As filed with the Securities and Exchange Commission on May 16, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Angion Biomedica Corp.
(Exact name of registrant as specified in its charter)
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Delaware
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11-3430072
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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51 Charles Lindbergh Boulevard
Uniondale, NY 11553
(415) 655-4899
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Jay Venkatesan, M.D.
President and Chief Executive Officer
51 Charles Lindbergh Boulevard
Uniondale, NY 11553
(415) 655-4899
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Kenneth L. Guernsey
Brett D. White
Anitha Anne
Cooley LLP
3 Embarcadero, 20th Floor
San Francisco, CA 94111
(415) 693-2000
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, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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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. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
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a base prospectus which covers the offering, issuance and sale of such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, and such indeterminate number of warrants to purchase common stock, preferred stock and/or debt securities, which together shall have an aggregate initial offering price not to exceed $100,000,000; and
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a prospectus covering the offering, issuance and sale by Angion Biomedica of up to a maximum aggregate offering price of $21,000,000 of Angion Biomedica’s common stock that may be offered, issued and sold from time to time under an At-the-Market Equity Offering Sales Agreement with Stifel, Nicolaus & Company, Incorporated and Virtu Americas LLC.
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus.
The prospectus relating to the At-the-Market Equity Offering Sales Agreement immediately follows the base prospectus. The common stock that may be offered, issued and sold by Angion Biomedica under the At-the-Market Equity Offering Sales Agreement prospectus is included in the $100,000,000 of securities that may be offered, issued and sold by Angion Biomedica under the base prospectus. Upon termination of the At-the-Market Equity Offering Sales Agreement, any portion of the $21,000,000 included in the At-the-Market Equity Offering Sales Agreement prospectus that is not sold pursuant to the At-the-Market Equity Offering Sales Agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares are sold under the At-the-Market Equity Offering Sales Agreement, the full $100,000,000 of securities may be sold in other offerings pursuant to the base prospectus.
The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 16, 2022
Prospectus
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, Angion Biomedica Corp. may offer and sell up to an aggregate amount of $100,000,000 of any combination of the securities described in this prospectus, either individually or in combination. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
We will provide the specific terms of these offerings and securities in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying any of the securities being offered.
Our common stock is listed on the Nasdaq Global Select Market under the trading symbol “ANGN.” On May 13, 2022, the last reported sale price of our common stock was $1.30 per share. The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on the Nasdaq Global Select Market or other securities exchange of the securities covered by the applicable prospectus supplement.
As of March 18, 2022, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $21 million, which was calculated based on 25,483,940 shares of outstanding common stock held by non-affiliates, at a price per share of $2.50. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell the securities described in this prospectus in a public primary offering with a value exceeding more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
Investing in our securities involves a high degree of risk. Before making an investment decision, you should review carefully the risks described under the heading “Risk Factors” on page 5 of this prospectus and any similar section contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by reference into this prospectus.
This prospectus may not be used to consummate a sale of securities unless accompanied by a prospectus supplement.
The securities may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. The supplements to this prospectus will provide the specific terms of the plan of distribution. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and options to purchase additional shares will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2022.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under this shelf registration statement, we may, from time to time, offer and sell, either individually or in combination, in one or more offerings, up to a total dollar amount of $100,000,000 of any combination of the securities described in this prospectus.
This prospectus provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before buying any of the securities being offered.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on the information contained in, or incorporated by reference into, this prospectus, any related prospectus supplement and in any free writing prospectus that we may authorize for use in connection with an offering. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, any related prospectus supplement and the documents incorporated by reference into this prospectus, any related prospectus supplement and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, any related prospectus supplement, the
documents incorporated by reference into this prospectus, and any free writing prospectus that we may authorize 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 to which we have referred you in the sections of this prospectus captioned “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and any related prospectus supplement and the offering of our securities in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus and any related prospectus supplement must inform themselves about, and observe any restrictions relating to, the offering of our securities and the distribution of this prospectus and any related prospectus supplement outside the United States. This prospectus and any related prospectus supplement does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus and any related prospectus supplement by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
We obtained the industry and market data in this prospectus from our own research as well as from industry and general publications, surveys and studies conducted by third parties. These data involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and elsewhere in this prospectus, any related prospectus supplement and documents incorporated by reference into this prospectus and any related prospectus supplement. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
This prospectus and any related prospectus supplement, including the information incorporated by reference into this prospectus and any related prospectus supplement, include trademarks, service marks and trade names owned by us or others. All trademarks, service marks and trade names included or incorporated by reference in this prospectus, any related prospectus supplement or any related free writing prospectus are the property of their respective owners.
PROSPECTUS SUMMARY
This summary highlights selected information appearing elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
References in this prospectus to “Angion,” “Angion Biomedica,” “the Company,” “we,” “us” and “our” refer to Angion Biomedica Corp., a Delaware corporation, and its consolidated subsidiaries, if any, unless otherwise specified.
Angion Biomedica Corp.
Overview
We are a clinical-stage biopharmaceutical company focused on the discovery, development, and commercialization of novel small molecule therapeutics to address chronic and progressive fibrotic diseases. Our goal is to transform the treatment paradigm for patients suffering from these potentially life-threatening conditions for which there are no approved medicines or where existing approved medicines have known limitations. Our lead product candidate is ANG-3070, a highly selective oral tyrosine kinase receptor inhibitor (TKI) in development as a treatment for fibrotic diseases, particularly in the kidney and lung. ANG-3070 has demonstrated activity as an anti-fibrotic agent in a variety of animal models. A Phase 1 healthy volunteer study, which was designed to support clinical development in multiple indications, demonstrated ANG-3070 has a favorable safety and PK profile, producing plasma concentrations which exceeded the levels necessary for activity in animal models of proteinuric kidney diseases. Enrollment is ongoing in “JUNIPER,” a dose-finding Phase 2 trial of ANG-3070 in primary proteinuric kidney diseases (PPKDs) and we expect to file an IND in idiopathic pulmonary fibrosis (IPF) by the end of 2022.
We continue to work with our license partner Vifor International, Ltd, (Vifor Pharma) on the process of closing out our analyses of data from the 2021 clinical trial readouts of ANG-3777, a hepatocyte growth factor (HGF) mimetic that was formerly our lead product candidate until December 2021. We do not intend to continue the clinical development plan for ANG-3777 set forth in the Vifor License, which had included a Phase 3 study for the prevention of AKI in patients undergoing cardiac surgery involving cardiopulmonary bypass who were thought to be at risk for AKI (CSA-AKI) and a Phase 4 confirmatory study in donor kidney transplant patients who were at risk for developing delayed graft function (DGF), given that we do not believe the earlier Phase 2 and Phase 3 clinical trial results in the respective indications support regulatory approval. We have no funds budgeted for additional clinical trials for ANG-3777.
We are also continuing to develop our preclinical programs. Our ROCK2 program is targeted towards the treatment of fibrotic diseases. Our CYP11B2 program is targeted towards diseases related to aldosterone synthase dysregulation.
Risks Associated with our Business
Our business is subject to numerous risks. You should read these risks before you invest in our common stock. In particular, our risks include, but are not limited to, the following:
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We are a clinical-stage biopharmaceutical company with no products approved for sale and we have not generated any product revenue to date, which makes it difficult to assess our future viability;
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To achieve our goals we will require substantial additional funding, for which capital may not be available to us on acceptable terms, or at all, and, if not so available, may require us to delay, limit, reduce or cease our clinical trials or operations;
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Product development and regulatory approval involve a lengthy and expensive process with uncertain outcomes. We cannot be certain ANG-3070 or any of our other product candidates will receive or maintain regulatory approval and, without regulatory approval, we and our collaborators will not be able to market our product candidates;
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Clinical failure can occur at any stage of clinical development, and the results of earlier clinical trials are not necessarily predictive of future results;
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Even if we successfully complete ongoing and planned clinical trials of one or more of our product candidates, the product candidates may fail for other reasons;
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Our product candidates may have undesirable side effects which may delay or halt clinical development or prevent marketing approval or, if approval is received, require them to be taken off the market, require them to include safety warnings, or otherwise limit their sales;
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If we are able to develop and obtain regulatory approval for any of our product candidates, our business will be materially harmed if we are unable to successfully commercialize such approved products;
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We currently depend on single third-party suppliers for the manufacture and supply of drug substance and potential future commercial product supplies for our product candidates, and any performance failure on the part of our supplier could delay the development and potential commercialization of our product candidates;
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We depend on third-party contractors for a substantial portion of our operations and may not be able to control their work as effectively as if we performed these functions ourselves. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may be unable to obtain regulatory approval for or commercialize our product candidates, if approved; and
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It is difficult and costly to protect our proprietary rights, and we may not be able to ensure their protection. If our patent position and potential regulatory exclusivity do not adequately protect our product candidates, others could compete against us more directly, which would harm our business, possibly materially.
Corporate Information
We were incorporated in the State of Delaware on April 6, 1998. Our corporate operations are based in San Francisco, California, our clinical development and regulatory teams are primarily located in Boston, Massachusetts, and our discovery and research programs are based in Uniondale, New York. Our principal executive offices are located at 51 Charles Lindbergh Boulevard, Uniondale, New York 11553, and our telephone number is (415) 655-4899. Our website address is www.angion.com. The information contained on, or that can be accessed through, our website will not be deemed to be incorporated by reference into this prospectus and does not constitute part of this prospectus. Our website address is included in this prospectus as an inactive textual reference only.
The Securities We May Offer
We may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in combination, up to a total dollar amount of $100,000,000, from time to time under this prospectus, together with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by market conditions at the time of any offering. We may also offer common stock, preferred stock and/or debt securities upon the exercise of warrants. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity date, if applicable;
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original issue discount, if any;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion, exercise, exchange or sinking fund terms, if any;
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conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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ranking;
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restrictive covenants, if any;
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voting or other rights, if any; and
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material or special U.S. federal income tax considerations, if any.
The applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to investors or to or through agents, underwriters or dealers. We and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the net proceeds to us.
Common Stock. We may issue shares of our common stock from time to time. The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. Subject to preferences that may be applicable to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably such dividends as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to our common stock. In this prospectus, we have summarized certain general features of the common stock under “Description of Capital Stock — Common stock.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to any common stock being offered.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the designations, voting powers, preferences and rights of the preferred stock, as well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred stock will be convertible into our common stock or exchangeable for other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that contains the terms of the series of preferred stock we are offering. In this prospectus, we have summarized certain general features of the preferred stock under “Description of Capital Stock — Preferred stock.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities. 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. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and
junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
Any debt securities issued under this prospectus will be issued under one or more documents called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities under “Description of Debt Securities.” We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. 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.
Warrants. We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or in combination with common stock, preferred stock and/or debt securities. In this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as any warrant agreements and warrant certificates that contain the terms of the warrants. We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants.
Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Use of Proceeds
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital, capital expenditures and other general corporate purposes. See “Use of Proceeds” in this prospectus.
Nasdaq Global Select Market Listing
Our common stock is listed on the Nasdaq Global Select Market under the symbol “ANGN.” The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on the Nasdaq Global Select Market or other securities exchange of the securities covered by the applicable prospectus supplement.
RISK FACTORS
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and discussed under the section entitled “Risk Factors” contained in our most recent Annual Report on Form 10-K and in our most recent Quarterly Report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering. The risks described in these documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
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the potential benefits, activity, effectiveness and safety of our product candidates;
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the success and timing of our preclinical studies and clinical trials, including the timing and availability of data from such clinical trials;
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the primary endpoints to be utilized in our clinical trials;
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the scope, progress, expansion, and costs of developing and commercializing our product candidates;
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our dependence on existing and future collaborators for commercializing product candidates in the collaboration;
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our receipt and timing of any milestone payments or royalties under any existing or future research collaboration and license agreements or arrangements;
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the potential effects of the COVID-19 pandemic on our business and operations, results of operations and financial performance;
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the potential adverse effects of any regional armed conflicts on our business and operations, results of operations and financial performance;
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the size and growth of the potential markets for our product candidates and the ability to serve those markets;
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our expectations regarding our expenses and revenue, the sufficiency of our cash resources, and needs for additional financing;
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regulatory developments in the United States and other countries;
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the rate and degree of market acceptance of any future products;
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the implementation of our business model and strategic plans for our business and product candidates, including additional indications for which we may pursue;
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our expectations regarding competition;
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our anticipated growth strategies;
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the performance of third-party manufacturers;
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our ability to establish and maintain development partnerships;
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our expectations regarding federal, state, and foreign regulatory requirements;
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our ability to obtain and maintain intellectual property protection for our product candidates;
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the successful development for our sales and marketing capabilities;
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the hiring and retention of key scientific or management personnel; and
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the anticipated trends and challenges in our business and the market in which we operate.
In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “predicts,” “potential” and similar expressions intended to identify forward-looking statements. These statements reflect our current views with respect to future events and are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail many of these risks under the heading “Risk Factors” contained in the applicable prospectus supplement, in any free writing prospectuses we may authorize for use in connection with a specific offering, and in our most recent annual report on Form 10-K and in our most recent quarterly report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. You should read this prospectus, any applicable prospectus supplement, together with the documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
USE OF PROCEEDS
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital and general corporate purposes, including research and development expenses and capital expenditures, or for any other purpose we describe in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 300,000,000 shares of common stock, $0.01 par value per share, and 10,000,000 shares of preferred stock, $0.01 par value per share. A description of material terms and provisions of our certificate of incorporation and bylaws affecting the rights of holders of our capital stock is set forth below. The description is intended as a summary, and is qualified in its entirety by reference to our certificate of incorporation and the bylaws.
Common stock
Voting Rights. Each holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. Our stockholders do not have cumulative voting rights in the election of directors. Accordingly, holders of a majority of the voting shares are able to elect all of the directors. In addition, the affirmative vote of holders of 662∕3% of the voting power of all of the then outstanding voting stock is required to take certain actions, including amending certain provisions of our amended and restated certificate of incorporation, such as the provisions relating to amending our amended and restated bylaws, the classified board and director liability.
Dividends. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation. In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights and Preferences. Holders of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that we may designate in the future.
Fully Paid and Nonassessable. All of our outstanding shares of common stock are fully paid and nonassessable.
Preferred stock
Our board of directors is authorized, subject to limitations prescribed by Delaware law, to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors can also increase or decrease the number of shares of any series, but not below the number of shares of that series then outstanding, without any further vote or action by the company’s stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, discouraging or preventing a change in control of Angion Biomedica and may adversely affect the market price of Angion Biomedica’s common stock and the voting and other rights of the holders of common stock.
We will fix the designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that contains the terms of the series of preferred stock we are offering. We will describe in the applicable prospectus supplement the terms of the series of preferred stock being offered, including, to the extent applicable:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if applicable;
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the provisions for a sinking fund, if applicable;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
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voting rights of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of material United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
Anti-Takeover Effects of Provisions of our Amended and Restated Certificate of Incorporation, our Amended and Restated Bylaws and Delaware Law
Certain provisions of Delaware law and our amended and restated certificate of incorporation and our amended and restated bylaws contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed “interested stockholders” from engaging in a “business combination” with a publicly-held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, such as discouraging takeover attempts that might result in a premium over the market price of our common stock.
Undesignated Preferred Stock
The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us. These and other provisions may have the effect of deterring hostile takeovers or delaying changes in control or management of our company.
Special Stockholder Meetings
Our amended and restated bylaws provide that a special meeting of stockholders may be called at any time by our board of directors or the chairperson of the Board of Directors or our President or Chief Executive Officer, but such special meetings may not be called by the stockholders or any other person or persons.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent
Our amended and restated certificate of incorporation and our amended and restated bylaws eliminated the right of stockholders to act by written consent without a meeting.
