our total tangible assets, excluding
goodwill and intangible assets, less total liabilities, divided by the total number of shares of our Common Stock outstanding.
Dilution per share to new investors in this offering represents the difference between the amount per share paid by new investors
for each share in this offering and the net tangible book value per share immediately following the completion of this offering.
After giving effect
to the sale of our Common Stock in the aggregate amount of $50.0 million at an assumed offering price of $19.79 per share, the
last reported sale price of our Common Stock on December 14, 2020 on the Nasdaq Capital Market, and after deducting estimated
commissions and estimated offering expenses, our as-adjusted net tangible book value as of September 30, 2020 would have been
approximately $90.3 million, or approximately $8.30 per share. This represents an immediate increase in pro forma net tangible
book value of approximately $3.28 per share to our existing shareholders and an immediate dilution in as-adjusted net tangible
book value of approximately $11.49 per share to new investors of our Common Stock in this offering, as illustrated by the following
table:
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Assumed public offering price per share
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$
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19.79
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Net tangible book value per share as of September 30, 2020
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$
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0.72
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Increase per share attributable to the private placement on October 9, 2020
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4.30
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Increase per share attributable to this offering
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3.28
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As-adjusted net tangible book value per share after giving effect to this offering
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8.30
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Dilution per share to new investors (1)(2)
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$
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11.49
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Notes
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(1)
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Calculated as the difference between the assumed public
offering price per share and the as-adjusted net tangible book value per share after this offering.
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(2)
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The foregoing is based on 5,867,058 shares of Common
Stock outstanding as of September 30, 2020, and the pro forma impact of the issuance of 2,484,853 shares of Common Stock
in the Unit Financing on October 9, 2020, for a total of 8,351,911 shares of Common Stock. This amount excludes
the following:
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618,307 shares of our Common Stock issuable upon the exercise of warrants outstanding as of September 30,
2020, all of which are currently exercisable;
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820,001 shares of our Common Stock issuable upon the exercise of the Unit Warrants issued on October 9,
2020 in the Unit Financing exercisable at $19.50 per share, All of the Unit Warrants are currently exercisable, except to the extent
that certain of the Unit Warrants are subject to a blocker provision, which restricts the exercise of a warrant if, as a result
of such exercise, the warrant holder, together with its affiliates and any other person whose beneficial ownership of Common Stock
would be aggregated with the warrant holder’s for purposes of Section 13(d) of the Exchange Act, would beneficially
own in excess of 4.99%, 9.99%, or 14.99% of our then issued and outstanding shares of Common Stock (including the shares of Common
Stock issuable upon such exercise), as such percentage ownership is determined in accordance with the terms of such Unit Warrant;
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944,459 shares of our Common Stock issuable upon the exercise of stock options outstanding as of
September 30, 2020, at a weighted average exercise price of $33.43 per share, of which stock options to purchase 477,219 shares
of Common Stock were then exercisable;
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46,950 shares of our Common Stock reserved for future grants of stock options (or other similar
equity instruments) under our equity incentive plans.
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The table above assumes
for illustrative purposes that an aggregate of 2,526,529 shares of our Common Stock are sold during the term of the Sales Agreement
with Oppenheimer at a price of $19.79 per share, the last reported sale price of our Common Stock on the Nasdaq Capital Market
on December 14, 2020, for aggregate net proceeds of approximately $48,360,000, after deducting commissions and estimated offering
expenses payable by us in the aggregate amount of $1,640,000. The as adjusted information is illustrative only and will adjust
based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time
the shares of Common Stock are sold pursuant to this prospectus supplement. The shares pursuant to the Sales Agreement with Oppenheimer
are being sold from time to time at various prices. An increase of $1.00 per share in the price at which the shares are sold from
the assumed offering price of $19.79 per share shown in the table above, assuming all of our Common Stock in the aggregate amount
of $50.0 million during the term of the Sales Agreement with Oppenheimer is sold at that price, would increase our as adjusted
net tangible book value per share after the offering to $8.39 per share and would increase the dilution in net tangible book value
per share to new investors in this offering to $12.40 per share, after deducting commissions and estimated aggregate offering expenses
payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $19.79
per share shown in the table above, assuming all of our Common Stock in the aggregate amount of $50.0 million during the term of
the Sales Agreement with Oppenheimer is sold at that price, would decrease our as adjusted net tangible book value per share after
the offering to $8.20 per share and would decrease the dilution in net tangible book value per share to new investors in this offering
to $10.59 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied
for illustrative purposes only.
To the extent that
any warrants or stock options have been or are exercised, new stock options are granted under our equity incentive plans or we
otherwise issue additional shares of Common Stock in the future, there will be further dilution to new investors. In addition,
we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities could result in further dilution to our shareholders.
PLAN OF DISTRIBUTION
We have entered into
a Sales Agreement with Oppenheimer, which we have filed as an exhibit to the registration statement of which this prospectus supplement
forms a part, under which we may offer and sell up to $50.0 million of our shares of Common Stock from time to time through Oppenheimer,
acting as Sales Agent. Sales of our shares of Common Stock, if any, under this prospectus supplement and the accompanying prospectus
will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under
the Securities Act.
Each time we wish to
issue and sell shares of Common Stock under the Sales Agreement, we will notify Oppenheimer of the number of shares to be issued,
the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and
any minimum price below which sales may not be made. Once we have so instructed Oppenheimer, unless Oppenheimer declines to accept
the terms of such notice, Oppenheimer has agreed to use its commercially reasonable efforts consistent with its normal trading
and sales practices to sell such shares up to the amount specified on such terms. The obligations of Oppenheimer under the Sales
Agreement to sell our shares of Common Stock are subject to a number of conditions that we must meet. We or Oppenheimer may suspend
the offering of our common stock upon delivering notice and subject to other conditions, as further described in the Sales Agreement.
The settlement of sales
of shares between us and Oppenheimer is generally anticipated to occur on the second trading day following the date on which the
sale was made. Sales of our shares of Common Stock as contemplated in this prospectus supplement will be settled through the facilities
of The Depository Trust Company or by such other means as we and Oppenheimer may agree upon. There is no arrangement for funds
to be received in an escrow, trust or similar arrangement.
We will pay Oppenheimer a commission for
its services in acting as Sales Agent equal to 3.0% of the aggregate gross proceeds we receive from each sale of our shares of
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
Oppenheimer for the fees and disbursements of its counsel, payable upon execution of the Sales Agreement, in an amount not to exceed
$60,000, in addition to certain ongoing disbursements of its legal counsel. We estimate that the total expenses for the offering,
excluding any commissions or expense reimbursement payable to Oppenheimer under the terms of the Sales Agreement, will be approximately
$80,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of
such shares.
Oppenheimer will provide
written confirmation to us before the open on the Nasdaq Capital Market on the day following each day on which shares of Common
Stock are sold under the Sales Agreement. Each confirmation will include the number of shares sold on that day, the corresponding
sales price and the issuance price payable to us. We will report at least quarterly the number of shares of Common Stock sold through
Oppenheimer, the net proceeds to us, and the compensation paid by us to Oppenheimer in connection with the sales of our common
stock.
In connection with
the sale of the shares of Common Stock on our behalf, Oppenheimer will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation of Oppenheimer will be deemed to be underwriting commissions or discounts.
We have agreed to indemnify Oppenheimer against certain civil liabilities, including liabilities under the Securities Act. We have
also agreed to contribute to payments Oppenheimer may be required to make in respect of such liabilities.
The offering of our
shares of Common Stock pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all shares of 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.
Oppenheimer 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, Oppenheimer
may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Oppenheimer 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 Oppenheimer, and Oppenheimer
may distribute the prospectus supplement and the accompanying prospectus electronically.
DESCRIPTION OF COMMON STOCK
This prospectus supplement describes the
general terms of our Common Stock. For a more detailed description of our capital stock, you should read the applicable provisions
of the Delaware General Corporation Law, or DGCL, the prospectus, and our charter and bylaws.
Our certificate of incorporation provides
authority for us to issue up to 500,000,000 shares of Common Stock, par value $0.001 per share. As of December 14, 2020, there
were 8,352,277 shares of our Common Stock outstanding. Under Delaware law, stockholders generally are not personally liable for
our debts or obligations solely as a result of their status as stockholders. Our outstanding shares of Common Stock are, and any
shares offered by this prospectus supplement will be, when issued and paid for, fully paid and nonassessable.
Holders of our Common Stock are entitled
to one vote per share on all matters submitted to our stockholders for a vote. There are no cumulative voting rights in the election
of directors. Our shares of Common Stock are entitled to receive such dividends as may be declared and paid by our Board of Directors
out of funds legally available therefor and to share ratably in the net assets, if any, of Rezolute upon liquidation. Our stockholders
have no preemptive rights to purchase any shares of our capital stock. Our Certificate of Incorporation provides that the Court
of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought
on our behalf, (ii) any action asserting a claim for breach of a fiduciary duty owed by any of our directors, officers, employees
or agents to us or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware
General Corporation Law, our certificate of incorporation or our bylaws or (iv) any action asserting a claim governed by the
internal affairs doctrine. Notwithstanding this exclusive forum provision, the exclusive forum provision shall not preclude or
contract the scope of exclusive federal or concurrent jurisdiction for actions brought under the Securities Exchange Act of 1934,
as amended, or the Securities Act of 1933, as amended, or the respective rules and regulations promulgated thereunder.
LEGAL MATTERS
Certain United States legal matters in
connection with this offering will be passed upon on our behalf by Dorsey & Whitney LLP, Denver, Colorado. Oppenheimer &
Co. Inc. is being represented in connection with this offering by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York,
New York.
EXPERTS
Plante & Moran, PLLC has audited
our consolidated financial statements included in our Annual Report on Form 10-K for the years ended June 30, 2020 and
2019, which are incorporated by reference in this prospectus supplement and elsewhere in the registration statement. Our financial
statements are incorporated by reference in reliance on Plante & Moran, PLLC’s report, given their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current
reports, proxy statements and other information with the SEC. The SEC maintains an Internet website at http://www.sec.gov
that contains reports, proxy and information statements, and other information regarding issuers that file electronically with
the SEC. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available
for download, free of charge, as soon as reasonably practicable after these reports are filed with, or furnished to, the SEC,
at our website at www.rezolutebio.com. Information contained on or accessible through our website is not a part of this
prospectus supplement, and the inclusion of our website address in this prospectus supplement is an inactive textual reference
only.
The SEC allows us to “incorporate
by reference” into this prospectus supplement the information in other documents that we file with it. This means that we
can disclose important information to you by referring you to those documents. The information incorporated by reference is considered
to be a part of this prospectus supplement, and information in documents that we file later with the SEC will automatically update
and supersede information contained in documents filed earlier with the SEC or contained in this prospectus supplement. We incorporate
by reference in this prospectus supplement (i) the documents listed below, (ii) all documents that we file with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the registration
statement of which this prospectus supplement is included and prior to the effectiveness of such registration statement, and (iii) any
future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination
of the offerings under this prospectus supplement; provided, however, that we are not incorporating, in each case, any documents
or information deemed to have been furnished and not filed, including any information that we disclose under Items 2.02 or
7.01 of any Current Report on Form 8-K, in accordance with SEC rules:
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|
·
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Annual Report
on Form 10-K for the fiscal year ended June 30, 2020 filed with the SEC on
October 13, 2020;
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|
·
|
Quarterly Report
on Form 10-Q for the quarter ended September 30, 2020 filed with the SEC on
November 12, 2020;
|
|
|
·
|
Description of
our Common Stock contained in our Registration Statement on Form 8-A, as filed with
the SEC on November 4, 2020 including any amendment or report filed for the purpose
of updating such description.
|
You may request a copy of these filings,
other than an exhibit to these filings unless we have specifically included or incorporated that exhibit by reference into the
filing, at no cost, by writing or telephoning us at the following address:
Rezolute, Inc.