Classified Board; Election and Removal of Directors; Filling Vacancies
Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of our common stock outstanding will be able to elect all of our directors. Our amended and restated certificate of incorporation provides for the removal of any of our directors only for cause and requires a stockholder vote by the holders of at least a 662/3% of the voting power of the then outstanding voting stock. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of the board, may only be filled by a resolution of the board of directors unless the board of directors determines that such vacancies shall be filled by the stockholders. This system of electing and removing directors and filling vacancies may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.
Choice of Forum
Our amended and restated certificate of incorporation and amended and restated bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: any derivative action or proceeding brought on our behalf; any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers or stockholders to us or to our stockholders; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws (as either may be amended from time to time); or any action asserting a claim against us that is governed by the internal affairs doctrine. As a result, any action brought by any of our stockholders with regard to any of these matters will need to be filed in the Court of Chancery of the State of Delaware and cannot be filed in any other jurisdiction; provided that, the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction; and provided further that, if and only if the Court of Chancery of the State of Delaware dismisses any such action for lack of subject matter jurisdiction, such action may be brought in another state or federal court sitting in the State of Delaware. Our amended and restated certificate of incorporation and amended and restated bylaws also provide that the federal district courts of the United States of America will be the exclusive forum for the resolution of any complaint asserting a cause of action against us or any of our directors, officers, employees or agents and arising under the Securities Act. Nothing in our amended and restated certificate of incorporation and amended and restated bylaws preclude stockholders that assert claims under the Exchange Act from bringing such claims in state or federal court, subject to applicable law.
If any action the subject matter of which is within the scope described above is filed in a court other than a court located within the State of Delaware, or a Foreign Action, in the name of any stockholder, such stockholder shall be deemed to have consented to the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the applicable provisions of our amended and restated certificate of incorporation and amended and restated bylaws and having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder. Although our amended and restated certificate of incorporation and amended and restated bylaws contain the choice of forum provision described
above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.
This 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 any of our directors, officers, other employees or stockholders, which may discourage lawsuits with respect to such claims, although our stockholders will not be deemed to have waived our compliance with federal securities laws and the rules and regulations thereunder.
Amendment of Charter Provisions
The amendment of any of the above provisions in our amended and restated certificate of incorporation, except for the provision making it possible for our board of directors to issue undesignated preferred stock, would require approval by a stockholder vote by the holders of at least a 662/3% of the voting power of the then outstanding voting stock.
The provisions of the Delaware General Corporation Law, our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Limitation of Liability and Indemnification Matters
Our amended and restated certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
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any transaction from which the director derived an improper personal benefit.
Each of our amended and restated certificate of incorporation and amended and restated bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. Our amended and restated bylaws also obligate us to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under Delaware law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors. With specified exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damages.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s address is 1 State Street, 30th Floor, New York, New York 10004. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement related to that series.
Listing on the Nasdaq Global Select Market
Our common stock is listed on the Nasdaq Global Select Market the symbol “ANGN.” The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the Nasdaq Global Select Market or any securities market or other exchange of the preferred stock covered by such prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
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 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 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 does not limit the amount of debt securities that we may issue. It provides 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 contained in the indenture, the terms of the indenture do 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 any 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;
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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.
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.
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, 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.
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.
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
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.
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.
Discharge
Each indenture provides 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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provide for payment;
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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.
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, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
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 provides 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 can 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 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.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes 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 will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplements and in any related free writing prospectuses that we may authorize to be distributed to you, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securities and be issued in one or more series. Warrants may be offered independently or in combination with common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we have summarized below
will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that describe the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of any material or special U.S. federal income tax considerations of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we otherwise specify in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders’ consent, if ever required;
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whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
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how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
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if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under the section entitled “Special Situations When a Global Security Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
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an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
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an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security;
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we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;
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the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
•
financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate that global security; or
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if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
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, or directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
•
at prices related to such prevailing market prices; or
•
at negotiated prices.
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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the name or names of the underwriters, if any;
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the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
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, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers 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.
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.
We may authorize agents 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, 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.
All securities we may offer, other than 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.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. 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 stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters or agents that are qualified market makers on the Nasdaq Global Select Market may engage in passive market making transactions in the common stock on the Nasdaq Global Select Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. 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. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
LEGAL MATTERS
Cooley LLP will pass upon the validity of the securities offered by this prospectus, and any supplement thereto, unless otherwise indicated in the applicable prospectus supplement. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Angion Biomedica Corp. incorporated in this prospectus by reference from Angion Biomedica Corp.’s Annual Report on Form 10-K for the year ended December 31, 2021 have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their report which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information from other documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC (Commission File No. 001-39990):
•
•
•
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We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of the offering of the securities made by this prospectus, which will become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later-filed document modify or replace such earlier statements. We will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents to:
Angion Biomedica Corp.
Attn: General Counsel
51 Charles Lindbergh Boulevard
Uniondale, NY 11553
(415) 655-4899
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 16, 2022
PROSPECTUS
$21,000,000
Common Stock
We have entered into an At-the-Market Equity Offering Sales Agreement, or sales agreement, with Stifel, Nicolaus & Company, Incorporated, or Stifel, and Virtu Americas LLC, or Virtu, relating to shares of our common stock offered by this prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $21,000,000 from time to time through or to Stifel and Virtu acting as sales agent or principal.
Our common stock is listed on the Nasdaq Global Select Market under the trading symbol “ANGN.” On May 13, 2022, the last reported sale price of our common stock was $1.30 per share.
Sales of Angion Biomedica Corp. common stock, if any, under this prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. Subject to the terms of the sales agreement, Stifel and Virtu are not required to sell any specific number or dollar amounts of securities but will act as sales agents and use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Stifel and/or Virtu and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The aggregate market value of our outstanding common stock held by non-affiliates was approximately $21 million, which was calculated based on 25,483,940 shares of outstanding common stock held by non-affiliates, at a price per share of $2.50, the closing price of our common stock on March 18, 2022. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell the securities described in this prospectus in a public primary offering with a value exceeding more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
Stifel and Virtu will be entitled to compensation at a fixed commission rate of up to 3.0% of the aggregate gross sales price per share sold. In connection with the sale of our common stock on our behalf, Stifel and Virtu will be deemed to be “underwriters” within the meaning of the Securities Act and the compensation of paid to Stifel and Virtu will be deemed to be underwriting commissions or discounts.
Investing in our securities involves a high degree of risk. Before making an investment decision, you should review carefully and consider all of the information set forth in this prospectus and the documents incorporated by reference in this prospectus. See “Risk Factors” beginning on page S-4 of this prospectus and in the documents incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Stifel Virtu
The date of this prospectus is , 2022.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under the shelf registration statement we may offer shares of our common stock, preferred stock, debt securities and warrants, including common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants, having an aggregate offering price of up to $100,000,000. Under this prospectus, we may offer shares of our common stock having an aggregate offering price of up to $21,000,000 from time to time at prices and on terms to be determined by market conditions at the time of offering.
We provide information to you about this offering of shares of our common stock in this prospectus, which describes the specific details regarding this offering. If information in this prospectus is inconsistent with documents incorporated by reference in this prospectus filed prior to the date of this prospectus, you should rely on this prospectus. However, if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus — the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.
You should rely only on the information contained in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize for use in connection with this offering. We have not, and Stifel, Nicolaus & Company, Incorporated and Virtu Americas LLC have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We, Stifel and Virtu take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not, and Stifel and Virtu are not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any free writing prospectus that we may authorize 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 to which we have referred you in the sections of this prospectus captioned “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of our common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this
prospectus must inform themselves about, and observe any restrictions relating to, the offering of our common stock and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
We obtained the industry and market data in this prospectus from our own research as well as from industry and general publications, surveys and studies conducted by third parties. These data involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and elsewhere in this prospectus and documents incorporated by reference into this prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
This prospectus, including the information incorporated by reference into this prospectus, include trademarks, service marks and trade names owned by us or others. All trademarks, service marks and trade names included or incorporated by reference in this prospectus or any related free writing prospectus are the property of their respective owners.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in this prospectus and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
References in this prospectus to “Angion”, “Angion Biomedica,” “the Company,” “we”, “us” and “our” refer to Angion Biomedica Corp., a Delaware corporation, and its consolidated subsidiaries, if any, unless otherwise specified.
Angion Biomedica Corp.
Overview
We are a clinical-stage biopharmaceutical company focused on the discovery, development, and commercialization of novel small molecule therapeutics to address chronic and progressive fibrotic diseases. Our goal is to transform the treatment paradigm for patients suffering from these potentially life-threatening conditions for which there are no approved medicines or where existing approved medicines have known limitations. Our lead product candidate is ANG-3070, a highly selective oral tyrosine kinase receptor inhibitor (TKI) in development as a treatment for fibrotic diseases, particularly in the kidney and lung. ANG-3070 has demonstrated activity as an anti-fibrotic agent in a variety of animal models. A Phase 1 healthy volunteer study, which was designed to support clinical development in multiple indications, demonstrated ANG-3070 has a favorable safety and PK profile, producing plasma concentrations which exceeded the levels necessary for activity in animal models of proteinuric kidney diseases. Enrollment is ongoing in “JUNIPER,” a dose-finding Phase 2 trial of ANG-3070 in primary proteinuric kidney diseases (PPKDs) and we expect to file an IND in idiopathic pulmonary fibrosis (IPF) by the end of 2022.
We continue to work with our license partner Vifor International, Ltd, (Vifor Pharma) on the process of closing out our analyses of data from the 2021 clinical trial readouts of ANG-3777, a hepatocyte growth factor (HGF) mimetic that was formerly our lead product candidate until December 2021. We do not intend to continue the clinical development plan for ANG-3777 set forth in the Vifor License, which had included a Phase 3 study for the prevention of AKI in patients undergoing cardiac surgery involving cardiopulmonary bypass who were thought to be at risk for AKI (CSA-AKI) and a Phase 4 confirmatory study in donor kidney transplant patients who were at risk for developing delayed graft function (DGF), given that we do not believe the earlier Phase 2 and Phase 3 clinical trial results in the respective indications support regulatory approval. We have no funds budgeted for additional clinical trials for ANG-3777.
We are also continuing to develop our preclinical programs. Our ROCK2 program is targeted towards the treatment of fibrotic diseases. Our CYP11B2 program is targeted towards diseases related to aldosterone synthase dysregulation.
Risks Associated with our Business
Our business is subject to numerous risks. You should read these risks before you invest in our common stock. In particular, our risks include, but are not limited to, the following:
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We are a clinical-stage biopharmaceutical company with no products approved for sale and we have not generated any product revenue to date, which makes it difficult to assess our future viability;
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To achieve our goals we will require substantial additional funding, for which capital may not be available to us on acceptable terms, or at all, and, if not so available, may require us to delay, limit, reduce or cease our clinical trials or operations;
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Product development and regulatory approval involve a lengthy and expensive process with uncertain outcomes. We cannot be certain ANG-3070 or any of our other product candidates will receive or
maintain regulatory approval and, without regulatory approval, we and our collaborators will not be able to market our product candidates;
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Clinical failure can occur at any stage of clinical development, and the results of earlier clinical trials are not necessarily predictive of future results;
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Even if we successfully complete ongoing and planned clinical trials of one or more of our product candidates, the product candidates may fail for other reasons;
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Our product candidates may have undesirable side effects which may delay or halt clinical development or prevent marketing approval or, if approval is received, require them to be taken off the market, require them to include safety warnings, or otherwise limit their sales;
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If we are able to develop and obtain regulatory approval for any of our product candidates, our business will be materially harmed if we are unable to successfully commercialize such approved products;
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We currently depend on single third-party suppliers for the manufacture and supply of drug substance and potential future commercial product supplies for our product candidates, and any performance failure on the part of our supplier could delay the development and potential commercialization of our product candidates;
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We depend on third-party contractors for a substantial portion of our operations and may not be able to control their work as effectively as if we performed these functions ourselves. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may be unable to obtain regulatory approval for or commercialize our product candidates, if approved; and
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It is difficult and costly to protect our proprietary rights, and we may not be able to ensure their protection. If our patent position and potential regulatory exclusivity do not adequately protect our product candidates, others could compete against us more directly, which would harm our business, possibly materially.
Corporate Information
We were incorporated in the State of Delaware on April 6, 1998. Our corporate operations are based in San Francisco, California, our clinical development and regulatory teams are primarily located in Boston, Massachusetts, and our discovery and research programs are based in Uniondale, New York. Our principal executive offices are located at 51 Charles Lindbergh Boulevard, Uniondale, New York 11553, and our telephone number is (415) 655-4899. Our website address is www.angion.com. The information contained on, or that can be accessed through, our website will not be deemed to be incorporated by reference into this prospectus and does not constitute part of this prospectus. Our website address is included in this prospectus as an inactive textual reference only.
The Offering
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $21,000,000.
Common stock to be outstanding after this offering
Up to 46,112,565 shares (as more fully described in the notes following this table), assuming sales of 16,153,846 shares of our common stock in this offering at an offering price of $1.30 per share, which was the last reported sale price of our common stock on the Nasdaq Global Select Market on May 13, 2022. The actual number of shares issued will vary depending on the sales price under this offering.
“At the market offering” that may be made from time to time through or to Stifel, Nicolaus & Company, Incorporated, or Stifel, and Virtu Americas LLC, or Virtu, as sales agent or principal. See “Plan of Distribution” on page S-12.
We intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including research and development expenses and capital expenditures. See “Use of Proceeds” on page S-7.
You should read the “Risk Factors” section of this prospectus and in the documents incorporated by reference into this prospectus for a discussion of factors to consider before deciding to purchase shares of our common stock.
Nasdaq Global Select Market
Symbol
“ANGN”
The number of our shares of common stock outstanding is based on 29,958,719 shares of common stock outstanding as of March 31, 2022, and excludes the following, all as of March 31, 2022:
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5,814,847 shares of common stock issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $6.13 per share;
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202,649 shares of common stock issuable upon the exercise of outstanding restricted stock units and performance stock units; and
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up to an aggregate of 4,268,851 shares of common stock available for future grant under our 2021 Equity Incentive Plan (“2021 Plan”), and our Employee Stock Purchase Plan (the “ESPP”).
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks and uncertainties described below and discussed under the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K, and in our subsequent Quarterly Report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering. The risks described in these documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
Additional Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds from this offering, and may not use the proceeds effectively.
Because we have not designated the amount of 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 from this offering and could use them for purposes other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You may experience future dilution as a result of future equity offerings.
To raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities 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 or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
We do not intend to pay dividends in the foreseeable future.
We have never paid cash dividends on our common stock and currently do not plan to pay any cash dividends in the foreseeable future.
It is not possible to predict the aggregate proceeds resulting from sales made under the sales agreement.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to Stifel, Nicolaus & Company, Incorporated, or Stifel, and Virtu Americas LLC, or Virtu, at any time throughout the term of the At-the-Market Equity Offering Sales Agreement, or sales agreement. The number of shares that are sold through the sales agents after delivering a placement notice will fluctuate based on a number of factors, including the market price of our common stock during the sales period, any limits we may set with the sales agents in any applicable placement notice and the demand for our common stock. Because the price per share of each share sold pursuant to the sales agreement will fluctuate over time, it is not currently possible to predict the aggregate proceeds to be raised in connection with sales under the sales agreement.
Sales of common stock offered hereby will be 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 accordingly 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 number of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions we may place in any applicable placement notice delivered to the sales agents, 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.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
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the potential benefits, activity, effectiveness and safety of our product candidates;
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the success and timing of our preclinical studies and clinical trials, including the timing and availability of data from such clinical trials;
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the primary endpoints to be utilized in our clinical trials;
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the scope, progress, expansion, and costs of developing and commercializing our product candidates;
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our dependence on existing and future collaborators for commercializing product candidates in the collaboration;
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our receipt and timing of any milestone payments or royalties under any existing or future research collaboration and license agreements or arrangements;
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the potential effects of the COVID-19 pandemic on our business and operations, results of operations and financial performance;
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the potential adverse effects of any regional armed conflicts on our business and operations, results of operations and financial performance;
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the size and growth of the potential markets for our product candidates and the ability to serve those markets;
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our expectations regarding our expenses and revenue, the sufficiency of our cash resources, and needs for additional financing;
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regulatory developments in the United States and other countries;
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the rate and degree of market acceptance of any future products;
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the implementation of our business model and strategic plans for our business and product candidates, including additional indications for which we may pursue;
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our expectations regarding competition;
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our anticipated growth strategies;
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the performance of third-party manufacturers;
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our ability to establish and maintain development partnerships;
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our expectations regarding federal, state, and foreign regulatory requirements;
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our ability to obtain and maintain intellectual property protection for our product candidates;
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the successful development for our sales and marketing capabilities;
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the hiring and retention of key scientific or management personnel; and
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the anticipated trends and challenges in our business and the market in which we operate.
In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “predicts,” “potential” and similar expressions intended to identify forward-looking statements. These statements reflect our current views with respect to future events and are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail many of these risks under the heading “Risk Factors” contained in the applicable prospectus supplement, in any free writing prospectuses we may authorize for use in connection with a specific offering, and in our most recent annual report on Form 10-K and in our most recent quarterly report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new
information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. You should read this prospectus, any applicable prospectus supplement, together with the documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sales proceeds of up to $21,000,000 from time to time. Because there is no minimum offering amount required pursuant to the At-the-Market Equity Offering Sales Agreement, or sales agreement, with Stifel and Virtu, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. Actual net proceeds will depend on the number of shares we sell and the prices at which such sales occur. There can be no assurance that we will sell any shares under or fully utilize the sales agreement with Stifel and Virtu as a source of financing.
We currently intend to use the net proceeds from the sale of the common stock offered by us hereunder, if any, for working capital and general corporate purposes, including research and development expenses and capital expenditures.
The amounts and timing of our use of the net proceeds from this offering will depend on a number of factors, such as the timing and progress of our research and development efforts, the timing and progress of any partnering and commercialization efforts, technological advances and the competitive environment for our products. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from the sale of the securities offered by us hereunder. Accordingly, our management will have broad discretion in the timing and application of these proceeds. Pending application of the net proceeds as described above, we intend to temporarily invest the proceeds in short-term, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 300,000,000 shares of common stock, $0.01 par value per share, and 10,000,000 shares of preferred stock, $0.01 par value per share. A description of material terms and provisions of our certificate of incorporation and bylaws affecting the rights of holders of our capital stock is set forth below. The description is intended as a summary, and is qualified in its entirety by reference to our certificate of incorporation and the bylaws.
Common stock
Voting Rights. Each holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. Our stockholders do not have cumulative voting rights in the election of directors. Accordingly, holders of a majority of the voting shares are able to elect all of the directors. In addition, the affirmative vote of holders of 662/3% of the voting power of all of the then outstanding voting stock is required to take certain actions, including amending certain provisions of our amended and restated certificate of incorporation, such as the provisions relating to amending our amended and restated bylaws, the classified board and director liability.
Dividends. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation. In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights and Preferences. Holders of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that we may designate in the future.
Fully Paid and Nonassessable. All of our outstanding shares of common stock are fully paid and nonassessable.
Preferred stock
Our board of directors is authorized, subject to limitations prescribed by Delaware law, to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors can also increase or decrease the number of shares of any series, but not below the number of shares of that series then outstanding, without any further vote or action by the company’s stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, discouraging or preventing a change in control of Angion Biomedica and may adversely affect the market price of Angion Biomedica’s common stock and the voting and other rights of the holders of common stock.
Anti-Takeover Effects of Provisions of our Amended and Restated Certificate of Incorporation, our Amended and Restated Bylaws and Delaware Law
Certain provisions of Delaware law and our amended and restated certificate of incorporation and our amended and restated bylaws contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult
to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed “interested stockholders” from engaging in a “business combination” with a publicly-held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, such as discouraging takeover attempts that might result in a premium over the market price of our common stock.
Undesignated Preferred Stock
The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us. These and other provisions may have the effect of deterring hostile takeovers or delaying changes in control or management of our company.
Special Stockholder Meetings
Our amended and restated bylaws provide that a special meeting of stockholders may be called at any time by our board of directors or the chairperson of the Board of Directors or our President or Chief Executive Officer, but such special meetings may not be called by the stockholders or any other person or persons.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent
Our amended and restated certificate of incorporation and our amended and restated bylaws eliminated the right of stockholders to act by written consent without a meeting.
Classified Board; Election and Removal of Directors; Filling Vacancies
Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of our common stock outstanding will be able to elect all of our directors. Our amended and restated certificate of incorporation provides for the removal of any of our directors only for cause and requires a stockholder vote by the holders of at least a 662/3% of the voting power
of the then outstanding voting stock. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of the board, may only be filled by a resolution of the board of directors unless the board of directors determines that such vacancies shall be filled by the stockholders. This system of electing and removing directors and filling vacancies may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.
Choice of Forum
Our amended and restated certificate of incorporation and amended and restated bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: any derivative action or proceeding brought on our behalf; any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers or stockholders to us or to our stockholders; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws (as either may be amended from time to time); or any action asserting a claim against us that is governed by the internal affairs doctrine. As a result, any action brought by any of our stockholders with regard to any of these matters will need to be filed in the Court of Chancery of the State of Delaware and cannot be filed in any other jurisdiction; provided that, the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction; and provided further that, if and only if the Court of Chancery of the State of Delaware dismisses any such action for lack of subject matter jurisdiction, such action may be brought in another state or federal court sitting in the State of Delaware. Our amended and restated certificate of incorporation and amended and restated bylaws also provide that the federal district courts of the United States of America will be the exclusive forum for the resolution of any complaint asserting a cause of action against us or any of our directors, officers, employees or agents and arising under the Securities Act. Nothing in our amended and restated certificate of incorporation and amended and restated bylaws preclude stockholders that assert claims under the Exchange Act from bringing such claims in state or federal court, subject to applicable law.
If any action the subject matter of which is within the scope described above is filed in a court other than a court located within the State of Delaware, or a Foreign Action, in the name of any stockholder, such stockholder shall be deemed to have consented to the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the applicable provisions of our amended and restated certificate of incorporation and amended and restated bylaws and having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder. Although our amended and restated certificate of incorporation and amended and restated bylaws contain the choice of forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.
This 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 any of our directors, officers, other employees or stockholders, which may discourage lawsuits with respect to such claims, although our stockholders will not be deemed to have waived our compliance with federal securities laws and the rules and regulations thereunder.
Amendment of Charter Provisions
The amendment of any of the above provisions in our amended and restated certificate of incorporation, except for the provision making it possible for our board of directors to issue undesignated preferred stock, would require approval by a stockholder vote by the holders of at least a 662/3% of the voting power of the then outstanding voting stock.
The provisions of the Delaware General Corporation Law, our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These
provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Limitation of Liability and Indemnification Matters
Our amended and restated certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:
•
any breach of the director’s duty of loyalty to us or our stockholders;
•
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
•
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
•
any transaction from which the director derived an improper personal benefit.
Each of our amended and restated certificate of incorporation and amended and restated bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. Our amended and restated bylaws also obligate us to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under Delaware law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors. With specified exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damages.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s address is 1 State Street, 30th Floor, New York, New York 10004.
Listing on the Nasdaq Global Select Market
Our common stock is listed on the Nasdaq Global Select Market the symbol “ANGN.”
PLAN OF DISTRIBUTION
We have entered into an At-the-Market Equity Offering Sales Agreement with Stifel, Nicolaus & Company, Incorporated, or Stifel, and Virtu Americas LLC, or Virtu, under which we may issue and sell shares of our common stock having an aggregate gross sales price of up to $21,000,000 from time to time through or to Stifel and Virtu acting as agent or principal. The sales agreement has been filed as an exhibit to our Registration Statement on Form S-3 of which this prospectus forms a part.
Upon delivery of a placement notice and subject to the terms and conditions of the sales agreement, Stifel and Virtu may sell our common stock by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act. We may instruct Stifel and Virtu not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We, Stifel or Virtu may suspend the offering of common stock upon notice and subject to other conditions.
We will pay Stifel and Virtu commissions, in cash, for their services in acting as agents in the sale of our common stock. Stifel and Virtu will be entitled to compensation at a fixed commission rate of up to 3.0% of the aggregate gross sales price per share sold. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. We have also agreed to reimburse Stifel and Virtu for certain specified fees and documented expenses, including the fees and documented expenses of their legal counsel in an amount not to exceed $60,000, as provided in the sales agreement, as well as certain ongoing disbursements of their legal counsel of up to $5,000 per calendar quarter. We estimate that the total expenses for the offering, excluding compensation and reimbursements payable to Stifel and Virtu under the terms of the sales agreement, will be approximately $90,000.
Settlement for sales of common stock will occur on the second trading day following the date on which any sales are made, or on some other date that is agreed upon by us and the sales agents in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and the sales agents may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement. Each of Stifel and Virtu will use its commercially reasonable efforts consistent with its normal trading and sales practices, to solicit offers to purchase the common stock shares under the terms and subject to the conditions set forth in the sales agreement. In connection with the sale of the common stock on our behalf, the sales agents may be deemed to be “underwriters” within the meaning of the Securities Act and the compensation of such sales agents may be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to the sales agents against certain civil liabilities, including liabilities under the Securities Act.
The offering of our common stock pursuant to the sales agreement will terminate as permitted therein. We, Stifel and Virtu may each terminate the sales agreement at any time upon ten days’ prior notice.
Stifel and Virtu and their respective affiliates, may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M, Stifel and Virtu will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus.
This prospectus in electronic format may be made available on websites maintained by Stifel and Virtu, and Stifel and Virtu may distribute this prospectus electronically.
LEGAL MATTERS
Cooley LLP has passed upon the validity of the shares of our common stock offered hereby. Stifel and Virtu are being represented by Duane Morris LLP, New York, New York in connection with the offering.
EXPERTS
The consolidated financial statements of Angion Biomedica Corp. incorporated in this prospectus from Angion Biomedica Corp.’s Annual Report on Form 10-K for the year ended December 31, 2021 have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information from other documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC (Commission File No. 001-39990):
•
•
•
•
We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of the offering of the securities made by this prospectus, which will become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later-filed document modify or replace such earlier statements. We will furnish
without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents to:
Angion Biomedica Corp.
Attn: General Counsel
51 Charles Lindbergh Boulevard
Uniondale, NY 11553
(415) 655-4899
Up to $21,000,000
Common Stock
PROSPECTUS
Stifel Virtu
, 2022
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of the fees and expenses, other than the underwriting discounts and commissions, payable by the registrant in connection with the issuance and distribution of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
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Amount
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SEC registration fee
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|
$ |
25,960 |
|
|
|
The Nasdaq Stock Market listing fee
|
|
|
|
|
*
|
|
|
|
FINRA filing fee
|
|
|
|
|
15,500 |
|
|
|
Accounting fees and expenses
|
|
|
|
|
*
|
|
|
|
Legal fees and expenses
|
|
|
|
|
*
|
|
|
|
Transfer agent and registrar fees and expenses
|
|
|
|
|
*
|
|
|
|
Printing and miscellaneous fees and expenses
|
|
|
|
|
*
|
|
|
|
Total
|
|
|
|
$ |
*
|
|
|
*
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
As permitted by Section 102 of the Delaware General Corporation Law, we have adopted provisions in our amended and restated certificate of incorporation and amended and restated bylaws that will limit or eliminate the personal liability of our directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
•
any breach of the director’s duty of loyalty to us or our stockholders;
•
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
•
any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
•
any transaction from which the director derived an improper personal benefit.
These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our amended and restated certificate of incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the Delaware General Corporation Law, our amended and restated bylaws provide that:
•
we shall indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;
•
we may indemnify our employees and agents to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;
•
we shall advance expenses to our directors and officers and may advance expenses of our employees and agents in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and
•
the rights provided in our amended and restated bylaws are not exclusive.
Our amended and restated certificate of incorporation and our amended and restated bylaws provide for the indemnification provisions described above and elsewhere herein. We have entered into separate indemnification agreements with our directors and officers which may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among other things, to indemnify our officers and directors against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified. In addition, we have purchased a policy of directors’ and officers’ liability insurance that insures our directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended (the Securities Act).
The underwriting agreement that Angion Biomedica may enter into (Exhibit 1.1) may provide for indemnification by any underwriters of Angion Biomedica, its directors, its officers who sign the registration statement and Angion Biomedica’s controlling persons for some liabilities, including liabilities arising under the Securities Act.
The At-the-Market Equity Offering Sales Agreement that Angion Biomedica has entered into (Exhibit 1.2) provides for indemnification by the sales agents of Angion Biomedica, its directors, its officers who sign the registration statement and Angion Biomedica’s controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits
EXHIBIT INDEX
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Incorporation by Reference
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Exhibit
Number
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Exhibit Description
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Form
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File Number
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Exhibit/Appendix
Reference
|
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Filing Date
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|
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Filed
Herewith
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1.1*
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Form of Underwriting Agreement.
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1.2
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At-the-Market Equity Offering Sales Agreement, dated May 16, 2022, among the registrant, Stifel, Nicolaus & Company, Incorporated, and Virtu Americas LLC
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|
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|
|
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|
|
X
|
|
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3.1
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8-K
|
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|
001-39990
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3.1
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2/9/2021
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3.3
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8-K
|
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001-39990
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3.2
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2/9/2021
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4.1
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Reference is made to Exhibits 3.1 and 3.2.
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4.1*
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Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock
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4.2
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|
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X
|
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4.3*
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Form of Debt Securities
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4.4
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|
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X
|
|
| |
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Incorporation by Reference
|
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Exhibit
Number
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Exhibit Description
|
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Form
|
|
|
File Number
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Exhibit/Appendix
Reference
|
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Filing Date
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Filed
Herewith
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4.5
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X
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4.6
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X
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5.1
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X
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23.1
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X
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23.3
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X
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24.1
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X
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25.1*
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Statement of Eligibility of Trustee under the Debt Indenture
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107
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*
To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the 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
(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 (1)(i), (1)(ii) and (1)(iii) 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 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.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That, for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus 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.
(8) 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.
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Park City in the State of Utah, on May 16, 2022.
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Angion Biomedica Corp.
|
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By:
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/s/ Jay R. Venkatesan
Jay R. Venkatesan, M.D.
President and Chief Executive Officer
|
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jay Venkatesan, M.D. and Jennifer J. Rhodes, and each of them, as true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for them and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, and generally to do all such things in their names and behalf in their capacities as officers and directors to enable the Angion Biomedica Corp. to comply with the provisions of the Securities Act of 1933 and all requirements of the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signatures
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Title
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Date
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/s/ Jay R. Venkatesan
Jay R. Venkatesan, M.D.
|
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|
President, Chief Executive Officer, Chairman and Director
(Principal Executive Officer)
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|
May 16, 2022
|
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| |
/s/ Gregory S. Curhan
Gregory S. Curhan
|
|
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
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|
May 16, 2022
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| |
/s/ Itzhak D. Goldberg
Itzhak D. Goldberg, M.D.
|
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Director
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|
May 16, 2022
|
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| |
/s/ Victor F. Ganzi
Victor F. Ganzi
|
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Director
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|
May 16, 2022
|
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| |
/s/ Allen R. Nissenson
Allen R. Nissenson, M.D.
|
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Director
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|
May 16, 2022
|
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| |
/s/ Gilbert S. Omenn
Gilbert S. Omenn, M.D., Ph.D.
|
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Director
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May 16, 2022
|
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| |
/s/ Karen Wilson
Karen Wilson
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Director
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May 16, 2022
|
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Exhibit 1.2
ANGION BIOMEDICA CORP.