201 Redwood Shores Parkway, Suite 315
Redwood City, CA 94065
(650) 206-4507
Any statement contained in a document incorporated
or deemed to be incorporated by reference into this prospectus supplement will be deemed to be modified or superseded for purposes
of this prospectus supplement to the extent that a statement contained in this prospectus supplement, any prospectus supplement,
or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus supplement modifies
or supersedes the 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.
Up to $50,000,000
Shares of Common Stock
PROSPECTUS
SUPPLEMENT
Oppenheimer & Co.
_________ __, 202_
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses
payable by us in connection with the issuance and distribution of the securities being registered pursuant to this registration
statement.
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SEC registration fee
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|
$
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21,820.00
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|
Printing expenses
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**
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Legal fees and expenses
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|
|
**
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Accounting fees and expenses
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|
|
**
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Fees and expenses of trustee and counsel
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|
|
**
|
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|
Rating Agency Fees
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|
|
**
|
|
|
Miscellaneous
|
|
|
**
|
|
|
Total
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|
$
|
**
|
|
|
|
**
|
These fees and expenses are calculated based on the number of issuances and amount of
securities offered and, accordingly, cannot be estimated at this time. Information regarding estimated expenses of issuance
and distribution of each identified class of securities being registered will be provided at the time such information is
available in a prospectus supplement in accordance with Rule 430B.
|
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
We are incorporated under the laws of the
State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason
of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request
of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by
reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director
has actually and reasonably incurred. Our certificate of incorporation and bylaws provide for the indemnification of our directors
and officers to the fullest extent permitted under the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware
General Corporation Law 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 duties as a
director, except for liability for any:
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|
·
|
transaction from which the director derives an improper personal benefit;
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|
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·
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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|
|
·
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unlawful payment of dividends or redemption of shares; or
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|
·
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breach of a director’s duty of loyalty to the corporation or its stockholders.
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Our certificate of incorporation includes
such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its
final disposition shall be paid by us upon delivery to us of an undertaking, by or on behalf of such director or officer, to repay
all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by
us.
As permitted by the Delaware General Corporation
Law, we have entered into indemnity agreements with each of our directors and executive officers. These agreements, among other
things, require us to indemnify each director and officer to the fullest extent permitted by law and advance expenses to each indemnitee
in connection with any proceeding in which indemnification is available.
We have an insurance policy covering our
officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act of 1933, as
amended, or the Securities Act, or otherwise.
ITEM 16. EXHIBITS
EXHIBITS
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Exhibit No.
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|
Description
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|
Registrant’s
Form
|
|
Date
Filed
|
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Exhibit
Number
|
|
Filed
Herewith
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1.1
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Form of Underwriting Agreement*
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|
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1.2
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Equity Distribution Agreement, dated December 18, 2020, by and between Rezolute, Inc. and Oppenheimer & Co. Inc
|
|
|
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|
|
|
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X
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3.1
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Articles of Conversion, dated January 10, 2013
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8-K
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1/11/13
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3.1
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|
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3.2
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Certificate of Conversion, dated January 10, 2013
|
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8-K
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1/11/13`
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3.2
|
|
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3.3
|
|
Certificate of Incorporation, dated January 10, 2013
|
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8-K
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1/11/13
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3.3
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|
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3.4
|
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Certificate of Amendment of the Certificate of Incorporation, dated April 30, 2014
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S-1
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5/20/14
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3.5
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|
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3.5
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Certificate of Amendment of the Certificate of Incorporation, dated November 28, 2017
|
|
8-K
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|
11/29/17
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|
3.1
|
|
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3.6
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|
Certificate of Designation dated December 7, 2015
|
|
8-K
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|
12/10/15
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|
3.1
|
|
|
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3.7
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|
Amended and Restated Bylaws, dated November 28, 2017
|
|
8-K
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|
11/29/17
|
|
3.2
|
|
|
|
3.8
|
|
Certificate of Ownership and Merger, dated December 6, 2017
|
|
8-K
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|
12/7/17
|
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2.1
|
|
|
|
3.9
|
|
Certificate of Designation of Series AA Convertible Preferred Stock
|
|
8-K
|
|
1/31/19
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|
2.1
|
|
|
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3.10
|
|
Certificate of Amendment of the Certificate of Incorporation, dated April 26, 2019
|
|
8-K
|
|
4/30/19
|
|
3.1
|
|
|
|
3.11
|
|
Certificate of Amendment of the Certificate of Incorporation, dated October 9, 2020
|
|
8-K
|
|
10/13/20
|
|
3.1
|
|
|
|
4.1
|
|
Form of Unit Warrant
|
|
8-K
|
|
10/13/20
|
|
4.1
|
|
|
|
4.2
|
|
Form of Indenture
|
|
|
|
|
|
|
|
X
|
|
5.1
|
|
Opinion of Dorsey & Whitney LLP
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|
|
|
|
|
|
|
X
|
|
5.2
|
|
Opinion of Dorsey & Whitney LLP
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|
|
|
|
|
|
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23.1
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|
Consent of Dorsey & Whitney LLP (to be included in Exhibit 5.1 and Exhibit 5.2).
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|
|
|
|
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X
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23.2
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Consent of Plante & Moran, PLLC
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|
|
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|
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X
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|
24
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Power of Attorney (included in the signature page)
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|
|
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X
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25.1
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|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee under the Indenture**
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*
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To be filed by amendment or as an exhibit to a Current
Report on Form 8-K by the registrant in connection with a specific offering and incorporated by reference herein
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|
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**
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To be filed separately under the electronic form type
305B2, if applicable.
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ITEM 17. UNDERTAKINGS
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|
(a)
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The undersigned registrant hereby undertakes:
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|
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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|
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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|
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(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
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|
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(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 (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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|
(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
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|
|
(3)
|
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:
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|
|
(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 the 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.
|
|
|
(b)
|
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.
|
|
|
(c)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
|
|
|
(d)
|
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 Commission under section 305(b)(2) of the Trust Indenture Act.
|
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Redwood City, State of California, on December 18, 2020.
|
|
|
REZOLUTE, INC.
|
|
|
|
|
|
By:
|
/s/ Nevan Elam
|
|
|
|
Nevan Elam
Chief Executive Officer
(Principal Executive and Financial Officer)
|
Each person whose signature appears below
constitutes and appoints each of Nevan Elam his attorney-in-fact and agent, with the full power of substitution and resubstitution
and full power to act without the other, for them in any and all capacities, to sign any and all amendments, including post-effective
amendments, and any registration statement relating to the same offering as this registration that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to this registration statement, and to file the
same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Nevan Elam
|
|
Chief Executive Officer and Director
|
|
December 18, 2020
|
|
Nevan Elam
|
|
(Principal Executive and Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Young-Jin Kim
|
|
Chairman of Board of Directors
|
|
December 18, 2020
|
|
Young-Jin Kim
|
|
|
|
|
|
|
|
|
/s/ Jung-Hee Lim
|
|
Director
|
|
December 18, 2020
|
|
Jung-Hee Lim
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Gil Labrucherie
|
|
Director
|
|
December 18, 2020
|
|
Gil Labrucherie
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Philippe Fauchet
|
|
Director
|
|
December 18, 2020
|
|
Philippe Fauchet
|
|
|
|
|
Exhibit 1.2
REZOLUTE,
INC.
$50,000,000
COMMON
STOCK
EQUITY
DISTRIBUTION AGREEMENT
December 18, 2020
Oppenheimer & Co. Inc.
85 Broad Street, 26th Floor
New York, New York 10004
Ladies and Gentlemen:
Rezolute, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with
Oppenheimer & Co. Inc., as follows:
1. Issuance and Sale of Shares. The Company
agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein,
it may issue and sell to or through Oppenheimer & Co. Inc., acting as agent and/or principal (the “Sales Agent”),
shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), having an
aggregate offering price of up to $50,000,000 (the “Maximum Amount”), subject to the limitations set
forth in Section 3(b) hereof. The issuance and sale of shares of Common Stock to or through the Sales Agent will be
effected pursuant to the Registration Statement (as defined below) filed, or to be filed, by the Company and after such
Registration Statement has been declared effective by the U.S. Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below)
to issue the Common Stock.
On the date of this
Agreement, the Company has filed, or will file, in accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the “Securities Act”), with the Commission, a registration
statement on Form S-3, including a base prospectus, relating to certain securities, including the Common Stock, to be issued from
time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the offer
and sale of Placement Shares (as defined below) pursuant to this Agreement included as part of such registration statement (the
“ATM Prospectus”). The Company will furnish to the Sales Agent, for use by the Sales Agent, copies
of the ATM Prospectus included as part of such registration statement, relating to the Placement Shares. Except where the context
otherwise requires, such registration statement, as amended when it becomes effective, including all documents filed as part thereof
or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement
pursuant to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated therein by reference, and the ATM Prospectus, including all documents
incorporated therein by reference, each of which is included in the Registration Statement, as it or they may be supplemented by
any additional prospectus supplement, in the form in which such prospectus and/or ATM Prospectus have most recently been filed
by the Company with the Commission, is herein called the “Prospectus.” Any reference herein to the Registration
Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any
copy filed with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System or any successor thereto
(collectively “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell the Common Stock through the Sales Agent, as agent, hereunder (each, a “Placement”),
it will notify the Sales Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires the Common Stock to be sold, which shall
at a minimum include the number of shares of Common Stock to be issued (the “Placement Shares”), the
time period during which sales are requested to be made, any limitation on the number of shares of Common Stock that may be sold
in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not be made, a form of
which containing such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice
shall originate from any of the individuals from the Company set forth on Schedule 2 (with a copy to each of
the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Sales
Agent set forth on Schedule 2, as such Schedule 2 may be amended from time to time. The
Placement Notice shall be effective upon receipt by the Sales Agent unless and until (i) in accordance with the notice requirements
set forth in Section 4, the Sales Agent declines to accept the terms contained therein for any reason, in its sole
discretion, (ii) the entire amount of the Placement Shares has been sold, (iii) in accordance with the notice requirements
set forth in Section 4, the Company suspends or terminates the Placement Notice, (iv) the Company issues a subsequent
Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (v) the Agreement has been terminated
under the provisions of Section 11. The amount of any discount, commission or other compensation to be paid by the
Company to the Sales Agent in connection with the sale of the Placement Shares through the Sales Agent, as agent, shall be as
set forth in Schedule 3. It is expressly acknowledged and agreed that neither the Company nor the Sales Agent
will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers
a Placement Notice to the Sales Agent and the Sales Agent does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Sales Agent.