Common Stock
($0.01 par value per share)
AT-THE-MARKET EQUITY OFFERING SALES AGREEMENT
May 16, 2022
STIFEL, NICOLAUS & COMPANY, INCORPORATED
One South Street, 15th Floor
Baltimore, Maryland 21202
VIRTU AMERICAS LLC
1633 Broadway
New York, NY 10019
Ladies and Gentlemen:
Angion Biomedica Corp., a Delaware corporation
(the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time to
or through Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”) and Virtu Americas LLC (“Virtu”; each
an “Agent” and together the “Agents”) as sales agents and/or principal, shares (the “Shares”)
of the Company’s common stock, $0.01 par value per share (the “Common Stock”), having an aggregate offering
price of up to $21,000,000 on the terms set forth in Section 2 of this At-The-Market Equity Offering Sales Agreement (the “Agreement”).
The Company agrees that whenever it determines to sell Shares directly to an Agent as principal, it will enter into a separate agreement
with such Agent (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance
with Section 3 of this Agreement.
Section 1. Representations and Warranties.
The Company represents and warrants to the Agents that as of the date of this Agreement, any applicable Registration Statement Amendment
Date (as defined in Section 3 below), each Company Periodic Report Date (as defined in Section 3 below), each Applicable Time (as defined
in Section 1(c) below) and each Settlement Date (as defined in Section 2 below):
(a) Compliance
with Registration Requirements. The Company shall file or has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement under the Securities Act of 1933, as amended (the “1933
Act”), on Form S-3 in respect of the Company’s Common Stock (including the Shares) (collectively, the
“Securities”); prior to the sale of Shares such registration statement, and any post-effective amendment thereto,
shall have become effective; and no stop order suspending the effectiveness of such registration statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by the
Commission (the prospectus specifically relating to the Shares filed or to be as part of such registration statement, in the form in
which it has most recently been filed with the Commission, is hereinafter called the “ATM Prospectus”; the
various parts of such registration statement, including all exhibits thereto and any prospectus supplement relating to the Shares
that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at
the time such part of the registration statement became effective, including any post-effective amendments thereto, are hereinafter
collectively called the “Registration Statement”; the ATM Prospectus, together with any prospectus supplement
specifically relating to the Shares prepared and filed with the Commission pursuant to Rule 424(b) under the 1933 Act, is
hereinafter called the “Prospectus”; any reference herein to the ATM Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act; any
reference to any amendment or supplement to the ATM Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the 1933 Act and any documents filed under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and the rules and regulations of the Commission thereunder (the “1934 Act
Regulations”), and incorporated therein, in each case after the date of the ATM Prospectus or the Prospectus, as the case
may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is hereinafter called an “Issuer Free
Writing Prospectus”.
No order preventing or suspending the use of the
ATM Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the ATM Prospectus and the
Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder (the “1933 Act Regulations”) and did not contain 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 under which they were made,
not misleading.
For the purposes of this Agreement, the “Applicable
Time” means, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement; the Prospectus and the
applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together (collectively, and, with respect
to any Shares, together with the public offering price of such Shares, the “General Disclosure Package”) as of each
Applicable Time and each Settlement Date, will not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each
applicable Issuer Free Writing Prospectus will not conflict with the information contained in the Registration Statement or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of such Applicable
Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(b) Incorporation
of Documents by Reference. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and
the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations, and, when read together with the other information in the Prospectus, (a)
at the time the Registration Statement became effective, (b) at the time the Prospectus was issued and (c) on the date of this Agreement,
did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) Independent
Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement
are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(d) Financial
Statements. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial
position of the Company and its consolidated Subsidiaries (as defined below) at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present
fairly, in all material respects, in accordance with GAAP the information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectus, if any, present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by
reference in the Registration Statement. The pro forma financial statements and the related notes thereto included in the
Registration Statement, the General Disclosure Package and the Prospectus, if any, present fairly the information shown therein,
have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All
disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, or incorporated by reference
therein, regarding “non- GAAP financial measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the 1934 Act and Item 10(e) of Regulation S-K of the 1933 Act, to the extent applicable.
(e) No
Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the
General Disclosure Package or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change,
or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company
or any of its Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(f) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its organization and has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(g) Good
Standing of Subsidiaries. Each subsidiary of the Company (each a “Subsidiary” and, collectively, the “Subsidiaries”),
if any, has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement,
all of the issued and outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive
or similar rights of any securityholder of such Subsidiary. The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the
most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1 by Item 601 of Regulation
S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most recently ended fiscal year.
(h) Capitalization.
The shares of issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation of the preemptive or other similar rights of any securityholder
of the Company. The Company’s Common Stock has been registered pursuant to Section 12(b) of the 1934 Act and is listed on The Nasdaq
Stock Market (“Nasdaq”), and the Company has taken no action designed to, or likely to have the effect of, terminating
the registration or listing of the Common Stock from Nasdaq, nor has the Company received any notification that the Commission or Nasdaq
is contemplating terminating such registration or listing.
(i) Authorization
of Agreements. This Agreement and any Terms Agreement have been duly authorized by the Company. This Agreement has been, and any Terms
Agreement will be, executed and delivered by the Company.
(j) Authorization
and Description of Shares. The Shares have been duly authorized and reserved for issuance and sale pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement or any Terms Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same; no
holder of the Shares will be subject to personal liability by reason of being such a holder; and the issuance of the Shares is not
subject to the preemptive or other similar rights of any securityholder of the Company.
(k) Absence
of Defaults and Conflicts. (a) Neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject
(collectively, “Agreements and Instruments”); (b)(i) and the execution, delivery and performance of this Agreement
or of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration
Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus
under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments,
(ii) nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary, (iii)
nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, including the U.S. Food and Drug Administration (the “FDA”),
having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (each, a “Governmental
Entity”). As used herein, a “Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.
(l) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s
principal suppliers, manufacturers, customers or contractors.
(m) Absence
of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary,
which is required to be disclosed in the Registration Statement or the Prospectus (other than as disclosed therein), or which would reasonably
be expected to result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement or any Terms Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective property or assets is the subject which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(n) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus
or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(o) Possession
of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of
its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its Subsidiaries therein.
(p) FDA
Compliance. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company and
its subsidiaries: (A) are and at all times have been in full compliance with all statutes, rules, regulations, or guidance applicable
to the Company and its subsidiaries and the ownership, testing, research, design, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or
distributed by the Company (“Applicable Laws”), except where such non-compliance would not result, singly or in the
aggregate, in a Material Adverse Effect; (B) have not received any FDA Form 483, notice of adverse finding, warning letter, untitled
letter or other correspondence or notice from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws or
any licenses, certificates, approvals, clearances, authorizations, registrations, permits and supplements or amendments thereto required
by any such Applicable Laws (“Authorizations”) which has not been remedied by the Company and its subsidiaries or except
where such noncompliance if not remedied would not, singly or in the aggregate, result in a Material Adverse Effect; (C) possess all Authorizations
and such Authorizations are valid and in full force and effect and the Company is 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 Entity 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 Entity or third party is considering any such claim, litigation, arbitration,
action, suit, investigation or proceeding; (E) have not received notice that any Governmental Entity has taken, is taking or intends to
take action to limit, suspend, modify or revoke any Authorizations and the Company has no knowledge that any such Governmental Entity
is considering such action; and (F) have filed, obtained, maintained or submitted all 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 in all material
respects on the date filed (or were corrected or supplemented by a subsequent submission), except where the failure to file, obtain, maintain
or submit such documents would not result in a Material Adverse Effect.
(q) Clinical
Studies. The studies, tests and preclinical and clinical trials conducted by or on behalf of the Company and its subsidiaries that
are material to the Company and its subsidiaries taken as a whole were and, if still pending, are, in all material respects, being conducted
in accordance with experimental protocols, procedures and controls pursuant to accepted professional and scientific standards and all
Applicable Laws and Authorizations, including, without limitation, the Federal Food, Drug and Cosmetic Act and implementing regulations
at 21 C.F.R. Parts 50, 54, 56, 58 and 812; the approved Investigational Device Exemption applications, and other applicable federal, state,
local or foreign government or regulatory requirements, and the rules, regulations, requirements, and guidelines regarding human subject
protections; the descriptions of the results of such studies, tests and trials contained in the Registration Statement, the General Disclosure
Package and the Prospectus are accurate and complete in all material respects and fairly present the data derived from such studies, tests
and trials; except to the extent disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company
is not aware of any studies, tests or trials the results of which the Company believes reasonably call into question the study, test,
or trial results described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus when viewed
in the context in which such results are described and the clinical state of development; and neither the Company nor any of its subsidiaries
have received any notices or correspondence from any Governmental Entity requiring the termination, suspension or material modification
of any studies, tests or preclinical or clinical trials conducted or being conducted by or on behalf of the Company or any of its subsidiaries
that are material to the Company and its subsidiaries taken as a whole.
(r) Manufacturing
Practices. All manufacturing operations performed by or on behalf of the Company and its subsidiaries are being conducted in all material
respects in compliance with the Quality System regulation of the FDA and, to the extent applicable, counterpart regulations in the European
Union and all other countries where compliance is required. The Company and its subsidiaries are in compliance in all material respects
with all reporting requirements under Applicable Laws, including, but not limited to, medical device reports (as defined by 21 C.F.R.
Part 803), reports of corrections and removals (as defined by 21 C.F.R. Part 806), and the reporting and recordkeeping requirements under
the Quality System regulation of the FDA, and counterpart regulations and requirements in other countries where compliance is required.
(s) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement or any Terms Agreement, except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws.
(t) Absence of Manipulation. Neither
the Company nor any affiliate of the Company has taken, nor will the Company take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares.
(u) Possession
of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses; all of the Governmental Licenses are valid and in full force and effect; and neither the
Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental
Licenses.
(v) Title
to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by the Company and its Subsidiaries
and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company
or any of its Subsidiaries; and all of the leases and subleases material to the business of the Company and its Subsidiaries, considered
as one enterprise, and under which the Company or any of its Subsidiaries holds properties described in the Prospectus, are in full force
and effect, and neither the Company nor any Subsidiary has any notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
(w) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Shares as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be required, to register as an “investment company”
within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”).
(x) Environmental
Laws. Except as described in the Prospectus, (A) neither the Company nor any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health,
the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its Subsidiaries have
all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its
Subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company
or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(y) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the 1933 Act which have not been waived with respect to the
filing of the Registration Statement and the Prospectus and the sale of the Shares.
(z) Accounting
Controls and Disclosure Controls. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Prospectus, since the end of the Company’s most recent audited fiscal year, there
has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2)
no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
The Company and its consolidated Subsidiaries employ
disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(aa) S-3
Eligibility. (A)(i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, or an incorporated
report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), the Company met the then applicable requirements
for use of Form S-3 under the 1933 Act and (B) at the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act) of the Shares, the Company
was not an “ineligible issuer” as defined in Rule 405 under the 1933 Act.
(bb) No
Commissions. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person
(other than as contemplated by this Agreement or any Terms Agreement) that would give rise to a valid claim against the Company or any
of its Subsidiaries or the Agents for a brokerage commission, finder’s fee or like payment in connection with the offering and sale
of the Shares.
(cc) Deemed
Representation. Any certificate signed by any officer of the Company delivered to the Agents or to counsel for the Agents pursuant
to or in connection with this Agreement or any Terms Agreement shall be deemed a representation and warranty hereunder by the Company
to the Agents as to the matters covered thereby as of the date or dates indicated in such certificate.
(dd) Compliance with the 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 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
(ee) Payment
of Taxes. All United States federal income tax returns of the Company and its Subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The United States
federal income tax returns of the Company through the fiscal year ended December 31, 2020 have been settled and no assessment in
connection therewith has been made against the Company. The Company and its Subsidiaries have filed all other tax returns that are
required to have been filed by them pursuant to applicable foreign, state, local or other law and have 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
not yet due or are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are
adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined.
(ff) Insurance. The Company and its Subsidiaries
carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks
as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full
force and effect. The Company has no reason to believe that it or any Subsidiary will not be able (A) to renew its existing insurance
coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of the Company nor
any Subsidiary has been denied any insurance coverage which it has sought or for which it has applied.
(gg) Statistical and Market-Related Data.
Any statistical and market-related data included in the Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources that the Company believes to be reliable and accurate, and, where required, the Company has obtained
the written consent to the use of such data from such sources.
(hh) Foreign Corrupt Practices Act. Neither
the Company nor, 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 (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 and the Company and, to the knowledge
of the Company, its affiliates have conducted their 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.
(ii) Money
Laundering Laws. The operations of the Company 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 with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(jj) OFAC.
Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person acting on behalf
of the Company 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.
Section 2. Sale and Delivery of Shares.
(a) Subject
to the terms and conditions set forth herein, the Company agrees to issue and sell exclusively through an Agent (the “Designated
Agent”) acting as sales agent or directly to an Agent acting as principal from time to time, and the Designated Agent agrees to
use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through a Designated
Agent acting as sales agent or directly to the Designated Agent acting as principal shall be made in transactions that are deemed to be
“at the market offerings” as defined in Rule 415 under the 1933 Act.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Designated Agent on that trading day
(other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time, each, a “Trading Day”)
that the Company has satisfied its obligations under Section 6 of this Agreement and that the Company has instructed the Designated Agent
to make such sales. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders
of the Company or its Subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which
such Designated Agent is acting for the Company in a capacity other than as Designated Agent under this Agreement. On any Trading Day,
the Company may instruct the Designated Agent by telephone (confirmed promptly by telecopy or email by any of the individuals from the
Company set forth on Schedule 1 and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule 1, which
confirmation will be promptly acknowledged by the Designated Agent) as to the maximum number of Shares to be sold by the Designated Agent
on such day (in any event not in excess of the number available for issuance under the Prospectus and the currently effective Registration
Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Designated
Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company
and the Designated Agent each acknowledge and agree that (A) there can be no assurance that the Designated Agent will be successful in
selling the Shares, (B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if they
do not sell Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement, and (C) the
Designated Agent shall be under no obligation to purchase Shares on a principal basis except as otherwise specifically agreed by each
of the Designated Agent and the Company pursuant to a Terms Agreement. In the event of a conflict between the terms of this Agreement
and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(c) Notwithstanding the foregoing, the Company shall
not authorize the issuance and sale of, and the Designated Agent as sales agent shall not be obligated to use its commercially reasonable
efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in
excess of the number of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s
board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing. In addition, the Company
may, upon notice to the Designated Agent, suspend the offering of the Shares or the Designated Agent may, upon notice to the Company,
suspend the offering of the Shares with respect to which the Designated Agent is acting as sales agent for any reason and at any time;
provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations
with respect to the Shares sold hereunder prior to the giving of such notice. Any notice given pursuant to the preceding sentence may
be given by telephone by any of the individuals from the Company set forth on Schedule 1 (confirmed promptly by telecopy or email and
shall be addressed to each of the individuals from the Agents set forth on Schedule 1, which confirmation will be promptly acknowledged).
(d) The gross sales price of any Shares sold pursuant
to this Agreement by the Designated Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale
for shares of the Company’s Common Stock sold by the Designated Agent on Nasdaq or otherwise, at prices relating to prevailing market
prices or at negotiated prices. The compensation payable to the Designated Agent for sales of Shares with respect to which the Designated
Agent acts as sales agent shall be up to 3.0% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement.
The Company may sell Shares to an Agent, acting as principal, at a price agreed upon with such Agent at the relevant Applicable Time and
pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental,
regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares
(the “Net Proceeds”). Such Agent shall notify the Company as promptly as practicable if any deduction referenced in
the preceding sentence will be required.
(e) If acting as a sales agent hereunder, the Designated
Agent shall provide written confirmation to the Company following the close of trading on Nasdaq, each day in which Shares are sold under
this Agreement setting forth the number of Shares sold on such day, the aggregate gross sales proceeds of the Shares, the Net Proceeds
to the Company and the compensation payable by the Company to such Designated Agent with respect to such sales.
(f) Under no circumstances shall the aggregate offering
price or number, as the case may be, of Shares sold pursuant to this Agreement and any Terms Agreement exceed the aggregate offering price
or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for
issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued
and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof,
and notified to the Designated Agent in writing. In addition, under no circumstances shall any Shares with respect to which the Designated
Agent acts as sales agent be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s
board of directors, or a duly authorized committee thereof, and notified to the Designated Agent in writing.
(g) Settlement
for sales of Shares pursuant to this Section 2 will occur on the second business day that is also a Trading Day following the trade date
on which such sales are made, unless another date shall be agreed to by the Company and the Designated Agent (each such day, a “Settlement
Date”). On each Settlement Date, the Shares sold through the Designated Agent for settlement on such date shall be delivered
by the Company to the Designated Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall
be effected by book-entry delivery of Shares to the Designated Agent’s account at The Depository Trust Company against payments
by the Designated Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to an account designated by the Company.
If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the
Designated Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the
Designated Agent any commission to which it would otherwise be entitled absent such default.
(h) Notwithstanding
any other provision of this Agreement, the Company and the Designated Agent agree that the Designated Agent shall not be obligated to
sell Shares during any period in which the Company’s insider trading policy, as it exists on the date of the Agreement, would prohibit
the purchases or sales of the Company’s Common Stock by its officers or directors, or during any other period in which the Company
is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company
and the Designated Agent, for purposes of this paragraph (i) such period shall be deemed to end on the date on which the Company’s
next subsequent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is filed with the Commission.
(i) At each
Applicable Time, Settlement Date, Registration Statement Amendment Date and each Company Periodic Report Date, the Company shall be deemed
to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Designated Agent to use its commercially
reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations
and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction
of the additional conditions specified in Section 6 of this Agreement.
Section 3. Covenants. The Company agrees
with the Agents:
(a) During
any period when the delivery of a prospectus is required in connection with the offering or sale of Shares (whether physically or
through compliance with Rule 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act), (i) to make no
further amendment or any supplement to the Registration Statement or the Prospectus prior to any Settlement Date which shall be
disapproved by the Agents promptly after reasonable notice thereof and to advise the Agents, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish the Agents with copies thereof, (ii) to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the 1933 Act, (iii) to file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, (iv) to advise the Agents, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or other prospectus
in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the form of the Registration Statement or the Prospectus or for additional information, and (v) in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of the Prospectus in respect of the Shares or
suspending any such qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal of such order; and
in the event of any such issuance of a notice of objection, promptly to take such reasonable steps as may be necessary to permit
offers and sales of the Shares by the Agents, which may include, without limitation, amending the Registration Statement or filing a
new registration statement, at the Company’s expense (references herein to the Registration Statement shall include any such
amendment or new registration statement).
(b) Promptly
from time to time to take such action as the Agents may reasonably request to qualify the Shares for offering and sale under the securities
laws of such jurisdictions as the Agents may request and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the sale of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
and to promptly advise the Agents of the receipt by the Company of any notification with respect to the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(c) During
any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof,
a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Shares, the Company will make available
to the Agents, as soon as practicable after the execution of this Agreement, and thereafter from time to time furnish to the Agents, copies
of the most recent Prospectus in such quantities and at such locations as the Agents may reasonably request for the purposes contemplated
by the 1933 Act. During any period when the delivery of a prospectus is required (whether physically or through compliance with Rules
153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Shares,
and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by
reference in the Prospectus in order to comply with the 1933 Act or the 1934 Act, to notify the Agents and to file such document and to
prepare and furnish without charge to the Agents as many written and electronic copies as the Agents may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(d) To
make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the 1933 Act), an earnings statement of the Company and its Subsidiaries
(which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(e) To
pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1) under the 1933 Act without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act.
(f) To
use the Net Proceeds received by it from the sale of the Shares pursuant to this Agreement and any Terms Agreement in the manner specified
in the General Disclosure Package.
(g) In
connection with the offering and sale of the Shares, the Company will file with Nasdaq all documents and notices, and make all certifications,
required by Nasdaq of companies that have securities that are listed or quoted on Nasdaq and will maintain such listings or quotations.
(h) To
not take, directly or indirectly, and to cause its affiliates to refrain from taking, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the
price of any securities of the Company to facilitate the sale or resale of the Shares.
(i) At
each Applicable Time, each Settlement Date, each Registration Statement Amendment Date (as defined below), each Company Periodic Report
Date (as defined below) and each date on which Shares are delivered to an Agent pursuant to a Terms Agreement, the Company shall be deemed
to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement or any Terms Agreement. In each
Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed by the Company in respect of any quarter in which sales of Shares were
made by or through the Agents under this Agreement or any Terms Agreement (each date on which any such document is filed, and any date
on which an amendment to any such document is filed, a “Company Periodic Report Date”), the Company shall set forth
with regard to such quarter the number of Shares sold through the Agents under this Agreement or any Terms Agreement and the Net Proceeds
received by the Company with respect to sales of Shares pursuant to this Agreement or any Terms Agreement.
(j) Upon
commencement of the offering of Shares under this Agreement and each time the Shares are delivered to an Agent as principal on a Settlement
Date and promptly after each (i) date the Registration Statement or the Prospectus shall be amended or supplemented (other than (1) by
an amendment or supplement providing solely for the determination of the terms of the Shares, (2) in connection with the filing of a prospectus
supplement that contains solely the information set forth in Section 3(i), (3) in connection with the filing of any current reports on
Form 8-K (other than any current reports on Form 8-K which contain financial statements, supporting schedules or other financial data,
including any current report on Form 8-K under Item 2.02 of such form that is considered “filed” under the 1934 Act) or (4)
by a prospectus supplement relating to the offering of other securities (including, without limitation, other shares of Common Stock))
(each such date, a “Registration Statement Amendment Date”) and (ii) Company Periodic Report Date, the Company will
furnish or cause to be furnished forthwith to the Agents a certificate dated the date of effectiveness of such amendment or the date of
filing with the Commission of such supplement or other document, as the case may be, in a form reasonably satisfactory to the Agents to
the effect that the statements contained in the certificate referred to in Section 6(f) of this Agreement which were last furnished to
the Agents are true and correct at the time of such amendment, supplement or filing, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration Statement, the General Disclosure Package and the Prospectus
as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred
to in said Section 6(f), but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented,
or to the document incorporated by reference into the Prospectus, to the time of delivery of such certificate. As used in this paragraph,
to the extent there shall be an Applicable Time on or following the date referred to in clause (i) or (ii) above, promptly shall be deemed
to be on or prior to the next succeeding Applicable Time.
(k) Upon
commencement of the offering of Shares under this Agreement and each time the Shares are delivered to an Agent as principal on a Settlement
Date, and promptly after each (i) Registration Statement Amendment Date and (ii) Company Periodic Report Date, the Company will furnish
or cause to be furnished to the Agents and to counsel to the Agents the written opinion and letter of Cooley LLP, or other counsel reasonably
satisfactory to the Agents, dated the date of effectiveness of such amendment or the date of filing with the Commission of such supplement
or other document, as the case may be, in a form and substance reasonably satisfactory to the Agents and their counsel, of the same tenor
as the opinions and letters referred to in Section 6(c) of this Agreement, but modified as necessary to relate to the Registration Statement,
the General Disclosure Package and the Prospectus as amended and supplemented, or to the document incorporated by reference into the Prospectus,
to the time of delivery of such opinion and letter or, in lieu of such opinion and letter, counsel last furnishing such letter to the
Agents shall furnish the Agents with a letter substantially to the effect that the Agents may rely on such last opinion and letter to
the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last letter shall
be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance). As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to
in clause (i) or (ii) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time.
(l) Upon
commencement of the offering of Shares under this Agreement and each time the Shares are delivered to an Agent as principal on a
Settlement Date, and promptly after each (i) Registration Statement Amendment Date and (ii) Company Periodic Report Date, the
Company will cause Moss Adams LLP, or other independent accountants reasonably satisfactory to the Agents, to furnish to the Agents
a letter, dated the date of effectiveness of such amendment or the date of filing of such supplement or other document with the
Commission, as the case may be, in form reasonably satisfactory to the Agents and their counsel, of the same tenor as the letter
referred to in Section 6(e) hereof, but modified as necessary to relate to the Registration Statement, the General Disclosure
Package and the Prospectus, as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the
date of such letter. As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to
in clause (i) or (ii) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time.
(m) The
Company consents to each Agent trading in the Company’s Common Stock for such Agent’s own account and for the account of its
clients at the same time as sales of Shares occur pursuant to this Agreement or any Terms Agreement.
(n) [Reserved]
(o) The
Company will cooperate timely with any reasonable due diligence review conducted by the Agents or their counsel from time to time in connection
with the transactions contemplated hereby or in any Terms Agreement, including, without limitation, and upon reasonable notice providing
information and making available documents and appropriate corporate officers, during regular business hours and at the Company’s
principal offices, as the Agents may reasonably request.
(p) The
Company will not, without giving the Agents at least two business days’ prior written notice specifying the nature of the proposed
sale and the date of such proposed sale, (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for or
repayable with Common Stock, or file any registration statement under the 1933 Act with respect to any of the foregoing (other than a
shelf registration statement under Rule 415 under the 1933 Act, a registration statement on Form S-8 or post-effective amendment to the
Registration Statement) or (B) enter into any swap or other agreement or any transaction that transfers in whole or in part, directly
or indirectly, any of the economic consequence of ownership of the Common Stock, or any securities convertible into or exchangeable or
exercisable for or repayable with Common Stock, whether any such swap or transaction described in clause (A) or (B) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (y) the Shares to
be offered and sold through the Agents pursuant to this Agreement or any Terms Agreement and (z) equity incentive awards approved by the
board of directors of the Company or the compensation committee thereof or the issuance of Common Stock upon exercise thereof, or issuance
of Common Stock upon exercise or conversion of outstanding warrants or other derivative securities.
(q) If
immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration
Statement, any of the Shares remain unsold, the Company will, prior to the Renewal Deadline file, if it has not already done so and is
eligible to do so, an “automatic shelf registration statement” (as defined in Rule 405 under the 1933 Act) relating to the
Shares, in a form satisfactory to the Agents. If the Company is not eligible to file an automatic shelf registration statement, the Company
will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in
a form satisfactory to the Agents, and will use its best efforts to cause such registration statement to be declared effective within
60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the issuance and sale of
the Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration
Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Section 4. Free Writing Prospectus.
(a) (i) The Company represents
and agrees that without the prior consent of the Agents, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the 1933 Act; and
(ii) each Agent represents and
agrees that, without the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute
a free writing prospectus required to be filed with the Commission.
(b) The
Company has complied and will comply with the requirements of Rule 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus
(including any free writing prospectus identified in Section 4(a) hereof), including timely filing with the Commission or retention where
required and legending.
Section 5. Payment of Expenses. The Company
covenants and agrees with the Agents that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company’s counsel and accountants in connection with the registration of the Shares under the 1933 Act and all other expenses
in connection with the preparation, printing and filing of the Registration Statement, the ATM Prospectus, Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Agents;
(ii) the cost of printing or producing this Agreement or any Terms Agreement, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in
Section 3(b) hereof, including the reasonable fees and disbursements of counsel for the Agents in connection with such qualification and
in connection with the Blue Sky and Legal Investment Surveys; (iv) any filing fees incident to, and the reasonable fees and disbursements
of counsel for the Agents in connection with, any required review by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
of the terms of the sale of the Shares; (v) all fees and expenses in connection with listing or quoting the Shares on Nasdaq; (vi) the
cost of preparing the Shares; (vii) the costs and charges of any transfer agent or registrar or any dividend distribution agent; (viii)
the reasonable fees and disbursements of counsel to the Agents (a) in an aggregate amount not to exceed $60,000 in connection with the
execution of this Agreement and (b) in an aggregate amount not to exceed $5,000 per calendar quarter in which the Company has delivered
or intends to deliver instructions to sell Shares pursuant to Section 2(b) of this Agreement (which amounts shall include all fees and
disbursements of such counsel described in clauses (iii) and (iv) above); and (ix) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except
as provided in this Section, and Section 7 hereof, the Agents will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Shares by it, and any advertising expenses connected with any offers it may make.
Section 6. Conditions of Agents’ Obligation.
The obligations of the Agents hereunder shall be subject, in its discretion, to the condition that all representations and warranties
and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof
are true and correct as of the time of the execution of this Agreement, the date of any executed Terms Agreement and as of the latest
Registration Statement Amendment Date, Company Periodic Report Date, Applicable Time and Settlement Date, to the condition that the Company
shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the 1933 Act in accordance with Section 3(a) hereof,
any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the
Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agents.
(b) On
every date specified in Section 3(k) hereof, Duane Morris LLP, counsel for the Agents, shall have furnished to the Agents such written
opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On
every date specified in Section 3(k) hereof, Cooley LLP, counsel for the Company, shall have furnished to the Agents written opinion or
opinions, dated as of such date, in form and substance reasonably satisfactory to the Agents.
(d) Upon
the commencement of the offering of Shares under this Agreement and promptly after each Company Periodic Report Date that relates to the
filing of an Annual Report on Form 10-K, Choate, Hall & Stewart LLP, intellectual property counsel for the Company, shall have furnished
to the Agents written opinion or opinions, dated as of such date, in form and substance reasonably satisfactory to the Agents. Notwithstanding
the foregoing, the Company shall not be required to furnish or cause to be furnished any opinion referenced in this Section 6(d) at any
time there are no instructions to sell Shares delivered pursuant to Section 2(b) or a Terms Agreement then in effect; provided, however,
that such an opinion shall then be required to be furnished to the Agents prior to any further sales of Shares under this Agreement covering
the period which would most recently have been required but for this sentence.
(e) At
the dates specified in Section 3(l) hereof and on such other dates as reasonably requested by Agents, the independent accountants of the
Company who have certified the financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus shall have furnished to the Agents a letter dated as of the date of delivery
thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, containing statements
and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus.
(f) Prior
to commencement of the offering of Shares under this Agreement, the Agents shall have received a certificate, signed on behalf of the
Company by its corporate Secretary, in form and substance satisfactory to the Agents and their counsel.
(g) (i)
Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by Agents, the Company
will furnish or cause to be furnished promptly to the Agents a certificate of an officer in a form satisfactory to the Agents stating
the minimum price for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold
pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s
board of directors or a duly authorized committee thereof or, in connection with any amendment, revision or modification of such minimum
price or maximum Share number or amount, a new certificate with respect thereto and (ii) on each date specified in Section 3(j) and on
such other dates as reasonably requested by Agents, the Agents shall have received a certificate of executive officers of the Company,
one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital
markets and investments, dated as of the date thereof, to the effect that (A) there has been no Material Adverse Effect since the date
as of which information is given in the General Disclosure Package and the Prospectus as then amended or supplemented, (B) the representations
and warranties in Section 1 hereof are true and correct as of such date and (C) the Company has complied with all of the agreements
entered into in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or satisfied.
(h) Since
the date of the latest audited financial statements then included or incorporated by reference in the General Disclosure Package and the
Prospectus, no Material Adverse Effect shall have occurred.
(i) The
Company shall have complied with the provisions of Section 3(c) hereof with respect to the timely furnishing of prospectuses.
(j) On
such dates as reasonably requested by the Agents, the Company shall have conducted due diligence sessions, in form and substance satisfactory
to the Agents.
(k) All
filings with the Commission required by Rule 424 under the 1933 Act to have been filed by each Applicable Time or related Settlement Date
shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(l) Nasdaq
shall not have objected to the listing of the Shares on Nasdaq prior to the first Settlement Date.