(a) Subject
to the terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of
the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this
Agreement, the Sales Agent, as agent for the Company, will use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Stock Market
(the “Exchange”), for the period specified in the Placement Notice, to sell such Placement Shares up
to the amount specified by the Company in, and otherwise in accordance with the terms of such Placement Notice. If acting as agent
hereunder, the Sales Agent will provide written confirmation to the Company (including by email correspondence to each of the
individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) no later than the opening of the Trading Day
(as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth
the number of Placement Shares sold on such day, the compensation payable by the Company to the Sales Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions
made by the Sales Agent (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law deemed to be an
“at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales
made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. If expressly
authorized by the Company in a Placement Notice, the Sales Agent may also sell Placement Shares in privately negotiated transactions
provided that a vast majority of the Placement Shares sold pursuant to this Agreement are sold in the public. Subject to Section 3(c)
below, the Sales Agent shall not purchase Placement Shares for its own account as principal unless expressly authorized to
do so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the
Sales Agent will be successful in selling Placement Shares, and (ii) the Sales Agent will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Sales
Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and
regulations to sell such Placement Shares as required under this Section 3. For the purposes hereof, “Trading
Day” means any day on which the Company’s Common Stock is purchased and sold on the principal market on which
the Common Stock is listed or quoted.
(b) Under
no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would
exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement
pursuant to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares
of Common Stock, (iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company
under Form S-3 (including General Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number or dollar
amount of shares of Common Stock authorized from time to time to be issued and sold under this Agreement by the Company’s
board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agent
in writing, or (v) the number or dollar amount of shares of Common Stock for which the Company has filed the ATM Prospectus
or other prospectus or prospectus supplement thereto specifically relating to the offering of the Placement Shares pursuant to
this Agreement. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to
this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agent in writing. Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth
in this Section 3(b) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement
from time to time shall be the sole responsibility of the Company, and that the Sales Agent shall have no obligation in connection
with such compliance.
(c) The
Company acknowledges and agrees that the Sales Agent has informed the Company that the Sales Agent may, to the extent permitted
under the Securities Act and the Exchange Act (including, without limitation, Regulation M promulgated thereunder), purchase and
sell shares of Common Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase
Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Sales Agent in a Placement
Notice; provided, that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as
agreed by the Company and the Sales Agent in the Placement Notice or (ii) to the extent the Sales Agent may engage in sales of
Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity);
and, provided, further, that the Sales Agent acknowledges and agrees that, except as expressly set forth in a Placement
Notice, any such transactions are not being, and shall not be deemed to have been, undertaken at the request or direction of,
or for the account of, the Company, and that the Company has and shall have no control over any decision by the Sales Agent to
enter into any such transactions.
(d) During
the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event will the
Sales Agent or its affiliates engage in any market making, bidding, stabilization or other trading activity with regard to the
Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation
rules under the Exchange Act.
4. Suspension
of Sales.
(a) The
Company or the Sales Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2),
suspend any sale of Placement Shares for a period of time (a “Suspension Period”); provided,
however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4
shall be effective against the other unless it is made to one of the individuals named on Schedule 2 hereto,
as such schedule may be amended from time to time. During a Suspension Period, the Company shall not issue any Placement Notices
and the Sales Agent shall not sell any Placement Shares hereunder. The party that issued a suspension notice shall notify the
other party in writing of the Trading Day on which the Suspension Period shall expire not later than twenty-four (24) hours prior
to such Trading Day.
(b) Notwithstanding
any other provision of this Agreement, except in accordance with a duly adopted trading plan that complies with the requirements
of Rule 10b5-1 under the Securities Exchange Act of 1934, during any period in which the Company is in possession of material
non-public information, the Company and the Sales Agent agree that (i) no sale of Placement Shares will take place, (ii) the
Company shall not request the sale of any Placement Shares, and (iii) the Sales Agent shall not be obligated to sell or offer
to sell any Placement Shares.
5. Settlement.
(a) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the respective Point of Sale (as defined below) (each, a “Settlement Date”). The amount of proceeds
to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Sales Agent at which such Placement Shares were sold, after deduction
for (i) the Sales Agent’s discount, commission or other compensation for such sales payable by the Company pursuant
to Section 2 hereof, (ii) any other amounts due and payable by the Company to the Sales Agent hereunder pursuant
to Section 7(g) (Expenses) hereof and (iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales. “Point of Sale” means, for a Placement, the time at which an
acquiror of Placement Shares entered into a contract, binding upon such acquiror, to acquire such Placement Shares.
(b) Delivery
of Placement Shares. On each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided the Sales Agent
shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties
hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Sales Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior
to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation
to deliver duly authorized Placement Shares on a Settlement Date, in addition to and in no way limiting the rights and obligations
set forth in Section 9(a) (Indemnification and Contribution) hereto, the Company will (i) hold the Sales Agent,
its directors, officers, members, partners, employees and agents of the Sales Agent, each broker dealer affiliate of the Sales
Agent, and each person, if any, who (A) controls the Sales Agent within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act or (B) is controlled by or is under common control with the Sales Agent (each,
a “Sales Agent Affiliate”), harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent
(if applicable) and (ii) pay to the Sales Agent any commission, discount, or other compensation to which it would otherwise
have been entitled absent such default.
6. Representations
and Warranties of the Company.1 The
Company, on behalf of itself and its subsidiaries, represents and warrants to, and agrees with, the Sales Agent that as of each
Applicable Time (as defined in Section 22(a)):
(a) Compliance
with Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration Statement
and any 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 related to the Registration Statement and the Prospectus. 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 knowledge of the Company, are contemplated or threatened by the Commission. The
Registration Statement and the offer and sale of the Placement Shares as contemplated hereby meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. In the section entitled “Plan of Distribution”
in the ATM Prospectus, the Company has named Oppenheimer & Co., Inc. as an agent that the Company has engaged in connection
with the transactions contemplated by this Agreement. The Company was not and is not an “ineligible issuer” as defined
in Rule 405 under the Securities Act.
(b) No
Misstatement or Omission. As of (i) the time of filing of the Registration Statement and (ii) as of the date of
this Agreement, the Company was not an “ineligible issuer” in connection with the offering of the Placement Shares
pursuant to Rules 164, 405 and 433 under the Securities Act. The Company agrees to notify the Sales Agent promptly
upon the Company becoming an “ineligible issuer.” The Prospectus when filed will comply or complied and, as amended
or supplemented, if applicable, will comply in all material respects with the Securities Act. Each of the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective amendment thereto, at the time it becomes effective, and
as of each Applicable Time, if any, will comply in all material respects with the Securities Act and did not and, as of each Applicable
Time, if any, 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. The Prospectus, as amended or supplemented, as of its date,
did not and, as of each Applicable Time, if any, 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 two 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 furnished to
the Company in writing by the Sale Agent expressly for use therein. The parties hereto agree that the information provided
in writing by or on behalf of the Sales Agent expressly for use in the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, consists solely
of the material referred to in Schedule 5 hereto, as updated from time to time. 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.
1 Note:
reps and warranties remain under review by Mintz regulatory and IP specialists.
(c) S-3
Eligibility. At the time the Registration Statement and any Rule 462(b) Registration Statement was or will be filed
with the Commission, at the time the Registration Statement and any Rule 462(b) Registration Statement was or will be
declared effective by the Commission, and at the time the Company’s most recent Annual Report on Form 10-K was filed with
the Commission, the Company met or will meet the then applicable requirements for the use of Form S-3 under the Securities Act,
including, but not limited to, General Instruction I.B.6. of Form S-3, if and for so long as applicable. The Company is not a
shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in General
Instruction I.B.6. of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity
that is not a shell company.
(d) Distribution
of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion of the
Sales Agent’s distribution of the Placement Shares, any offering material in connection with the offering and sale of the
Placement Shares other than the Prospectus or the Registration Statement.
(e) The
Equity Distribution Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes
a valid, legal, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as
rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, and subject
to general principles of equity. The Company has full corporate power and authority to enter into this Agreement and to authorize,
issue and sell the Placement Shares as contemplated by this Agreement. This Agreement conforms in all material respects to the
descriptions thereof in the Registration Statement and the Prospectus.
(f) Authorization
of the Placement Shares. The Placement Shares to be sold by the Sales Agent, acting as agent and/or principal for the Company,
have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and non-assessable.
The issuance of the Placement Shares is not subject to the preemptive or other similar rights of any stockholder of the Company.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived. No person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Placement Shares hereunder, whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change in the condition (financial or otherwise), assets,
rights, operations, business, management or prospects of the Company and its subsidiaries, considered as one entity (any such
change is called a “Material Adverse Change”) or any development involving a prospective material adverse
change, which, individually or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Change;
(ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement
not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for regular quarterly dividends publicly announced by the Company or dividends paid to the Company
or other subsidiaries, by any of its subsidiaries on any class of capital stock or repurchase or redemption by the Company or
any of its subsidiaries of any class of capital stock.
(i) Independent
Accountants. Plante & Moran PLLC, who have certified certain financial statements of the Company, whose report with respect
to the financial statements (which term as used in this Agreement includes the related notes thereto) and any supporting schedules
filed with the Commission or incorporated by reference in the Registration Statement and included or incorporated by reference
in the Prospectus, are independent public accountants as required by the Securities Act and the rules and regulations thereunder.
(j) Preparation
of the Financial Statements. The consolidated financial statements of the Company, together with related notes and schedules
as incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position and the results
of operations and cash flows of the Company, at the indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with U.S. generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results
for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the Company. The statistical, industry-related and
market-related data included or incorporated by reference in the Registration Statement and the Prospectus are based on or derived
from sources which the Company reasonably and in good faith believes are reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent required. The summary financial and statistical data included
or incorporated by reference in the Prospectus fairly present the information set forth therein at the indicated dates and for
the indicated periods on a basis consistent with that of the audited financial statements contained, incorporated or deemed to
be incorporated in the Registration Statement. Any pro forma financial statements or data included or incorporated by reference
in the Registration Statement and the Prospectus comply with the requirements of Regulation S-X of the Securities Act, including,
without limitation, Article 11 thereof, and the assumptions used in the preparation of such pro forma financial statements
and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the circumstances referred
to therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those
statements and data. The other financial data set forth or incorporated by reference in the Registration Statement and the Prospectus
is accurately presented and prepared on a basis consistent with the financial statements and books and records of the Company.
The Company and its subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities” as that term is used in Accounting Standards Codification Paragraph
810-10-25-20), not disclosed in the Registration Statement and the Prospectus. All disclosures contained in the Registration Statement
or the Prospectus that contain “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission) comply, in all material respects, with Regulation G under the Exchange Act and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable.
(k) XBRL.
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.
(l) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware and is in good standing under such laws. The Company has requisite corporate power to
carry on its business as described in the Prospectus. The Company is duly qualified to transact business and is in good standing
in all jurisdictions in which the conduct of its business requires such qualification; except where the failure to be so qualified
or to be in good standing would not result in a Material Adverse Change. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed on Schedule 4. Each subsidiary
is an entity duly organized and validly existing under the laws of the jurisdiction of its incorporation and is in good standing
under such laws. Each of the subsidiaries has requisite corporate power to carry on its business as described in the Prospectus.
Each of the subsidiaries is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct
of its business requires such qualification; except where the failure to be so qualified or to be in good standing would not result
in a Material Adverse Change.