(m) Prior
to any Settlement Date, the Company shall have furnished to the Agents such further information, documents or certificates as the Agents
may reasonably request.
Section 7. Indemnification.
(a) The
Company will indemnify and hold harmless the Agents against any losses, claims, damages or liabilities, joint or several, to which the
Agents may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the ATM Prospectus or the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Agents for any legal or other expenses reasonably incurred by the Agents in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the ATM Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in strict conformity with written information furnished to the Company
by the Agents expressly for use therein.
(b) Each
Agent, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the ATM Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration Statement, the ATM Prospectus or the Prospectus, or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in strict conformity with written information
furnished to the Company by such the Agent expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such subsection except and then only to the extent such indemnifying party
is materially prejudiced thereby. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party under this Section 7 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If
the indemnification provided for in this Section 7 is unavailable to hold harmless an indemnified party under subsection (a) or (b) above
in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand
and an Agent on the other from the offering of the Shares to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one hand and such Agent on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and such Agent on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the
total commissions received by such Agent. The relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company on the one hand or such Agent on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the Agents agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this subsection (d), an Agent shall not be required to contribute
any amount in excess of the amount by which the total compensation received by such Agent with respect to sales of the Shares sold by
it to the public exceeds the amount of any damages which such Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The
obligations of the Company under this Section 7 shall be in addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to the respective directors, officers, employees, attorneys and agents of each Agent and to each person,
if any, who controls each Agent within the meaning of the 1933 Act and each broker dealer affiliate of the Agents; and the obligations
of each Agent under this Section 7 shall be in addition to any liability which such Agent may otherwise have and shall extend, upon the
same terms and conditions, to each director, officer, employee, attorney and agent of the Company and to each person, if any, who controls
the Company within the meaning of the 1933 Act.
Section 8. Representations, Warranties and Agreements
to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company and the
Agents, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of the Agents or any
controlling person of the Agents, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery
of and payment for the Shares.
Section 9. No Advisory or Fiduciary Relationship.
The Company acknowledges and agrees that (i) each Agent is acting solely in the capacity of an arm’s length contractual counterparty
to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of such
offering) and (ii) no Agent has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Agent has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iii) the Company has consulted
its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Agents have
rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company, in connection with such transaction
or the process leading thereto.
Section 10. Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time. Any such termination shall be without liability of any party to any other party, except that (i) with respect to any pending
sale through an Agent for the Company, the obligations of the Company, including in respect of compensation of such Agent, shall remain
in full force and effect notwithstanding such termination; and (ii) the provisions of Section 1, Section 5, Section 7, Section 8, Section
14 and Section 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
Each Agent shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time with respect to itself. Any such termination shall be without liability of any party to any other party except that the provisions
of Section 1, Section 5, Section 7, Section 8, Section 14 and Section 15 of this Agreement shall remain in full force and effect notwithstanding
such termination.
(c)
Unless earlier terminated pursuant to this Section 10, this Agreement shall automatically terminate upon the issuance and sale
of all of the Shares by the Agents on the terms and subject to the conditions set forth herein except any termination pursuant to this
clause (c) shall in all cases be deemed to provide that Section 1, Section 5(b), Section 7, Section 8, Section 14 and Section 15 of this
Agreement shall remain in full force and effect.
(d)
This Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a), (b) or (c) above or
otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this clause
(c) shall in all cases be deemed to provide that Section 1, Section 5, Section 7, Section 8, Section 14 and Section 15 of this Agreement
shall remain in full force and effect.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that
such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall settle in accordance
with the provisions of Section 2(h) hereof. To the extent this Agreement is terminated by one Agent or by the Company with respect to
one Agent pursuant to Sections 10(a) (b) or (c) above, this Agreement shall terminate only with respect to such Agent and shall remain
in full force and effect with respect to the Company and the other Agent, unless and until terminated pursuant to Sections 10(a), (b),
(c), or (d) above.
(f)
In the case of any purchase by an Agent pursuant to a Terms Agreement, the such Agent may terminate this Agreement, at any time
at or prior to the Settlement Date (i) if there has been, since the time of execution of this Agreement or since the respective dates
as of which information is given in the General Disclosure Package or the Prospectus, any Material Adverse Effect, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment
of such Agent, impracticable or inadvisable to market the Shares or to enforce contracts for the sale of Shares, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the Commission or Nasdaq, or if trading generally on the American
Stock Exchange or the NYSE or Nasdaq has been suspended or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any
other governmental authority, or (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services
in the United States, or (v) if a banking moratorium has been declared by either Federal or New York authorities.
Section 11. Notices. All statements, requests,
notices and agreements hereunder shall be in writing, and if to the Agents shall be delivered or sent by mail, telex or facsimile transmission
to:
Stifel, Nicolaus & Company, Incorporated
One South Street, 15th Floor
Baltimore, Maryland 21202
Fax No. (443) 224-1273
Attention: Syndicate Department
And
Virtu Americas LLC
1633 Broadway
New York, NY 10019
Attention: General Counsel
With a copy to:
Duane Morris LLP
1540 Broadway
New York, NY 10036
Attention: James T. Seery
Email: jtseery@duanemorris.com
and if to the Company to:
Angion Biomedica Corp.
51 Charles Lindbergh Boulevard
Uniondale, NY 11553
Attention: Jay Venkatesan
Email: jrv@angion.com
With a copy to:
Cooley LLP
3 Embarcadero Center, 20th Floor
San Francisco, CA 94111-4004Attention: Kenneth Guernsey
Email: kguernsey@cooley.com
Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
Section 12. Parties. This Agreement shall
be binding upon, and inure solely to the benefit of, the Agents and the Company and, to the extent provided in Sections 7 and 8 hereof,
the officers, directors, employees, attorneys and agents of the Company and the Agents and each person who controls the Company or the
Agents, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of Shares through the Agents shall be deemed a successor or assign by reason merely
of such purchase.
Section 13. Time of the Essence. Time shall
be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s
office in Washington, D.C. is open for business.
Section 14. Waiver of Jury Trial. The Company
and the Agents hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to jury trial by jury in
any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 15. Governing Law. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS
OF LAW.
Section 16. Counterparts. This
Agreement and any Terms Agreement may be executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one
and the same instrument. This Agreement and any Terms Agreement may be delivered by any party by facsimile or other electronic
transmission.
Section 17. Severability. The invalidity
or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid
or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding
agreement between each of the Agents and the Company in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
ANGION
BIOMEDICA CORP. |
| |
|
| |
By: |
/s/ Greg Curhan |
| |
|
Name: Greg Curhan |
| |
|
Title: Chief Financial Officer |
Accepted as of the date hereof:
| STIFEL, NICOLAUS & COMPANY, INCORPORATED |
|
| |
|
| By: |
/s/ Sean Cessna |
|
| |
Name: Sean Cessna |
|
| |
Title: Managing Director |
|
| |
|
| VIRTU AMERICAS LLC |
|
| |
|
| By: |
/s/ Joshua R. Feldman |
|
| |
Name: Joshua R. Feldman |
|
| |
Title: Managing Director |
|
Schedule 1
Notice Parties
| The Company |
|
| |
|
| Jay Venkatesan |
jrv@angion.com |
|
| Greg Curhan |
gcurhan@angion.com |
|
| Jennifer Rhodes |
jrhodes@angion.com |
|
| |
|
| Stifel Nicolaus |
|
| |
|
| Daniel Covatta |
dcovatta@stifel.com |
|
| Mark White |
whitem@stifel.com |
|
| |
|
| Virtu |
|
| |
|
| Jeffrey Lumby |
jlumby@virtu.com |
|
| Joshua Feldman |
jfeldman@virtu.com |
|
| Conor Lumby |
clumby@virtu.com |
|
| |
|
| With a copy to atm@virtu.com |
|
Annex 1
ANGION BIOMEDICA CORP.
Common Stock
($0.01 par value per share)
TERMS AGREEMENT
[STIFEL, NICOLAUS & COMPANY, INCORPORATED
One South Street, 15th Floor
Baltimore, MD 21202
Attn: Syndicate Department]
[VIRTU AMERICAS LLC
One Liberty Plaza
1633 Broadway
New York, NY 10019
Attn: [•]]
Ladies and Gentlemen:
Angion Biomedica Corp., a Delaware corporation
(the “Company”), proposes, subject to the terms and conditions stated herein and in the At-the-Market Equity Offering
Sales Agreement, dated May 16, 2022 (the “Sales Agreement”), among the Company, Stifel, Nicolaus & Company, Incorporated
and Virtu Americas LLC, to issue and sell to [Stifel, Nicolaus & Company][Virtu Americas LLC] (the “Agent”) the securities
specified in the Schedule hereto (the “Purchased Securities”) [, and solely for the purpose of covering over-allotments,
to grant to the Agent the option to purchase the additional securities specified in the Schedule hereto (the “Additional Securities”)]*.
[The Agent shall have the right to purchase from
the Company all or a portion of the Additional Securities as may be necessary to cover over-allotments made in connection with the offering
of the Purchased Securities, at the same purchase price per share to be paid by the Agent to the Company for the Purchased Securities.
This option may be exercised by the Agent at any time (but not more than once) on or before the thirtieth day following the date hereof,
by written notice to the Company. Such notice shall set forth the aggregate number of shares of Additional Securities as to which the
option is being exercised, and the date and time when the Additional Securities are to be delivered (such date and time being herein referred
to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Time
of Delivery (as set forth in the Schedule hereto) nor earlier than the second business day after the date on which the option shall have
been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Payment of the purchase
price for the Additional Securities shall be made at the Option Closing Date in the same manner and at the same office as the payment
for the Purchased Securities.]*
Each of the provisions of the Sales Agreement
not specifically related to the solicitation by the Agent, as agent of the Company, of offers to purchase securities is incorporated
herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at
and as of the date of this Terms Agreement [and] [,] the Applicable Time [and any Option Closing Date]*, except that each representation
and warranty in Section 1 of the Sales Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to
be a representation and warranty as of the date of the Sales Agreement in relation to the Prospectus, and also a representation and warranty
as of the date of this Terms Agreement [and] [,] the Settlement Date [and any Option Closing Date]* in relation to the Prospectus as
amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement (as
defined in the Sales Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Securities [and the
Additional Securities]*, in the form heretofore delivered to the Agent is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions set forth herein
and in the Sales Agreement which are incorporated herein by reference, the Company agrees to issue and sell to the Agent and the latter
agrees to purchase from the Company the number of shares of the Purchased Securities at the time and place and at the purchase price set
forth in the Schedule hereto.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Agent and the Company in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
ANGION BIOMEDICA CORP. |
| |
|
| |
By: |
|
| |
|
| |
Name: |
| |
Title: |
Accepted as of the date hereof:
[STIFEL, NICOLAUS & COMPANY, INCORPORATED][VIRTU
AMERICAS LLC]
* Include only
if the Agent has an over-allotment option.
Exhibit 4.2
ANGION BIOMEDICA CORP.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [•], 20__
Debt Securities
Table
Of Contents
Page
| ARTICLE 1 DEFINITIONS |
1 |
| |
Section 1.01 |
Definitions of Terms |
1 |
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
Section 2.01 |
Designation and Terms of Securities |
5 |
| |
Section 2.02 |
Form of Securities and Trustee’s Certificate |
8 |
| |
Section 2.03 |
Denominations: Provisions for Payment |
8 |
| |
Section 2.04 |
Execution and Authentications |
10 |
| |
Section 2.05 |
Registration of Transfer and Exchange |
10 |
| |
Section 2.06 |
Temporary Securities |
12 |
| |
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
| |
Section 2.08 |
Cancellation |
13 |
| |
Section 2.09 |
Benefits of Indenture |
13 |
| |
Section 2.10 |
Authenticating Agent |
13 |
| |
Section 2.11 |
Global Securities |
14 |
| |
Section 2.12 |
CUSIP Numbers |
15 |
| ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
15 |
| |
Section 3.01 |
Redemption |
15 |
| |
Section 3.02 |
Notice of Redemption |
15 |
| |
Section 3.03 |
Payment Upon Redemption |
17 |
| |
Section 3.04 |
Sinking Fund |
17 |
| |
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
17 |
| |
Section 3.06 |
Redemption of Securities for Sinking Fund |
18 |
| ARTICLE 4 COVENANTS |
18 |
| |
Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
| |
Section 4.02 |
Maintenance of Office or Agency |
18 |
| |
Section 4.03 |
Paying Agents |
19 |
| |
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
20 |
| |
Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
20 |
| |
Section 5.02 |
Preservation Of Information; Communications With Securityholders |
20 |
Table
Of Contents
(continued)
Page
| |
Section 5.03 |
Reports by the Company |
21 |
| |
Section 5.04 |
Reports by the Trustee |
21 |
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
| |
Section 6.01 |
Events of Default |
22 |
| |
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
23 |
| |
Section 6.03 |
Application of Moneys Collected |
25 |
| |
Section 6.04 |
Limitation on Suits |
25 |
| |
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
26 |
| |
Section 6.06 |
Control by Securityholders |
26 |
| |
Section 6.07 |
Undertaking to Pay Costs |
27 |
| ARTICLE 7 CONCERNING THE TRUSTEE |
27 |
| |
Section 7.01 |
Certain Duties and Responsibilities of Trustee |
27 |
| |
Section 7.02 |
Certain Rights of Trustee |
28 |
| |
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
30 |
| |
Section 7.04 |
May Hold Securities |
31 |
| |
Section 7.05 |
Moneys Held in Trust |
31 |
| |
Section 7.06 |
Compensation and Reimbursement |
31 |
| |
Section 7.07 |
Reliance on Officer’s Certificate |
32 |
| |
Section 7.08 |
Disqualification; Conflicting Interests |
32 |
| |
Section 7.09 |
Corporate Trustee Required; Eligibility |
32 |
| |
Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
| |
Section 7.11 |
Acceptance of Appointment By Successor |
34 |
| |
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| |
Section 7.13 |
Preferential Collection of Claims Against the Company |
35 |
| |
Section 7.14 |
Notice of Default |
35 |
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
36 |
| |
Section 8.01 |
Evidence of Action by Securityholders |
36 |
| |
Section 8.02 |
Proof of Execution by Securityholders |
36 |
| |
Section 8.03 |
Who May be Deemed Owners |
37 |
| |
Section 8.04 |
Certain Securities Owned by Company Disregarded |
37 |
| |
Section 8.05 |
Actions Binding on Future Securityholders |
37 |
Table
Of Contents
(continued)
Page
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
38 |
| |
Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
| |
Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
39 |
| |
Section 9.03 |
Effect of Supplemental Indentures |
39 |
| |
Section 9.04 |
Securities Affected by Supplemental Indentures |
39 |
| |
Section 9.05 |
Execution of Supplemental Indentures |
40 |
| ARTICLE 10 SUCCESSOR ENTITY |
40 |
| |
Section 10.01 |
Company May Consolidate, Etc. |
40 |
| |
Section 10.02 |
Successor Entity Substituted |
41 |
| ARTICLE 11 SATISFACTION AND DISCHARGE |
41 |
| |
Section 11.01 |
Satisfaction and Discharge of Indenture |
41 |
| |
Section 11.02 |
Discharge of Obligations |
42 |
| |
Section 11.03 |
Deposited Moneys to be Held in Trust |
42 |
| |
Section 11.04 |
Payment of Moneys Held by Paying Agents |
42 |
| |
Section 11.05 |
Repayment to Company |
42 |
| ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
43 |
| |
Section 12.01 |
No Recourse |
43 |
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
43 |
| |
Section 13.01 |
Effect on Successors and Assigns |
43 |
| |
Section 13.02 |
Actions by Successor |
43 |
| |
Section 13.03 |
Surrender of Company Powers |
44 |
| |
Section 13.04 |
Notices |
44 |
| |
Section 13.05 |
Governing Law; Jury Trial Waiver |
44 |
| |
Section 13.06 |
Treatment of Securities as Debt |
44 |
| |
Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
44 |
| |
Section 13.08 |
Payments on Business Days |
45 |
| |
Section 13.09 |
Conflict with Trust Indenture Act |
45 |
| |
Section 13.10 |
Counterparts |
45 |
| |
Section 13.11 |
Separability |
45 |
| |
Section 13.12 |
Compliance Certificates |
46 |
| |
Section 13.13 |
U.S.A Patriot Act |
46 |
Table
Of Contents
(continued)
Page
| |
Section 13.14 |
Force Majeure |
46 |
| |
Section 13.15 |
Table of Contents; Headings |
46 |
INDENTURE
Indenture,
dated as of [•], 20__, among Angion Biomedica Corp., 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 Angion Biomedica Corp., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article Ten, 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.
The term “given”,
“mailed”, “notify” or “sent” with respect to any notice
to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant
to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or
procedures at the Depositary (in the case of a Global Security) or (y) mailed to such Securityholder by first class mail, postage
prepaid, at its address as it appears on the Security Register (in the case of a definitive Security). Notice so “given” shall
be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“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 in the Security Register 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 sent, to each Securityholder 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
sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register 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.
The Company initially appoints
the Trustee as initial Security Registrar for each series of Securities
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.
(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 sending 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 sending, 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 Securityholders), 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 Securityholders; 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.
ARTICLE 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 Depositary), 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 Securityholders, 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 Securities to be redeemed shall be selected, by lot, on a pro rata basis,
or in such other manner as the Company 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 Securityholder 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 Securities to be redeemed
upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the Company shall 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.
ARTICLE 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 send
to the Securityholders 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.
ARTICLE 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 Securityholder 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 Securityholder 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
Securityholder or Securityholders 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:
(1) 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
(A) 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;
(B) 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;
(ii) 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;
(iii) 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;
(iv) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(v) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vi) 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 such 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 and under the Securities, and each agent,
custodian or other person employed to act under this Indenture.
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting the failure
to pay the interest on, or the principal of, the Securities if the Trustee also serves the paying agent for such 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 the Securityholders of such series. 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 sending 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 send notice of the succession of such
trustee hereunder to the Securityholders. 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 send 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.
ARTICLE 8
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.
ARTICLE 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) send 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 send, or cause
the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE 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).
ARTICLE 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.
ARTICLE 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.
ARTICLE 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
shall be governed by, and construed in accordance with, the internal 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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Angion
Biomedica Corp. |
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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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CROSS-REFERENCE TABLE (1)
|
Section of
Trust Indenture Act of 1939, as Amended |
Section of
Indenture |
| 310(a) |
7.09 |
| 310(b) |
7.08 |
| |
7.10 |
| 310(c) |
Inapplicable |
| 311(a) |
7.13 |
| 311(b) |
7.13 |
| 311(c) |
Inapplicable |
| 312(a) |
5.01 |
| |
5.02(a) |
| 312(b) |
5.02(c) |
| 312(c) |
5.02(c) |
| 313(a) |
5.04(a) |
| 313(b) |
5.04(b) |
| 313(c) |
5.04(a) |
| |
5.04(b) |
| 313(d) |
5.04(c) |
| 314(a) |
5.03 |
| |
13.12 |
| 314(b) |
Inapplicable |
| 314(c) |
13.07(a) |
| 314(d) |
Inapplicable |
| 314(e) |
13.07(b) |
| 314(f) |
Inapplicable |
| 315(a) |
7.01(a) |
| |
7.01(b) |
| 315(b) |
7.14 |
| 315(c) |
7.01 |
| 315(d) |
7.01(b) |
| 315(e) |
6.07 |
| 316(a) |
6.06 |
| |
8.04 |
| 316(b) |
6.04 |
| 316(c) |
8.01 |
| 317(a) |
6.02 |
| 317(b) |
4.03 |
| 318(a) |
13.09 |
| (1) | 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. |
Exhibit 4.4
Angion
Biomedica Corp.
and
_____________,
As Warrant Agent
Form of
Common Stock
Warrant
Agreement
Dated
As Of __________
Angion
Biomedica Corp.
Form of
Common Stock Warrant Agreement
This
Common Stock Warrant Agreement (this “Agreement”), dated as of [●], between,
Angion Biomedica Corp., a Delaware corporation (the “Company”) and [●], a [corporation] [national
banking association] organized and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent
(the “Warrant Agent”).
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities being offered]
(the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase Common Stock of the Company, par value $0.01
per share (the “Warrant Securities”), such warrant certificates and other warrant certificates issued pursuant
to this Agreement being herein called the “Warrant Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes
to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
Article 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security. [If
Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each Warrant Certificate
will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon
as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are
not inconsistent with the provisions of this Agreement, 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 the Warrants may be listed, or to conform
to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers,
presidents, senior vice presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers,
controllers, assistant controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures
may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates.
The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such
person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver such
Warrant Certificates to or upon the order of the Company.
Article 2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable
Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant Certificate
at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [●]
and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received
by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named as
the holder of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record
of such Warrant Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the
Warrant Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in
respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books
shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with it and
shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities with
respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such
other information as the Company shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing
Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company’s
satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the Warrants.
Article 3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation, the right to receive
the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights, except to the extent expressly
set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, 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 Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares, the Warrant Price
in effect immediately prior to such subdivision shall be proportionately reduced and the number of Warrant Securities purchasable under
the Warrants shall be proportionately increased. Conversely, in case the outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased
and the number of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If
at any time or from time to time the holders of Common Stock (or any shares of stock or other securities at the time receivable upon the
exercise of the Warrants) shall have received or become entitled to receive, without payment therefor,
(i) Common
Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common
Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) Common
Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments in respect of
which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall,
upon the exercise of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without
payment of any additional consideration therefor, the amount of stock and other securities and property (including cash and indebtedness
or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise had such holder been the
holder of record of such Warrant Securities as of the date on which holders of Common Stock received or became entitled to receive such
shares or all other additional stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result of
a subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share
exchange, merger or similar transaction of the Company with or into another person or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving corporation and which does not result in any change in the Common Stock
other than the issuance of additional shares of Common Stock) or (iii) the sale, exchange, lease, transfer or other disposition of
all or substantially all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization Event”),
then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of the Warrants shall have the right
at any time prior to the expiration of the Warrants to purchase, at a total price equal to that payable upon the exercise of the Warrants,
the kind and amount of shares of stock and other securities and property receivable in connection with such Reorganization Event by a
holder of the same number of Warrant Securities as were purchasable by the holders of the Warrants immediately prior to such Reorganization
Event. In any such case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants so
that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase
price shall remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon
be relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or
at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have
been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under
this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology and form
(but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of shares of Common
Stock, or securities convertible into or exchangeable for shares of Common Stock, or securities carrying the right to purchase any of
the foregoing or for any other reason whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security which
would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security, in either case
as reported on the principal registered national securities exchange on which the Warrant Securities are listed or admitted to trading
on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board Service (the “OTC Bulletin Board”) operated by the Financial Industry Regulatory Authority, Inc.
(“FINRA” ) or, if not available on the OTC Bulletin Board, then the average of the closing high bid and low
asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system on such date, or if on any such date the
Warrant Securities are not listed or admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin
Board, and are not quoted on any other U.S. quotation medium or inter-dealer quotation system, an amount equal to the same fraction of
the average of the closing bid and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that
purpose at the close of business on the business day that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such holder’s
address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof, be less than the
par value per share of Common Stock.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the Common Stock in connection with the dissolution, liquidation
or winding up of the Company, or (d) reduce the then current Warrant Price pursuant to Section 3.4(d), then the Company shall
mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten days
prior to the applicable date hereinafter specified, a notice stating (x) the record date for such dividend or distribution, or, if
a record is not to be taken, the date as of which the holders of record of Common Stock that will be entitled to such dividend or distribution
are to be determined, (y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the
first date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6 [If
the Warrants are Subject to Acceleration by the Company, Insert — Acceleration of Warrants by the Company.
(a) At
any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them to expire
at the close of business on the day next preceding a specified date (the “Acceleration Date”), if the Market
Price (as hereinafter defined) of the Common Stock equals or exceeds [●] percent ([●]%) of the then effective Warrant Price
on any twenty Trading Days (as hereinafter defined) within a period of thirty consecutive Trading Days ending no more than five Trading
Days prior to the date on which the Company gives notice to the Warrant Agent of its election to accelerate the Warrants.
(b) (b) “Market
Price” for each Trading Day shall be, if the Common Stock is listed or admitted to trading on any registered national securities
exchange, the last reported sale price, regular way (or, if no such price is reported, the average of the reported closing bid and asked
prices, regular way) of Common Stock, in either case as reported on the principal registered national securities exchange on which the
Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any registered national securities exchange,
the average of the closing high bid and low asked prices as reported on the OTC Bulletin Board operated by FINRA, or if not available
on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported on any other U.S. quotation medium
or inter-dealer quotation system, or if on any such date the shares of Common Stock are not listed or admitted to trading on a registered
national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium or inter-dealer
quotation system, the average of the closing bid and asked prices as furnished by any FINRA member firm selected from time to time by
the Company for that purpose. “Trading Day” shall be each Monday through Friday, other than any day on which securities are
not traded in the system or on the exchange that is the principal market for the Common Stock, as determined by the Board of Directors
of the Company. In the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated
by lot, pro rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant Agent not
more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall be given no more
than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants pursuant to this Section 3.6,
by publication at least once in a newspaper of general circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section 2.]
Article 4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number of Warrant Securities
as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as
so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance
of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant
Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this
Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
Article 5
CONCERNING
THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or
in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of
such liability.
(b) Agent
for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under any indenture
to which the Company is a party.
(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Article 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions
with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Angion Biomedica
Corp., 51 Charles Lindbergh Boulevard, Uniondale, New York, 11553, Attention: [●] (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of
the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States Federal
and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities under the Securities
Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such holder’s
Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed all as of the day and year first above written.
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ANGION BIOMEDICA CORP., as Company |
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Common Stock Warrant Agreement
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Form of
Common Stock Warrant Agreement
Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Prior to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
ANGION BIOMEDICA CORP.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.01 PER SHARE
This certifies that [●]
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to
purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on [●], [●] shares
of Common Stock, par value $0. per share (the “Warrant Securities”), of Angion Biomedica Corp. (the “Company”)
on the following basis: during the period from [●], through and including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the “Warrant Price”). The
Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in full,
in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Security with respect to which this Warrant
is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the
back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by
this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant Certificate
evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate is
issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”), between
the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on
file at the above-mentioned office of the Warrant Agent.
Transfer of this Warrant Certificate
may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the registered owner
or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature by
the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant Securities.
This Warrant Certificate shall
not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right to
receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth in the Warrant Agreement)
or to exercise any voting rights.
Reference is hereby made to
the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
This Warrant Certificate shall
not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
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ANGION BIOMEDICA CORP., as Company |
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COUNTERSIGNED |
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced
hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of America, [in cash
or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●], which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete the information
required below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received by
the Warrant Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably
elects to exercise [●] Warrants, evidenced by this Warrant Certificate, to purchase [●] shares of the Common Stock, par value
$0.01 per share (the “Warrant Securities”), of Angion Biomedica Corp. and represents that he has tendered payment
for such Warrant Securities, in lawful money of the United States of America, [in cash or by certified check or official bank check in
New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order of Angion Biomedica Corp., c/o [insert
name and address of Warrant Agent], in the amount of $[●] in accordance with the terms hereof. The undersigned requests
that said Warrant Securities be in fully registered form in the authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the Warrants
for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise specified in the
instructions below.
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(Signature must conform in
all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member
firm).
This Warrant may be exercised
at the following addresses:
By hand at:
By mail at:
[Instructions as to form and
delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities remaining
unexercised—complete as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant]
For
Value Received, [●] hereby sells, assigns and transfers unto:
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the right represented by the
within Warrant to purchase shares of [Title of Warrant Securities] of Angion Biomedica Corp. to which the within Warrant relates and appoints
[●] attorney to transfer such right on the books of the Warrant Agent with full power of substitution in the premises.
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
Exhibit 4.5
Angion
Biomedica Corp.
and
_____________,
As Warrant Agent
Form of
Preferred Stock
Warrant Agreement
Dated
As Of __________
ANGION
BIOMEDICA CORP.
FORM OF
PREFERRED STOCK WARRANT AGREEMENT
This
Preferred Stock Warrant Agreement (this “Agreement”), dated as of [●], between Angion
Biomedica Corp., a Delaware corporation (the “Company”) and [●], a [corporation] [national
banking association] organized and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent
(the “Warrant Agent”).
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities being offered]
(the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Preferred Stock purchasable through
exercise of Warrants] of the Company, par value $0.01 per share (the “Warrant Securities”), such warrant certificates
and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant Certificates”;
and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued,
registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
Article 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security. [If
Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each Warrant Certificate
will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon
as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are
not inconsistent with the provisions of this Agreement, 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 the Warrants may be listed, or to conform
to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers,
presidents, senior vice presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers,
controllers, assistant controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures
may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates.
The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such
person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt
of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver such Warrant Certificates
to or upon the order of the Company.
Article 2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable
Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant Certificate
at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [●]
and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received
by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named as
the holder of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record
of such Warrant Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the
Warrant Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in
respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books
shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with it and
shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities with
respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such
other information as the Company shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing
Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company’s
satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the Warrants.
Article 3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1 No
Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation, the right to receive
the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights, except to the extent expressly
set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, 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 Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of [title of Preferred Stock purchasable through exercise of Warrants]
into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and
the number of Warrant Securities purchasable under the Warrants shall be proportionately increased. Conversely, in case the outstanding
shares of [title of Preferred Stock purchasable through exercise of Warrants] shall be combined into a smaller number of shares, the Warrant
Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant Securities purchasable
under the Warrants shall be proportionately decreased.
(b) If
at any time or from time to time the holders of [title of Preferred Stock purchasable through exercise of Warrants] (or any shares of
stock or other securities at the time receivable upon the exercise of the Warrants) shall have received or become entitled to receive,
without payment therefor,
(i) [title
of Preferred Stock purchasable through exercise of Warrants] or any shares of stock or other securities which are at any time directly
or indirectly convertible into or exchangeable for [title of Preferred Stock purchasable through exercise of Warrants], or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii) any
cash paid or payable otherwise than in accordance with the terms of [title of Preferred Stock purchasable through exercise of Warrants]
or otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) [title
of Preferred Stock purchasable through exercise of Warrants] or additional stock or other securities or property (including cash) by way
of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of [title of Preferred
Stock purchasable through exercise of Warrants] issued as a stock split or adjustments in respect of which shall be covered by the terms
of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall, upon the exercise of the Warrant, be
entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including cash and indebtedness or rights to subscribe for or purchase
indebtedness) which such holder would hold on the date of such exercise had such holder been the holder of record of such Warrant Securities
as of the date on which holders of [title of Preferred Stock purchasable through exercise of Warrants] received or became entitled to
receive such shares or all other additional stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change in the [title of Preferred Stock purchasable through the exercise
of Warrants] of the Company (other than as a result of a subdivision, combination or stock dividend provided for in Section 3.4(a) or
Section 3.4(b) above), (ii) share exchange, merger or similar transaction of the Company with or into another person or
entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation and
which does not result in any change in the [title of Preferred Stock purchasable through the exercise of Warrants] other than the issuance
of additional shares of [title of Preferred Stock purchasable through the exercise of Warrants]) or (iii) the sale, exchange, lease,
transfer or other disposition of all or substantially all of the properties and assets of the Company as an entirety (in any such case,
a “Reorganization Event”), then, as a condition of such Reorganization Event, lawful provisions shall be made,
and duly executed documents evidencing the same from the Company or its successor shall be delivered to the holders of the Warrants, so
that the holders of the Warrants shall have the right at any time prior to the expiration of the Warrants to purchase, at a total price
equal to that payable upon the exercise of the Warrants, the kind and amount of shares of stock and other securities and property receivable
in connection with such Reorganization Event by a holder of the same number of shares of [title of Preferred Stock purchasable through
the exercise of Warrants] as were purchasable by the holders of the Warrants immediately prior to such Reorganization Event. In any such
case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants so that the provisions
hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon exercise the
Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase price shall
remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon be relieved
of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have been signed
by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant Securities
upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive a written opinion
of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of any securities of
the Company or for any other reason whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security which
would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security, in either case
as reported on the principal registered national securities exchange on which the Warrant Securities are listed or admitted to trading
on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board Service (the “OTC Bulletin Board”) operated by Financial Industry Regulatory Authority, Inc. (“FINRA”)
or, if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported on any other
U.S. quotation medium or inter-dealer quotation system on such date, or if on any such date the Warrant Securities are not listed or admitted
to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S.
quotation medium or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid and asked prices
as furnished by any FINRA member firm selected from time to time by the Company for that purpose at the close of business on the business
day that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such holder’s
address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof, be less than the
par value per share of [title of Preferred Stock purchasable through the exercise of Warrants].