(m)
Capital Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in
the Prospectus. The form of certificates for the Common Stock conforms to the corporate law of the jurisdiction of the Company’s
incorporation. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with federal and state securities laws. None of the outstanding shares
of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries other than those disclosed in the Prospectus or in a document filed
as an exhibit to or incorporated by reference into the Registration Statement. All of the issued and outstanding capital stock
of, or other ownership interests in, each subsidiary of the Company 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 or claim.
(n) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries
is (i) in breach or violation of its certificate or articles of incorporation, charter, bylaws, limited liability company
agreement, certificate or agreement of limited or general partnership, memorandum and articles of association, or other similar
organizational documents, as the case may be, of such entity, (ii) in breach of or in default (or, with the giving of notice
or lapse of time or both, would be in default) (“Default”) under any indenture, mortgage, loan or credit
agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant 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 property
or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), or
(iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any
of their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such breaches, violations or
Defaults that would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s execution,
delivery and performance of this Agreement and consummation of the transactions contemplated hereby or by the Registration Statement
and the Prospectus (including the issuance and sale of the Placement Shares and the use of the proceeds from the sale of the Placement
Shares as described in the Prospectus under the caption “Use of Proceeds”) (i) will not result in any breach
or violation of the certificate or articles of incorporation, charter, bylaws, limited liability company agreement, certificate
or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents,
as the case may be, of the Company or any of its subsidiaries, (ii) will not conflict with or constitute a breach of, or
Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent
of any other party to, any Existing Instrument, and (iii) will not result in any violation of any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its
or their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults,
Debt Repayment Triggering Events or violations that would not, individually or in the aggregate, result in a Material Adverse
Change. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf), issued by the Company, the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its Significant Subsidiaries. Each approval, consent,
order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this Agreement and the performance of the Company of
the transactions herein contemplated has been obtained or made and is in full force and effect, except (i) such additional
steps as may be required by the bylaws and rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”)
or (ii) such additional steps as may be necessary to qualify the Common Stock for sale by the Sales Agent under state securities
or Blue Sky laws.
(o) No
Material Actions or Proceedings; Labor Disputes. There is no action, suit, claim or proceeding pending or, to the knowledge
of the Company, threatened against the Company before any court or administrative agency or otherwise (i) that is required
to be described in the Registration Statement or the Prospectus and are not so described or (ii) which, if determined adversely
to the Company, would reasonably be expected to result in a Material Adverse Change or prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration Statement and the Prospectus. The aggregate of all pending legal
or governmental proceedings to which the Company and its subsidiaries is a party or of which any of their property or assets is
the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Change. No labor dispute with the employees of the Company exists or,
to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor dispute
by the employees of any of its principal suppliers, contractors or customers, that would, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change. None of the employees of the Company or any of its subsidiaries is represented
by a union and, to the knowledge of the Company, no union organizing activities are taking place. Neither the Company nor any
of its subsidiaries has violated any federal, state or local law or foreign law relating to the discrimination in hiring, promotion
or pay of employees, nor any applicable wage or hour laws, or the rules and regulations thereunder, or analogous foreign laws
and regulations, which might, individually or in the aggregate, result in a Material Adverse Change.
(p) All
Necessary Permits, etc. Each of the Company and its subsidiaries has all material licenses, certifications, permits, franchises,
approvals, clearances and other regulatory authorizations (“Permits”) from governmental authorities
as are necessary to (i) conduct its businesses as currently conducted and (ii) own, lease and operate its properties
in the manner described in the Prospectus. There is no claim or proceeding pending or, to the knowledge of the Company, threatened,
involving the status of or sanctions under any of the Permits. Each of the Company and its subsidiaries has fulfilled and performed
all of its material obligations with respect to the Permits, and the Company is not aware of the occurrence of any event which
allows, or after notice or lapse of time would allow, the revocation, termination, or other impairment of the rights of the Company
or any of its subsidiaries under such Permit.
(q) Tax
Law Compliance. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed
have been filed or extensions thereof have been requested, and all taxes shown by such returns or otherwise assessed, which are
due and payable, have been paid, except assessments that are being contested in good faith and as to which adequate reserves have
been provided. Each of the Company and its subsidiaries has filed all other tax returns that are required to have been filed by
it pursuant to applicable foreign, state, provincial, local or other law except insofar as the failure to file such returns would
not result in a Material Adverse Change, and has paid all taxes 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 provided and except for such taxes or assessments the nonpayment of which would not, individually or in the
aggregate, result in a Material Adverse Change. The charges, accruals and reserves on the books of the Company and its subsidiaries
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
result in a Material Adverse Change. All material taxes which the Company and its subsidiaries are required by law to withhold
or to collect for payment have been duly withheld and collected and have been paid to the appropriate governmental authority or
agency or have been accrued, reserved against and entered on the books of the Company and its subsidiaries. There are no transfer
taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Sales
Agent of the Placement Shares, acting as agent and/or principal for the Company.
(r) Company
Not an “Investment Company”. The Company has been advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the “Investment Company Act”). The Company is not, and after receipt of payment
for the Placement Shares will not be required to register as, an “investment company” within the meaning of Investment
Company Act and will conduct its business in a manner so that it will not become subject to the Investment Company Act.
(s) Insurance. Except as otherwise described in the Prospectus, the Company carries, or is covered by, insurance in such
amounts and covering such risks as is generally considered adequate for the conduct of its business and the value of its properties
and as is customary for companies engaged in similar industries. All policies of insurance insuring the Company or its business,
assets, employees, officers and directors are in full force and effect, and the Company is in compliance with the terms of such
policies in all material respects. There are no claims by the Company under any such policy or instrument as to which an insurance
company is denying liability or defending under a reservation of rights clause. The Company has no reason to believe that it will
not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change.
(t) No
Price Stabilization or Manipulation. Neither the Company, nor any of its subsidiaries, nor any of its or their respective
directors, officers or, to the knowledge of the Company, controlling persons has taken, directly or indirectly, any action designed
to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Common Stock.
(u) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Prospectus which have not been described as required.
(v) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus
or any amendment or supplement thereto, at the time they were or hereafter are filed with the Commission under the Exchange Act,
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 each Point of Sale and each Settlement Date, 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.
(w)
Free Writing Prospectuses. The Company represents and warrants to the Sales Agent that neither it nor any of its
agents or representatives (other than the Sales Agent in its capacity as such) has made any offer relating to the Placement Shares
that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act and that it
agrees with the Sales Agent that it will not make any offer relating to the Placement Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act.
(x) Compliance
with Environmental Laws. To its knowledge, the Company is not in violation of any statute, any rule, regulation, decision
or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous
chemicals, toxic substances or radioactive and biological materials or relating to the protection or restoration of the environment
or human exposure to hazardous chemicals, toxic substances or radioactive and biological materials (collectively, “Environmental
Laws”). The Company neither owns nor, to its knowledge, operates any real property contaminated with any substance
that is subject to any Environmental Laws, is not liable for any off-site disposal or contamination pursuant to any Environmental
Laws, nor is it subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would
individually or in the aggregate result in a Material Adverse Change; and the Company is not aware of any pending investigation
which might lead to such a claim.
(y) Intellectual
Property. Each of the Company and its subsidiaries owns and has full right, title and interest in and to, or has valid licenses
to use, each material trade name, trademark, service mark, patent, copyright, approval, trade secret and other similar rights
(collectively “Intellectual Property”) under which the Company and its subsidiaries conduct all or any
material part of their respective businesses, and the Company has not created any lien or encumbrance on, or granted any right
or license with respect to, any such Intellectual Property, except where the failure to own or obtain a license or right to use
any such Intellectual Property could not reasonably be expected to result in a Material Adverse Change; there is no claim pending
against the Company or its subsidiaries with respect to any Intellectual Property, and the Company and its subsidiaries have not
received notice or otherwise become aware that any Intellectual Property that it uses or has used in the conduct of its business
infringes upon or conflicts with the rights of any third party.
(z) Brokers.
Other than the Sales Agent, 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.
(aa)
No Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for
business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any
of the officers or directors of the Company or any of their respective family members, except as disclosed in the Prospectus. The
Company has not directly or indirectly extended or maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any director or executive officer of the Company.
(bb)
No Reliance. The Company has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal,
tax or accounting advice in connection with the offering and sale of the Placement Shares.
(cc)
Broker-Dealer Status. Neither the Company nor any of its related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or
more intermediaries, controls or is a “person associated with a member” or “associated person of a member”
(within the meaning of Article I of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations
or associations between any member of FINRA and any of the Company’s officers, directors or 5% or greater security holders,
except as set forth in the Registration Statement. All of the information (including, but not limited to, information regarding
affiliations, security ownership and trading activity) provided to the Sales Agent or its counsel by the Company, its officers
and directors and the holders of any securities (debt or equity) or warrants, options or rights to acquire any securities of the
Company in connection with the filing to be made and other supplemental information to be provided to FINRA pursuant to Rule 5110
of FINRA in connection with the transactions contemplated by this Agreement is true, complete and correct, and copies of any
Company filings required to be filed with FINRA have been filed with the Commission or delivered to the Sales Agent for filing
with FINRA.
(dd)
Compliance with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries
are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting
business, except where failure to be so in compliance would not result in a Material Adverse Change.
(ee)
Certain Regulations. The studies, tests and clinical trials conducted by or on behalf of the Company and its subsidiaries
were and, if still pending, are being conducted in compliance with experimental protocols, procedures and controls pursuant to
accepted professional scientific standards and all applicable laws and authorizations, including, without limitation, the Federal
Food, Drug and Cosmetic Act and the rules and regulations promulgated thereunder, except where the failure to be in compliance
could not reasonably be expected to result in a Material Adverse Change; the descriptions of the results of such studies, tests
and clinical trials contained in the Registration Statement and the Prospectus are accurate and complete in all material respects
and fairly present the data derived from such studies, tests and clinical trials; except to the extent disclosed in the Registration
Statement and the Prospectus, to the knowledge of the Company, there are no studies, tests or clinical trials, the results of which
the Company believes reasonably call into question the study, test, or clinical trial results described or referred to in the Registration
Statement and the Prospectus when viewed in the context in which such results are described; and, except to the extent disclosed
in the Registration Statement and the Prospectus, the Company and its subsidiaries have not received any notices or correspondence
from any applicable governmental authority requiring the termination, suspension or material modification of any studies, tests
or clinical trials conducted by or on behalf of the Company or its subsidiaries.
(ff) FDA
Regulations. The Company and its subsidiaries: (A) are and at all times have been in compliance with all statutes, rules,
or regulations, including but not limited to those administered by the United States Food and Drug Administration (“FDA”),
the European Medicines Agency (“EMA”) and similar governmental authorities applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale,
storage, import, export or disposal of any products being developed, manufactured or distributed by the Company or its subsidiaries
(“Applicable Laws”), except as could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change; (B) have not received any warning letter or other correspondence or notice from the FDA,
EMA or any other governmental authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates,
approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);(C)
possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation
of any term of any such Authorizations; (D) have not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any governmental authority or third party alleging that any product operation
or activity is in violation of any Applicable Laws or Authorizations and have no knowledge that any such governmental authority
or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) have not
received notice that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or revoke
any Authorizations and have no knowledge that any such governmental authority is considering such action; (F) have filed, obtained,
maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented
by a subsequent submission); and (G) have not, either voluntarily or involuntarily, initiated, conducted, or issued or caused
to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, or other notice or action relating
to the alleged lack of safety or efficacy of any product or any alleged product defect or violation and, to the Company’s
knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
(gg)
Sarbanes–Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(hh)
Disclosure Controls And Procedures. The Company has established and maintains “disclosure controls and procedures”
(as defined in Rules 13a–15(e) and 15d–15(e) of the Exchange Act); the Company’s “disclosure controls
and procedures” are reasonably designed to ensure that all information (both financial and non–financial) required
to be disclosed by the Company in the reports that it will file or furnish under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the rules and regulations of the Commission, and that all such information is
accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure
and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange
Act with respect to such reports.
(ii)
Company’s Accounting System. The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences.
(jj) ERISA. The Company is in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined
in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such qualification.
(kk) Contracts and Agreements. There are no contracts, agreements, instruments or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto which have not been so described
in all material respects and filed as required by Item 601(b) of Regulation S-K under the Securities Act. The copies of all contracts,
agreements, instruments and other documents (including governmental licenses, authorizations, permits, consents and approvals and
all amendments or waivers relating to any of the foregoing) that have been furnished to the Sales Agent or its counsel are complete
and genuine and include all material collateral and supplemental agreements thereto. All contracts and agreements between the Company
and third parties expressly referenced in the Registration Statement or the Prospectus are legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their respective terms, except as rights to indemnity thereunder
(as applicable) may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity.
(ll) Title to Properties. Except as set forth in the Registration Statement and the Prospectus, the Company and each of
its subsidiaries have good and marketable title to all of the properties and assets reflected as owned in the financial statements
referred to in Section 6(j) above (or elsewhere in the Registration Statement and the Prospectus), in each case free and clear
of any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except such as do not materially
and adversely affect the value of such property or assets and do not materially interfere with the use made or proposed to be made
of such property by the Company or any subsidiary. The material real property, improvements, equipment and personal property held
under lease by the Company or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are
not material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment
or personal property by the Company or such subsidiary. The Company and each of its subsidiaries have such consents, easements,
rights-of-way or licenses from any person (“rights-of-way”) as are necessary to enable the Company and
each of its subsidiaries to conduct its business in the manner described in the Registration Statement and the Prospectus, and
except for such rights-of-way the lack of which would not, individually or in the aggregate, result in a Material Adverse Change.
(mm)
No Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly,
to any federal or local official or candidate for, any federal or state office in the United States or foreign offices by the Company
or any of its officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any other person
in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization relating
to the business of the Company, except for such payments or inducements as were lawful under applicable laws, rules and regulations.
Neither the Company, nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company, (i) has used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any government
official or employee from corporate funds; or (iii) made any bribe, unlawful rebate, payoff, influence payment, kickback or
other unlawful payment in connection with the business of the Company.
(nn)
Foreign Corrupt Practices Act. None of the Company, any subsidiary or, to the knowledge of the Company, any director,
officer, agent, employee, 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, and the rules and regulations thereunder (collectively, the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
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 “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company and its subsidiaries
have conducted their respective businesses in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(oo)
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, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(pp)
OFAC. None of the Company, any subsidiary or, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(qq)
Exchange Listing. The Common Stock is currently listed on the Exchange under the trading symbol “RZLT.”
Except as disclosed in the Prospectus, the Company has not, in the 12 months preceding the date the first Placement Notice is given
hereunder, received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance
requirements. Except as disclosed in the Prospectus, the Company has no reason to believe that it will not in the foreseeable future
continue to be in compliance with all such listing and maintenance requirements.
(rr)
Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds
thereof by the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ss)
Continuous Offering Agreements. Except for this Agreement, the Company is not party to any other equity distribution
or sales agency agreement or other similar arrangement with any other agent or any other representative in respect of any “at
the market offering” or other continuous equity offering transaction.
(tt)
No Material Defaults. Neither the Company nor any of its subsidiaries has defaulted on any installment on indebtedness
for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Change.
Any certificate signed by an officer of
the Company and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to or in connection with this Agreement
shall be deemed to be a representation and warranty by the Company to the Sales Agent as to the matters set forth therein.
The Company acknowledges that the Sales
Agent and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel
to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7.
Covenants of the Company. The Company covenants
and agrees with the Sales Agent that:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating
to any Placement Shares is required to be delivered by the Sales Agent under the Securities Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Sales
Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and
of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional
information, (ii) the Company will prepare and file with the Commission, promptly upon the Sales Agent’s request, any
amendments or supplements to the Registration Statement or Prospectus that, in the Sales Agent’s reasonable opinion, may
be necessary or advisable in connection with the distribution of the Placement Shares by the Sales Agent (provided, however,
that the failure of the Sales Agent to make such request shall not relieve the Company of any obligation or liability hereunder,
or affect the Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement, and
provided, further, that the only remedy the Sales Agent shall have with respect to the failure to make such filing
shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not
file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, relating
to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to the Sales
Agent within a reasonable period of time before the filing and the Sales Agent has not reasonably objected thereto (provided,
however, that the failure of the Sales Agent to make such objection shall not relieve the Company of any obligation or liability
hereunder, or affect the Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement,
and provided, further, that the only remedy the Sales Agent shall have with respect to the failure by the Company
to obtain such consent shall be to cease making sales under this Agreement); (iv) the Company will furnish to the Sales Agent
at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration
Statement or Prospectus, except for those documents available via EDGAR; (v) the Company will cause each amendment or supplement
to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act)
or, in the case of any documents incorporated by reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed.
(b)
Notice of Commission Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains
knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any notice objecting to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification
of the Placement Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose or
any examination pursuant to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the Placement Shares; and it will promptly use its commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
Until such time as any stop order is lifted, the Sales Agent shall cease making offers and sales under this Agreement.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply
with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective
due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any
event occurs 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 a material fact necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply
with the Securities Act, the Company will promptly notify the Sales Agent to suspend the offering of Placement Shares during such
period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance.
(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required
to be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use
its reasonable best efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for
sale under the securities laws of such jurisdictions as the Sales Agent reasonably designates and to continue such qualifications
in effect so long as required for the distribution of the Placement Shares; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation or dealer in securities or file a general consent to
service of process in any jurisdiction.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to the Sales Agent and its counsel (at
the expense of the Company) copies of (i) the Registration Statement and the Prospectus (including all documents incorporated
by reference therein) filed with the Commission on the date of this Agreement and (ii) all amendments and supplements to the
Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the
Placement Shares is required to be delivered by the Sales Agent under the Securities Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable
and in such quantities as the Sales Agent may from time to time reasonably request and, at the Sales Agent’s request, will
also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided,
however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Sales Agent to the
extent such document is available on EDGAR.
(f)
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but
in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement of the
Company and its subsidiaries (which need not be audited), including, but not limited to its Annual Report on Form 10-K, covering
a 12-month period that complies with Section 11(a) and Rule 158 of the Securities Act. The terms “earnings statement”
and “make generally available to its security holders” shall have the meanings set forth in Rule 158 under the
Securities Act.
(g) Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is
terminated in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident
to the performance of its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation,
printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment
and supplement thereto, (ii) the preparation, issuance and delivery of the Placement Shares, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Placement Shares to the Sales Agent,
(iii) the fees and disbursements of the counsel, accountants and other advisors to the Company in connection with the transactions
contemplated by this Agreement; (iv) the qualification of the Placement Shares under securities laws in accordance with the
provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees
or disbursements of counsel for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth in
(ix) below), (v) the printing and delivery to the Sales Agent of copies of the Prospectus and any amendments or supplements
thereto, and of this Agreement, (vi) the fees and expenses incurred in connection with the listing or qualification of the
Placement Shares for trading on the Exchange, (vii) the fees and expenses of the transfer agent or registrar for the Common
Stock; (viii) filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department (including,
with respect to any required review by FINRA, the reasonable fees and expenses of the Sales Agent’s counsel); and (ix) the
Company shall reimburse the Sales Agent for the fees and disbursements of the Sales Agent’s counsel in an amount not to exceed
(a) $60,000 in connection with the establishment of this at-the-market offering, and (b) thereafter, $3,000 on a quarterly basis
(such approval not to be unreasonably withheld, conditioned or delayed).
(h) Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use
of Proceeds.”
(i) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, the Company shall provide the Sales Agent notice
as promptly as reasonably possible before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise
disposes of any shares of Common Stock (other than Placement Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided,
that such notice shall not be required in connection with the (i) issuance, grant or sale of Common Stock, options or other rights
to purchase or otherwise acquire Common Stock, or Common Stock issuable upon the exercise of options or other equity awards, in
each case granted pursuant to any stock option, stock bonus or other stock or compensatory plan or arrangement, whether now in
effect or hereafter implemented, (ii) issuance of securities in connection with an acquisition, merger or sale or purchase of
assets which is described at the time of issuance in the Registration Statement and the Prospectus, (iii) issuance or sale of
Common Stock upon conversion of securities or the exercise of warrants, options or other rights then in effect or outstanding,
and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Sales Agent, and (iv) issuance or sale
of Common Stock pursuant to any dividend reinvestment and stock purchase plan that the Company has in effect or may adopt from
time to time, provided that the implementation of such new plan is disclosed to the Sales Agent in advance. If the Company
notifies the Sales Agent under this Section 7(i) of a proposed sale of shares of Common Stock or Common Stock equivalents,
the Sales Agent may suspend any offers and sales of Securities under this Agreement for a period of time deemed appropriate by
the Sales Agent.
(j) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise the Sales Agent promptly after it shall have received notice or obtained knowledge thereof,
of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document
provided to the Sales Agent pursuant to this Agreement.
(k) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent or
its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during regular business hours and at the Company’s principal offices,
as the Sales Agent may reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K and Quarterly
Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement Shares were
made by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement Shares sold
to or through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent
with respect to such sales of Placement Shares. To the extent that the filing of a prospectus supplement to the Prospectus with
the Commission with respect to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act,
the Company agrees that, on or before such dates as the Securities Act shall require, the Company will (i) file a prospectus
supplement to the Prospectus with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act,
which prospectus supplement will set forth, with regard to the relevant period, the amount of Placement Shares sold to or through
the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to
such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market
on which such sales were effected as may be required by the rules or regulations of such exchange or market. The Company shall
afford the Sales Agent and its counsel with a reasonable opportunity to review and comment upon, shall consult with the Sales
Agent and its counsel on the form and substance of, and shall give due consideration to all such comments from the Sales Agent
or its counsel on, any such filing prior to the issuance, filing or public disclosure thereof; provided, however, that the Company
shall not be required to submit for review (A) any portion of any periodic reports filed with the Commission under the Exchange
Act other than the specific disclosure relating to any sales of Placement Shares and (B) any disclosure contained in periodic
reports filed with the Commission under the Exchange Act if it shall have previously provided the same disclosure for review in
connection with a previous filing.
(m)
Representation Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each
time the Company subsequently thereafter (i) amends or supplements the Registration Statement or the Prospectus relating to
the Placement Shares (other than (A) a prospectus supplement filed in accordance with Section 7(l) of this Agreement
or (B) a supplement or amendment that relates to an offering of securities other than the Placement Shares) by means of a
post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration
Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange
Act (including any Form 10-K/A containing amended financial information or a material amendment to the previously filed Form 10-K);
(iii) files a quarterly report on Form 10-Q under the Exchange Act; (iv) files a report on Form 8-K containing amended
financial information (other than an earnings release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form
8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued
operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act; or (v) sells Placement
Shares to the Sales Agent as principal at the Point of Sale pursuant to the applicable Placement Notice (each date of filing of
one or more of the documents and each other date referred to in clauses (i) through (v) shall be a “Representation
Date”), the Company shall furnish the Sales Agent within three (3) Trading Days after each Representation Date with
a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide a certificate under this Section 7(m)
shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue
until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall
be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver
shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing,
if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver
and did not provide the Sales Agent with a certificate under this Section 7(m), then before the Company delivers the
Placement Notice or the Sales Agent sells any Placement Shares, the Company shall provide the Sales Agent with a certificate, in
the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) Legal Opinions. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to
be furnished to the Sales Agent (i) the written opinions and negative assurance of Dorsey & Whitney LLP, counsel to the Company,
or other counsel reasonably satisfactory to the Sales Agent (“Company Counsel”), and (ii) the written
opinion of Kilpatrick Townsend & Stockton LLP, intellectual property counsel to the Company, or other counsel reasonably satisfactory
to the Sales Agent (“Company IP Counsel”), in each case in form and substance reasonably satisfactory
to the Sales Agent. Thereafter, within three (3) Trading Days after each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable pursuant to Section 7(m),
and not more than once per calendar quarter, the Company shall cause to be furnished to the Sales Agent the written opinions and
negative assurance of Company Counsel and Company IP Counsel substantially in the form previously agreed between the Company and
the Sales Agent, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that if Company Counsel or Company IP Counsel has previously furnished to the Sales Agent such
written opinions and negative assurance substantially in the form previously agreed between the Company and the Sales Agent, such
counsel may, in respect of any future Representation Date, furnish the Sales Agent with a letter (a “Reliance Letter”)
in lieu of such opinions and negative assurance to the effect that the Sales Agent may rely on the prior opinions and negative
assurance of such counsel delivered pursuant to this Section 7(n) to the same extent as if it were dated the date of
such Reliance Letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented to the date of such Reliance Letter).
(o)
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading
Days after each subsequent Representation Date with respect to which the Company is obligated to deliver a certificate pursuant
to Section 7(m) for which no waiver is applicable pursuant to Section 7(m), the Company shall cause its
independent accountants to furnish the Sales Agent letters (the “Comfort Letters”), dated the date that
the Comfort Letter is delivered, in form and substance satisfactory to the Sales Agent, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the rules and regulations of the
PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to the Sales
Agent in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter
had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
(p)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Common Stock or (ii) sell, bid for, or purchase the Placement Shares
to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares
other than the Sales Agent.
(q) Insurance. The Company and its subsidiaries shall maintain, or caused to be maintained, insurance in such amounts
and covering such risks as is reasonable and customary for the business in which it is engaged.
(r) Compliance
with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental
permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described
in the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be
conducted, in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except
where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected
to result in a Material Adverse Change.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
is or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will be required to register as, an “investment company” within the meaning of such term under
the Investment Company Act.
(t) Securities
Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities
Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings
in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u) No Offer to Sell. Other than the Prospectus, neither the Sales Agent nor the Company (including its agents and representatives,
other than the Sales Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to
sell or solicitation of an offer to buy Placement Shares hereunder.
(v)
Sarbanes-Oxley Act. The Company and its subsidiaries will use their best efforts to comply with all effective applicable
provisions of the Sarbanes-Oxley Act.
(w) New Registration Statement. If immediately prior to the third anniversary of the initial effective date of the Registration
Statement, any of the Placement Shares remain unsold, the sale of the Placement Shares under this Agreement shall automatically
be suspended unless and until the Company files a new shelf registration statement relating to the Placement Shares and such new
registration statement is declared effective by the Commission. References herein to the Registration Statement shall include such
new shelf registration statement. If any such new shelf registration statement becomes effective prior to the termination date
of this Agreement, the Company agrees to notify the Sales Agent of such effective date.
8. Conditions
to the Sales Agent’s Obligations. The obligations
of the Sales Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations
and warranties made by the Company herein, to the due performance by the Company of its obligations hereunder, to the completion
by the Sales Agent of a due diligence review satisfactory to the Sales Agent in its reasonable judgment, and to the continuing
satisfaction (or waiver by the Sales Agent in its sole discretion) of the following additional conditions:
(a) Registration Statement Effective. The Registration Statement shall be effective and shall be available for the sale
of all Placement Shares contemplated to be issued by any Placement Notice.
(b) Securities
Act Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b) under the
Securities Act within the applicable time period prescribed for such filing by Rule 424(b) (without reliance on Rule 424(b)(8)
of the Securities Act). All other filings with the Commission required by Rule 424 under the Securities Act to have been
filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed
for such filing by Rule 424.
(c) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any
of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any material statement made in
the Registration Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in the Registration Statement, related Prospectus or
such documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state
any material 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.
(d) No
Misstatement or Material Omission. The Sales Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Agent’s reasonable opinion
is material, or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(e) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Change
or any development that could reasonably be expected to result in a Material Adverse Change, or any downgrading in or withdrawal
of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization
or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s
securities (other than asset backed securities), the effect of which, in the case of any such action by a rating organization
described above, in the reasonable judgment of the Sales Agent (without relieving the Company of any obligation or liability it
may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares
on the terms and in the manner contemplated by this Agreement and the Prospectus.
(f) Company
Counsel Legal Opinion. The Sales Agent shall have received the opinions and negative assurances of Company Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances
is required pursuant to Section 7(n).
(g) Company
IP Counsel Legal Opinion. The Sales Agent shall have received the opinions and negative assurances of Company IP Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances
is required pursuant to Section 7(n).
(h) Sales
Agent Counsel Legal Opinion. The Sales Agent shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel to the Sales Agent, on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant
to Section 7(n), such negative assurances with respect to such matters as the Sales Agent may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(i) Comfort Letter. The Sales Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o)
on or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(j) Representation
Certificate. The Sales Agent shall have received the certificate required to be delivered pursuant to Section 7(m)
on or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(k) Secretary’s
Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall have received a
certificate, signed on behalf of the Company by its corporate Secretary, certifying as to (i) the Certificate of Incorporation
of the Company, (ii) the By-laws of the Company, (iii) the resolutions of the Board of Directors of the Company (or
a committee thereof) authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement Shares
and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by
this Agreement.
(l) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have
been delisted from the Exchange.
(m) Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as the
Sales Agent may have reasonably requested. All such opinions, certificates, letters and other documents shall have been in compliance
with the provisions hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates,
letters and other documents as the Sales Agent shall have reasonably requested.
(n) Approval for Listing. The Placement Shares shall have been approved for listing on the Exchange, subject only to
notice of issuance.
(o) No Termination Event. There shall not have occurred any event that would permit the Sales Agent to terminate this
Agreement pursuant to Section 11(a).
(p) FINRA. FINRA shall not have raised any objection with respect to the fairness or reasonableness of the terms and
arrangements related to the sale of the Placement Shares pursuant to this Agreement.
9. Indemnification
and Contribution.
(a) Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers,
members, partners, employees and agents of the Sales Agent each broker dealer affiliate of the Sales Agent, and each the Sales
Agent Affiliate, if any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited
to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in
settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties
and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and
when incurred, to which the Sales Agent, or any such person, may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any free writing
prospectus or in any application or other document executed by or on behalf of the Company or based on written information furnished
by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof
or filed with the Commission, (y) the omission or alleged omission to state in any such document a material fact required
to be stated in it or necessary to make the statements in it not misleading or (z) any breach by any of the indemnifying parties
of any of their respective representations, warranties and agreements contained in this Agreement; provided, however, that
this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale
of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance upon
and in strict conformity with written information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly
for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be
in addition to any liability that the Company might otherwise have.
(b) The Sales Agent Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors
and each officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by
or is under common control with the Company (each, a “Company Affiliate”) from and against any and all
losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative, legal and
other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 9(c))
of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when incurred, to which any such Company Affiliate, may
become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly,
on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the
Prospectus or any amendment or supplement thereto, or (y) the omission or alleged omission to state in any such document a
material fact required to be stated in it or necessary to make the statements in it not misleading; provided, however,
that this indemnity agreement shall apply only to the extent that such loss, claim, liability, expense or damage is caused directly
by an untrue statement or omission made in reliance upon and in strict conformity with written information relating to the Sales
Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x) of
this Section 9(b), which the Company acknowledges consists solely of the material referred to in Schedule 5
hereto, as updated from time to time.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party
or parties under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 9 and (ii) any
liability that it may have to any indemnified party under the foregoing provision of this Section 9 unless, and only
to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying
party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such claim, action or proceeding.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable
from the Company or the Sales Agent, the Company and the Sales Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by
the Company from persons other than the Sales Agent, such as persons who control the Company within the meaning of the Securities
Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution)
to which the Company and the Sales Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Sales Agent on the other. The relative benefits received by the Company on the
one hand and the Sales Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds from the
sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Sales Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on
the one hand, and the Sales Agent, on the other, with respect to the statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect
to such offering. Such relative fault shall be determined by reference to, among other things, whether the 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
or the Sales Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Sales Agent agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party
as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), the Sales Agent shall
not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any person
who controls a party to this Agreement within the meaning of the Securities Act will have the same rights to contribution as that
party (and any officers, directors, members, partners, employees or agents of the Sales Agent and each broker dealer affiliate
of the Sales Agent will have the same rights to contribution as the Sales Agent), and each officer of the Company who signed the
Registration Statement and each director of the Company will have the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this Section 9(d), will notify any
such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may have under this Section 9(d) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party
from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c)
hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such
consent is required pursuant to Section 9(c) hereof.
10. Representations
and Agreements to Survive Delivery. The indemnity
and contribution agreements contained in Section 9 of this Agreement and all representations and warranties of the
Company herein or in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless of (i) any
investigation made by or on behalf of the Sales Agent, any controlling person of the Sales Agent, or the Company (or any of their
respective officers, directors, members or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) The
Sales Agent shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any
Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred
that, in the reasonable judgment of the Sales Agent, may materially impair the ability of the Sales Agent to sell the Placement
Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed
hereunder; provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver)
any certification, opinion, or letter required under Sections 7(m), 7(n), or 7(o), the Sales Agent’s
right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30)
days from the date such delivery was required, (iii) any other condition of the Sales Agent’s obligations hereunder
is not fulfilled, or (iv) any suspension or limitation of trading in the Placement Shares or in securities generally on the
Exchange shall have occurred (including automatic halt in trading pursuant to market-decline triggers, other than those in which
solely program trading is temporarily halted), or a major disruption of securities settlements or clearing services in the United
States shall have occurred, or minimum prices for trading have been fixed on the Exchange. Any such termination shall be without
liability of any party to any other party except that the provisions of Section 7(g) (Expenses), Section 9
(Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section 11(f),
Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall
remain in full force and effect notwithstanding such termination. If the Sales Agent elects to terminate this Agreement as provided
in this Section 11(a), the Sales Agent shall provide the required notice as specified in Section 12 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.
(c) The Sales Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12,
to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of Section 7(g), Section 9,
Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and
sale of all of the Placement Shares to or through the Sales Agent on the terms and subject to the conditions set forth herein;
provided that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b),
(c) or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such
termination by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 shall remain in full force and effect.
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided,
however, that such termination shall not be effective until the close of business on the date of receipt of such notice
by the Sales Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale
of Placement Shares, such termination shall not become effective until the close of business on such Settlement Date and such Placement
Shares shall settle in accordance with the provisions of this Agreement.
12.
Notices. All notices or other communications
required or permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing,
unless otherwise specified, and if sent to the Sales Agent, shall be delivered to:
Oppenheimer & Co. Inc.
85 Broad Street, 26th Floor
New York, NY 10004
Attention: Peter Vogelsang, Office of General Counsel
Email: peter.vogelsang@opco.com
with a copy (which shall not constitute
notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
666 Third Avenue
New York, New York 10017
Attention: Ivan K. Blumenthal, Esq.
Facsimile: (212) 983-3115
and if to the Company, shall be delivered
to:
Rezolute, Inc.
201 Redwood Shores Pkwy, Suite 315
Redwood
City, CA 94065
Attention: Nevan Elam, J.D., Chief Executive Officer
Email: nevan@rezolutebio.com
with a copy (which shall not constitute
notice) to:
Dorsey & Whitney LLP
21400 Wewatta Street, Suite 400
Denver,
CO 80208
Attention: Anthony Epps, Esq.
Email: epps.anthony@dorsey.com
Each party may change
such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day,
on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day
on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 12 if sent
to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received
at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to
auto-reply). Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic
form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt
of the written request for Nonelectronic Notice.
13.
Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the Company and the Sales Agent and their respective successors and permitted
assigns and, as to Sections 5(b) and 9, the other indemnified parties specified therein. References to any of
the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Sales Agent
may assign its rights and obligations hereunder to an affiliate of the Sales Agent without obtaining the Company’s consent.
14.
Adjustments for Share Splits. The parties
acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any share
split, share dividend or similar event effected with respect to the Common Stock.
15.
Entire Agreement; Amendment; Severability.
This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) and any other
writing entered into by the parties relating to this Agreement constitutes the entire agreement and supersedes all other prior
and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company
and the Sales Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full
force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions
herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to
the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.
16.
Applicable Law; Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard
to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection
with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
(certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
17.
Waiver of Jury Trial. The Company and the
Sales Agent each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising
out of this Agreement or any transaction contemplated hereby.
18.
Absence of Fiduciary Relationship. The
Company acknowledges and agrees that:
(a)
the Sales Agent is acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement
and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective
affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and the Sales Agent,
on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Sales Agent has advised or is advising the Company on other matters, and the Sales Agent has no obligation to the
Company with respect to the transactions contemplated by this Agreement, except the obligations expressly set forth in this Agreement;
(b)
the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c)
the Sales Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate;
(d)
the Company has been advised and is aware that the Sales Agent and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company and that the Sales Agent has no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(e)
the Company waives, to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect,
in contract, tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty
claim on behalf of or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19.
Use of Information. The Sales Agent may
not provide any information gained in connection with this Agreement and the transactions contemplated by this Agreement, including
due diligence, to any third party other than its legal counsel advising it on this Agreement unless expressly approved by the Company
in writing.
20.
Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission.
21.
Effect of Headings; Knowledge of the Company.
The section and Exhibit headings herein are for convenience only and shall not affect the construction hereof. All references in
this Agreement to the “knowledge of the Company” or the “Company’s knowledge” or similar qualifiers
shall mean the actual knowledge of the directors and officers of the Company, after due inquiry.
22.
Definitions. As used in this Agreement,
the following term has the meaning set forth below:
(a)
“Applicable Time” means the date of this Agreement, each Representation Date, each date
on which a Placement Notice is given, each Point of Sale, and each Settlement Date.
[Remainder of Page Intentionally
Blank]
If the foregoing correctly
sets forth the understanding between the Company and the Sales Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Sales Agent.
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Very truly yours,
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REZOLUTE, INC.
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By:
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Name: Keith Vendola
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Title: Chief Strategy Officer
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ACCEPTED as of the date first-above
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written:
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OPPENHEIMER & CO. INC.
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By:
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Name:
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Title:
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sCHEDULE
1
FORM
OF PLACEMENT NOTICE
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To:
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Oppenheimer & Co., Inc.
Attention: Thomas Villano
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Subject:
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At-The-Market Offering—Placement Notice
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Gentlemen:
Pursuant to the terms and subject to the
conditions contained in the Equity Distribution Agreement dated [___________], 2020 (the “Agreement”) between
Rezolute, Inc., a Delaware corporation (the “Company”), and Oppenheimer & Co., Inc. (the “Sales
Agent”), I hereby request on behalf of the Company that the Sales Agent sell up to [___] shares of the Company’s
common stock, par value $0.001 per share, at a minimum market price of $[_______] per share, during the period beginning [MONTH/DAY/TIME]
and ending [MONTH/DAY/TIME].
REZOLUTE, INC.
SCHEDULE 2
Notice
Parties
Rezolute, Inc.
Nevan C. Elam, Chief Executive Officer
Email: nevan@rezolutebio.com
Jason Chan, Director of Accounting
Email:
jason@rezolutebio.com
Oppenheimer & Co. Inc.
Email:
DL-EquityATMOffering@opco.com
With
a copy to: IKBlumenthal@mintz.com
SCHEDULE
3
Compensation
The Sales Agent shall be paid compensation
equal to 3.0% of the gross proceeds from the sales of Placement Shares pursuant to the terms of this Agreement and shall be reimbursed
for certain expenses in accordance with Section 7(g) of this Agreement.
The foregoing rate of compensation shall
not apply when the Sales Agent acts as principal, in which case the Company may sell the Placement Shares to the Sales Agent as
principal at a price agreed upon at the relevant Point of Sale pursuant to the applicable Placement Notice.
SCHEDULE 4
Schedule of Subsidiaries
AntriaBio Delaware, Inc.
Rezolute Bio UK, Ltd
Rezolute (Bio) Ireland Limited
SCHEDULE 5
Information Provided By Sales Agent
The parties acknowledge
and agree that, for purposes of Sections 6(b) and 9 of this Agreement, there is no information provided by the Sales Agent.
The information in
this Schedule shall be updated from time to time in connection with the filing of a new Prospectus or otherwise as necessary.
Exhibit 7(m)
OFFICER CERTIFICATE
The
undersigned, the duly qualified and appointed _____________________ of Rezolute, Inc., a Delaware corporation
(the “Company”), does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m)
of the Equity Distribution Agreement, dated December [__], 2020 (the “Equity Distribution Agreement”),
between the Company and Oppenheimer & Co. Inc., that:
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(i)
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the representations and warranties of the Company in Section 6 of the Equity Distribution
Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein
relating to materiality or Material Adverse Change, 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, except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject
to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of
the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations
and warranties that speak solely as of a specific date and which were true and correct as of such date; and;
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(ii)
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the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied pursuant to the Equity Distribution Agreement at or prior to the date hereof;
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(iii)
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as of the date hereof, (i) the Registration Statement does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading, (ii) the Prospectus does not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement
the Registration Statement or the Prospectus in order to make the statements therein not untrue or misleading for clauses (i)
and (ii) above, respectively, to be true and correct;
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(iv)
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there has been no Material Adverse Change since the date as of which information is given in the
Prospectus, as amended or supplemented;
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(v)
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the Company does not possess any material non-public information; and
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(vi)
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the aggregate offering price of the Placement Shares that may be issued and sold pursuant to the
Equity Distribution Agreement and the maximum number or amount of Placement Shares that may be sold pursuant to the Equity Distribution
Agreement have been duly authorized by the Company’s board of directors or a duly authorized committee thereof.
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Terms used herein and not defined herein
have the meanings ascribed to them in the Equity Distribution Agreement.
Exhibit 4.2
REZOLUTE, INC.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of _______, 20__
Debt Securities
Table of Contents
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Page
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article 1
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DEFINITIONS
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1
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Section 1.01
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Definitions of Terms
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1
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article 2
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ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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4
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Section 2.01
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Designation and Terms of Securities
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4
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Section 2.02
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Form of Securities and Trustee’s Certificate
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6
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Section 2.03
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Denominations: Provisions for Payment
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6
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Section 2.04
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Execution and Authentications
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7
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Section 2.05
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Registration of Transfer and Exchange
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8
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Section 2.06
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Temporary Securities
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9
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen Securities
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9
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Section 2.08
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Cancellation
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10
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Section 2.09
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Benefits of Indenture
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10
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Section 2.10
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Authenticating Agent
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10
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Section 2.11
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Global Securities
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11
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Section 2.12
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CUSIP Numbers
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11
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article 3
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REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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11
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Section 3.01
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Redemption
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11
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Section 3.02
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Notice of Redemption
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12
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Section 3.03
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Payment Upon Redemption
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12
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Section 3.04
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Sinking Fund
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13
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Section 3.05
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Satisfaction of Sinking Fund Payments with Securities
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13
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Section 3.06
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Redemption of Securities for Sinking Fund
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13
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article 4
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COVENANTS
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14
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Section 4.01
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Payment of Principal, Premium and Interest
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14
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Section 4.02
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Maintenance of Office or Agency
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14
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Section 4.03
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Paying Agents
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14
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee
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15
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article 5
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SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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15
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Section 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders
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15
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Section 5.02
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Preservation of Information; Communications With Securityholders
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15
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Section 5.03
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Reports by the Company
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15
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Section 5.04
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Reports by the Trustee
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16
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article 6
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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16
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Section 6.01
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Events of Default
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16
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee
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Section 6.03
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Application of Moneys Collected
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18
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Section 6.04
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Limitation on Suits
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19
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver
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19
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Section 6.06
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Control by Securityholders
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20
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Section 6.07
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Undertaking to Pay Costs
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20
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article 7
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CONCERNING THE TRUSTEE
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20
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Section 7.01
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Certain Duties and Responsibilities of Trustee
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20
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Section 7.02
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Certain Rights of Trustee
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21
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance or Securities
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23
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Section 7.04
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May Hold Securities
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23
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Section 7.05
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Moneys Held in Trust
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23
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Section 7.06
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Compensation and Reimbursement
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23
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Section 7.07
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Reliance on Officer’s Certificate
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24
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Section 7.08
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Disqualification; Conflicting Interests
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24
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Section 7.09
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Corporate Trustee Required; Eligibility
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24
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Section 7.10
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Resignation and Removal; Appointment of Successor
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24
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Section 7.11
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Acceptance of Appointment By Successor
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25
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Section 7.12
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Merger, Conversion, Consolidation or Succession to Business
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26
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Section 7.13
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Preferential Collection of Claims Against the Company
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26
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Section 7.14
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Notice of Default
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27
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article 8
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CONCERNING THE SECURITYHOLDERS
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27
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Section 8.01
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Evidence of Action by securityholders
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27
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Section 8.02
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Proof of Execution by Securityholders
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27
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Section 8.03
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Who May be Deemed Owners
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27
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Section 8.04
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Certain Securities Owned by Company Disregarded
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28
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Section 8.05
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Actions Binding on Future Securityholders
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28
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article 9
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SUPPLEMENTAL INDENTURES
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28
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Section 9.01
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Supplemental Indentures Without the Consent of Securityholders
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28
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Section 9.02
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Supplemental Indentures With Consent of Securityholders
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29
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Section 9.03
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Effect of Supplemental Indentures
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29
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Section 9.04
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Securities Affected by Supplemental Indentures
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30
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Section 9.05
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Execution of Supplemental Indentures
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30
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article 10
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SUCCESSOR ENTITY
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30
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Section 10.01
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Company May Consolidate, Etc.
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30
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Section 10.02
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Successor Entity Substituted
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31
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article 11
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SATISFACTION AND DISCHARGE
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31
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Section 11.01
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Satisfaction and Discharge of Indenture
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31
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Section 11.02
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Discharge of Obligations
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31
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Section 11.03
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Deposited Moneys to be Held in Trust
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32
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Section 11.04
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Payment of Moneys Held by Paying Agents
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32
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Section 11.05
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Repayment to Company
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32
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article 12
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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32
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Section 12.01
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No Recourse
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32
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article 13
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MISCELLANEOUS PROVISIONS
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33
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Section 13.01
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Effect on Successors and Assigns
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33
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Section 13.02
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Actions by Successor
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33
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Section 13.03
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Surrender of Company Powers
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33
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Section 13.04
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Notices
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33
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Section 13.05
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Governing Law; Jury Trial Waiver
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33
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Section 13.06
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Treatment of Securities as Debt
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33
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Section 13.07
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Certificates and Opinions as to Conditions Precedent
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33
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Section 13.08
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Payments on Business Days
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34
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Section 13.09
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Conflict with Trust Indenture Act
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34
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Section 13.10
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Counterparts
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34
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Section 13.11
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Separability
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34
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Section 13.12
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Compliance Certificates
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34
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Section 13.13
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U.S.A Patriot Act
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35
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Section 13.14
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Force Majeure
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35
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Section 13.15
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Table of Contents; Headings
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35
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INDENTURE
Indenture,
dated as of _______, 20__, among Rezolute, Inc., a Delaware corporation (the “Company”), and [Trustee],
as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the holders of Securities:
article
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in
this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed
by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date
of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking
institutions in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are
authorized or obligated by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
“Company”
means Rezolute, Inc., a corporation duly organized and existing under the Delaware General Corporation Law, and, subject to the
provisions of Article 10, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is located at
.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the
Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all
in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the stated maturity of the Securities, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest
on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided,
however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities
established as contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means
the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer
or any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee
of or counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization, including a government or political subdivision or an agency or
instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case
who shall have direct responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities Act”
means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the
Person or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in
accordance with the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, 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, general partners 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.
“Trustee”
means _________________________, and, subject to the provisions of Article Seven, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such
Person. The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with
respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
article
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a) 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 up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that 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 that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any
subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another
security or the method by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
(12) the
date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are payable;
(13) the
denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14) any
and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15) whether
the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16) if
applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or
exchange, which may, without limitation, include the payment of cash as well as the delivery of securities;
(17) if
other than the full 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 pursuant to Section 6.01;
(18) additions
to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19) additions
to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders
to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions
to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions
to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23) the
currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether
interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms
and conditions upon which the election may be made;
(25) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any, and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any
other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any
one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or
in any indentures supplemental hereto.
If any of the terms
of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of
such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable,
with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates
on which such interest may be payable and with different redemption dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any
series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor
and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an
Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall
be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof,
subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due upon
conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be
dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest
Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03.
Any interest on any
Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same
series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor
to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set
forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month
in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is
a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section 2.04 Execution
and Authentications.
The Securities shall
be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use
the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact that
at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer
of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not
be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature
shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee
in accordance with such written order shall authenticate and deliver such Securities.
Upon the Company’s
delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture,
the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected
in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions
precedent to the execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not
be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for
other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon surrender for
transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities
of the same series as the Security presented for a like aggregate principal amount.
All Securities presented
or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the
Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the
Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
The Company initially
appoints the Trustee as initial Security Registrar for each series of Securities.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of
less than the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The
Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all
the Outstanding Securities of the same series and ending at the close of business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase,
but not validly withdrawn, other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for
repurchase, as the case may be. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of,
this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.06 Temporary
Securities.
Pending the preparation
of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the
form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be
executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not
be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series shall
be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary
or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security
of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee
may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
In case any Security
that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security)
if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether
or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series
duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the
Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the
holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the
Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which
the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company
and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that
is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating
Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global
Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian,
retained by the Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by
a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered
in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
Section 2.12 CUSIP
Numbers.
The Company in issuing
the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
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 will promptly notify the Trustee of any change in the
“CUSIP” numbers.
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3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem
the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing,
first class postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with
the applicable procedures of the Depository), a notice of such redemption not less than 30 days and not more than 90 days before
the date fixed for redemption of that series to such holders at their last addresses as they shall appear upon the Security Register,
unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series
or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of
redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption
price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and
after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than
all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so redeemed.
In case any Security
is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest
on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion thereof.
On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest
accrued thereon to, but excluding, the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount
of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any 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 3.05. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may
deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either
at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the
terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption 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.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days
prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee),
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days 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 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
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4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly
and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at
the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal on
the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn
on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S.
dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no
later than 15 days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided
herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled
thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder
shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the
relevant payment date.
Section 4.02 Maintenance
of Office or Agency.
So long as any series
of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at
such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may
be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be given or served, such designation to continue with respect to such office or agency until the Company shall, by written
notice signed by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. 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, 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,
notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect
to the Securities.
Section 4.03 Paying
Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum 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 will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or 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 terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee,
so that there shall at all times be a Trustee hereunder.
article
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list,
in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of
such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such
other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports
by the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, 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 Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any correspondence filed with the Commission or any materials for which the Company has sought and received confidential
treatment by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have
been filed with the Trustee for purposes hereof without any further action required by the Company. For the avoidance of doubt,
a failure by the Company to file annual reports, information and other reports with the Commission within the time period prescribed
thereof by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
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 their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine
any such reports, information or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance
with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained
therein. The Trustee shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings
with the Commission on EDGAR (or any successor system) has occurred.
Section 5.04 Reports
by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief
report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
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6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4) 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 or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order 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 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series 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 that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities
of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium,
if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission
and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the
same shall have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event
of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof
or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys Collected.
Any moneys collected
by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment
of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment
of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and interest, respectively; and
THIRD: To the payment
of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(iii) such holder or holders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective
due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent
of such holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder
of every Security of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities
of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04,
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 such series; provided, however, that such direction shall
not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to
the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of,
or premium, if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this
Indenture agree, and each holder of any Securities by such holder’s 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 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 and expenses, 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 Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this Indenture.
article
7
CONCERNING
THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of 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 man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture;
(ii) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of
Securities hereunder.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise
provided in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) 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 reasonably acceptable to the Trustee against the costs, expenses and liabilities that
may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence
of an Event of Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect
to Securities of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) 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, security, or other papers or documents or inquire
as to the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security
or indemnity reasonably acceptable to the Trustee against such costs, expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances;
(i) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions,
subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the
Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative
of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the Trustee with Officer’s Certificates, Company Orders and
any other matters or directions pursuant to this Indenture.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default relating to the
failure to pay the interest on, or the principal of, the Securities) until the Trustee shall have received written notification
in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus,
or any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities
or any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any
paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with
the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon 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 by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s
agents and counsel.
(b) The
Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel)
incurred by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5),
the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith
are to constitute expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance
on Officer’s Certificate.
Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered
to the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has
or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all
times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial, or District of Columbia authority.
If such corporation
or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve
as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case,
the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment by Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to
the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money
held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall 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, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into
which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
Section 7.14 Notice
of Default.
If any Event of Default
occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event
of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that,
except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Securityholders.
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CONCERNING
THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by
such holders of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall
solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series
for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities
of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his
or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner
of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether
the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent
or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company or
any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in
Section 8.02, 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 Security
issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation
in regard thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series 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 of that series.
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9
SUPPLEMENTAL
INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any
supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The Trustee is hereby
authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders
of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution
of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect
to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board
of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of
the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not
be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an
Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution of the
supplemental indenture have been complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) transmit by mail, first class postage prepaid, a notice, setting forth in general terms
the substance of such supplemental indenture, to the Securityholders of all series affected thereby .as their names and addresses
appear upon the Security Register. Any failure of the Company to mail, or cause the mailing of, such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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10
SUCCESSOR
ENTITY
Section 10.01 Company
May Consolidate, Etc.
Nothing contained in
this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company
or its successor or successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition
(other than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
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11
SATISFACTION
AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a)
the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered
to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such
trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, 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 at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due
or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon
cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03,
7.10, 11.05 and 13.04 that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and
11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of
the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such
series.
Section 11.02 Discharge
of Obligations.
If at any time all
such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become
due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect
to such series shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06,
7.10, 11.05 and 13.04 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections
7.06 and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment
as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with
the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or
premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then
held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
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12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers
or directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
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13
MISCELLANEOUS
PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants,
stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 13.02 Actions
by Successor.
Any act or proceeding
by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company
shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise
expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be
given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited
in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as
follows: [●]. Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant
to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing
Law; Jury Trial Waiver.
This Indenture and
each Security, and any claim, controversy or dispute under or related to this Indenture or any Security, shall be governed by and
construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
EACH PARTY HERETO,
AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.
Section 13.06 Treatment
of Securities as Debt.
It is intended that
the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with
and, if requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need
be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section
314(a)(1) of the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read
such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such Person,
he has made such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may
be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.
Section 13.11 Separability.
In case any one or
more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an
officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year.
Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance under
this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe
any such Event of Default and its status.
Section 13.13 U.S.A
Patriot Act.
The parties hereto
acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in
order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section 13.14 Force
Majeure.
In no event shall the
Trustee, the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer
(software and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent
under this Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
Section 13.15 Table
of Contents; Headings.
The table of contents
and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
In
Witness Whereof, the parties hereto have caused this Indenture to be duly executed all as of the day and year first
above written.
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Rezolute, Inc.
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By:
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Name:
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Title:
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[Trustee], as Trustee
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By:
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Name:
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Title:
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Signature Page to Indenture
CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act of 1939, as Amended
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Section of Indenture
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310(a)
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7.09
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310(b)
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7.08
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7.10
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311(a)
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7.13
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311(b)
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7.13
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312(a)
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5.01
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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5.02(c)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a)
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5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03
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13.12
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314(b)
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Inapplicable
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314(c)
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13.07(a)
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314(d)
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Inapplicable
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314(e)
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13.07(b)
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314(f)
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Inapplicable
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315(a)
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7.01(a)
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7.01(b)
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315(b)
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7.14
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315(c)
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7.01
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315(d)
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7.01(b)
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315(e)
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6.07
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316(a)
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6.06
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8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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(1)
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This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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