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the [title of Preferred Stock purchasable through the exercise
of the Warrants] in connection with the dissolution, liquidation or winding up of the Company, or (d) reduce the then current Warrant
Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address as it shall
appear on the books of the Warrant Agent, at least ten days prior to the applicable date hereinafter specified, a notice stating (x) the
record date for such dividend or distribution, or, if a record is not to be taken, the date as of which the holders of record of [title
of Preferred Stock purchasable through the exercise of Warrants] that will be entitled to such dividend or distribution are to be determined,
(y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of [title of Preferred Stock purchasable through the exercise of Warrants] of record shall
be entitled to exchange their shares of [title of Preferred Stock purchasable through the exercise of Warrants] for securities or other
property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the first date on which the then
current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6 [If
the Warrants are Subject to Acceleration by the Company, Insert—Acceleration of Warrants by the Company.]
(a) At
any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them to expire
at the close of business on the day next preceding a specified date (the “Acceleration Date”), if the Market
Price (as hereinafter defined) of the [title of Preferred Stock purchasable through the exercise of Warrants] equals or exceeds [●]
percent ([●]%) of the then effective Warrant Price on any twenty Trading Days (as hereinafter defined) within a period of thirty
consecutive Trading Days ending no more than five Trading Days prior to the date on which the Company gives notice to the Warrant Agent
of its election to accelerate the Warrants.
(b)“Market
Price” for each Trading Day shall be, if the [title of Preferred Stock purchasable through the exercise of Warrants] is
listed or admitted to trading on any registered national securities exchange, the last reported sale price, regular way (or, if no such
price is reported, the average of the reported closing bid and asked prices, regular way) of [title of Preferred Stock purchasable through
the exercise of Warrants], in either case as reported on the principal registered national securities exchange on which the [title of
Preferred Stock purchasable through the exercise of Warrants] is listed or admitted to trading or, if not listed or admitted to trading
on any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices
as reported on any other U.S. quotation medium or inter-dealer quotation system, or if on any such date the shares of [title of Preferred
Stock purchasable through the exercise of Warrants] are not listed or admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium or inter-dealer quotation system, the
average of the closing bid and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that purpose.
“Trading Day” shall be each Monday through Friday, other than any day on which securities are not traded in
the system or on the exchange that is the principal market for the [title of Preferred Stock purchasable through the exercise of Warrants],
as determined by the Board of Directors of the Company.
(b) In
the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot, pro
rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant Agent not
more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall be given no more
than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants pursuant to this Section 3.6,
by publication at least once in a newspaper of general circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section 2.]
Article 4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number of Warrant Securities
as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as
so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance
of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant
Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this
Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
Article 5
CONCERNING
THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or
in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of
such liability.
(b) Agent
for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon
any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under any indenture
to which the Company is a party.
(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when it shall
become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Article 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions
with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention: [●]
and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Angion Biomedica Corp.,
51 Charles Lindbergh Boulevard, Uniondale, New York 11553, Attention: [●] (or such other address as shall be specified in writing
by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of
the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States Federal
and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities under the Securities
Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such holder’s
Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above
written.
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ANGION BIOMEDICA CORP., as Company |
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COUNTERSIGNED |
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[●], as Warrant
Agent |
[SIGNATURE
PAGE
TO
PREFERRED
STOCK
WARRANT
AGREEMENT]
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
| [Form of Legend if Warrants are not immediately exercisable.] |
[Prior to [●] Warrants evidenced by this Warrant Certificate
cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED
HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
ANGION BIOMEDICA CORP.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
This certifies that [●]
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to purchase,
at any time [after [●] p.m., [City] time, on [●] and] on or before [●] p.m., [City] time, on [●] shares of [Title
of Warrant Securities], par value $0.01 per share (the “Warrant Securities”), of Angion Biomedica Corp. (the
“Company”) on the following basis: during the period from [●], through and including [●], the exercise
price per Warrant Security will be $[●], subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the
“Warrant Price”). The Holder may exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full, in lawful money of the United States of America, [in cash or by certified check or official
bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], the Warrant Price for each Warrant
Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its
successor as warrant agent (the “Warrant Agent”), which is, on the date hereof, at the address specified on
the reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by
this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant Certificate
evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the
registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature by
the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right
to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth in the Warrant Agreement)
or to exercise any voting rights.
Reference is hereby made
to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
| ANGION BIOMEDICA CORP., as Company |
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| ATTEST: |
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COUNTERSIGNED
[●], as Warrant Agent |
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| By: |
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| Name: |
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| Title: |
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| ATTEST: |
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●], which payment
must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete the information
required below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received by the Warrant
Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably
elects to exercise [●] Warrants, evidenced by this Warrant Certificate, to purchase [●] shares of the [Title of Warrant Securities],
par value $0.01 per share (the “Warrant Securities”), of Angion Biomedica Corp. and represents that the undersigned
has tendered payment for such Warrant Securities, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order of Angion
Biomedica Corp., c/o [insert name and address of Warrant Agent], in the amount of $[●] in accordance with the terms hereof. The
undersigned requests that said Warrant Securities be in fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the Warrants
for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise specified in the
instructions below.
| Dated: |
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Name: |
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Please Print |
Address:
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(Insert Social Security
or Other Identifying Number of
Holder) |
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| Signature Guaranteed: |
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Signature |
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(Signature must conform in all respects to name
of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses:
By hand at:
By mail at:
[Instructions as to form and delivery of Warrant
Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities remaining unexercised—complete
as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant]
For
Value Received, [●] hereby sells, assigns and transfers unto:
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| (Please print name and address including zip code) |
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Please print Social Security or other identifying number |
the right represented by the within Warrant to purchase [●]
shares of [Title of Warrant Securities] of Angion Biomedica Corp. to which the within Warrant relates and appoints [●] attorney
to transfer such right on the books of the Warrant Agent with full power of substitution in the premises.
(Signature must conform in
all respects to name of holder as specified on the face of the Warrant)
Signature Guaranteed
Exhibit 4.6
Angion
Biomedica Corp.
and
_____________,
As Warrant Agent
Form of
Debt Securities
Warrant Agreement
Dated
As Of __________
ANGION BIOMEDICA CORP.
FORM OF DEBT SECURITIES WARRANT AGREEMENT
Angion
Biomedica Corp. Form of debt securities Warrant Agreement
This
Debt Securities Warrant Agreement (this “Agreement”), dated as of [●], between Angion
Biomedica Corp., a Delaware corporation (the “Company”) and [●], a [corporation] [national
banking association] organized and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent
(the “Warrant Agent”).
Whereas,
the Company has entered into an indenture dated as of [●] (the “Indenture”), with [●], as trustee
(such trustee, and any successors to such trustee, herein called the “Trustee”), providing for the issuance
from time to time of its debt securities, to be issued in one or more series as provided in the Indenture (the “Debt Securities”);
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — title of such other securities being offered]
(the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the “Warrant Debt Securities”), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the “Warrant Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued,
registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
Article 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Debt Security. [If
Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each Warrant Certificate
will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon
as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are
not inconsistent with the provisions of this Agreement, 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 the Warrants may be listed, or to conform
to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers,
presidents, senior vice presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers,
controllers, assistant controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures
may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates.
The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such
person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Debt Securities may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
Article 2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof, to purchase the principal amount of Warrant Debt Securities specified in the
applicable Warrant Certificate at an exercise price of [●]% of the principal amount thereof [plus accrued amortization, if any,
of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from the date
of their initial issuance.] [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities) will
be amortized at a [●]% annual rate, computed on a[n] [semi-] annual basis [using a 360-day year consisting of twelve 30-day months].]
Such purchase price for the Warrant Debt Securities is referred to in this Agreement as the “Warrant Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [●]
and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Debt Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Debt Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant
Price, the transfer books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt
of such Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Debt Securities on such date, but shall be effective to constitute such person as the holder
of record of such Warrant Debt Securities for all purposes at the opening of business on the next succeeding day on which the transfer
books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant
Debt Securities in respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which
the transfer books shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant
Debt Securities. The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise, and (iv) such
other information as the Company or the Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue, pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate evidencing such Warrant the Warrant Debt Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established to the
Company’s satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Debt Securities, a number of shares sufficient to provide for the exercise of the Warrants.
Article 3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Holders of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities, including, without limitation,
the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce
any of the covenants in the Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities. Upon the issuance of any new Warrant Certificate
under this Section 3.2, 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 Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt Securities or the holder
of any other Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right
to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificates
and in this Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation)
or (b) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and assets of the Company
as an entirety (in any such case, a “Reorganization Event”), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the same from the Company’s successor shall be delivered
to the holders of the Warrants, so that such successor shall succeed to and be substituted for the Company, and assume all the Company’s
obligations under, this Agreement and the Warrants. The Company shall thereupon be relieved of any further obligation hereunder or under
the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company,
any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the Company, and may execute and deliver
securities in its own name, in fulfillment of its obligations to deliver Warrant Debt Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof.
In any case of any such Reorganization Event, such changes in phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence
that any such Reorganization Event complies with the provisions of this Section 3.4.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any Reorganization Event or (b) make any distribution on or in respect
of the [title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of the Company, then the Company
shall mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten
days prior to the applicable date hereinafter specified, a notice stating the date on which such Reorganization Event, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is expected that holders of [title of Warrant Debt Securities]
of record shall be entitled to exchange their shares of [title of Warrant Debt Securities] for securities or other property deliverable
upon such Reorganization Event, dissolution, liquidation or winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction.
Article 4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate principal amount of Warrant
Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in which,
subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as
so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance
of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Debt Security or a number of Warrants for a whole number of
Warrant Debt Securities and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
Article 5
CONCERNING
THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or
in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of
such liability.
(b) Agent
for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee
under any indenture to which the Company is a party, including, without limitation, as Trustee under the Indenture.
(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the
Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Article 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions
with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Angion Biomedica
Corp., 51 Charles Lindbergh Boulevard, Uniondale, New York 11553, Attention: [●] (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of
the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Debt Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States Federal
and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Debt Securities under the
Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of
the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such holder’s
Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above
written.
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[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
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[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Prior to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS
PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
ANGION BIOMEDICA CORP.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
This certifies that [●]
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to
purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on, $[●]
principal amount of [Title of Warrant Debt Securities] (the “Warrant Debt Securities”) of Angion Biomedica Corp.
(the “Company”) issued or to be issued under the Indenture (as hereinafter defined), on the following basis:
during the period from [●], through and including [●], each Warrant shall entitle the Holder thereof, subject to the provisions
of this Agreement, to purchase the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the warrant price
(the “Warrant Price”) of [●]% of the principal amount thereof [plus accrued amortization, if any, of the
original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from the date
of their original issuance]. [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities) will
be amortized at a [●]% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day months].
The Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in full,
in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Debt Security with respect to which this Warrant
is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the
back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by
this Warrant Certificate may be exercised to purchase Warrant Debt Securities in the principal amount of $1,000 or any integral multiple
thereof in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the Holder hereof a new Warrant Certificate evidencing Warrants for the aggregate principal amount of Warrant Debt Securities
remaining unexercised.
This Warrant Certificate is
issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”), between
the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent.
The Warrant Debt Securities
to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance
with an Indenture, dated as of [●] (the “ Indenture”), between the Company and [●], as trustee (such
trustee, and any successors to such trustee, the “Trustee”) and will be subject to the terms and provisions
contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities,
are on file at the corporate trust office of the Trustee.
Transfer of this Warrant Certificate
may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the registered owner
or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature by
the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate principal amount of Warrant Debt
Securities.
This Warrant Certificate shall
not entitle the Holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation, the right
to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to
the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
This Warrant Certificate shall
not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In Witness
Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures of its
duly authorized officers.
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced
hereby for Warrant Debt Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●], which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete the information required
below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended) to the Warrant Agent at
the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably
elects to exercise [●] Warrants, represented by this Warrant Certificate, to purchase $[●] principal amount of the [Title
of Warrant Debt Securities] (the “Warrant Debt Securities”) of Angion Biomedica Corp. and represents that the
undersigned has tendered payment for such Warrant Debt Securities, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order of
Angion Biomedica Corp., c/o [insert name and address of Warrant Agent], in the amount of $[●] in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Debt Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the Warrants
for the aggregate principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
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(Signature must conform in all respects to name
of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses:
By hand at:
By mail at:
[Instructions as to form and delivery of Warrant
Debt Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Debt Securities remaining unexercised—complete
as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant]
For Value
Received, [●] hereby sells, assigns and transfers unto:
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the right represented by the within Warrant to
purchase $[●] aggregate principal amount of [Title of Warrant Debt Securities] of Angion Biomedica Corp. to which the within Warrant
relates and appoints [●] attorney to transfer such right on the books of the Warrant Agent with full power of substitution in the
premises.
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
Exhibit 5.1
Kenneth Guernsey
T: +1 415 693 2091
kguernsey@cooley.com
May 16, 2022
Angion Biomedica Corp.
1700 Montgomery St, Suite 108
San Francisco, CA
Ladies and Gentlemen:
We have acted as counsel to Angion Biomedica Corp.,
a Delaware corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-3 (the “Registration
Statement”) by the Company under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement includes two prospectuses, (i) a base prospectus (the “Base Prospectus”) and
(ii) a sales agreement prospectus (the “Sales Agreement Prospectus”) covering up to $21,000,000 of shares
of the Company’s common stock, par value $0.01 per share (“Common Stock”) that may be sold under the Sales
Agreement, dated May 16, 2022, between the Company, Stifel Nicolaus & Company, Inc. and Virtu Financial Inc. (such
agreement, the “Sales Agreement”, and such shares, the “Placement Shares”). The Base
Prospectus provides that it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus
Supplement”). The Registration Statement, including the Base Prospectus (as supplemented from time to time by one or more
Prospectus Supplements) and the Sales Agreement Prospectus will provide for the registration by the Company of:
| · | shares of Common Stock (the “Base
Prospectus Shares”); |
| · | shares of preferred stock, par value $0.01 per
share, of the Company (the “Preferred Stock”); |
| · | debt securities, in one or more series (the “Debt
Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt
Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and the Company,
in the form filed as Exhibit 4.2 to the Registration Statement and one or more indentures supplemental thereto with respect to any
particular series of Debt Securities (the “Indenture”); |
| · | warrants to purchase Common Stock, Preferred
Stock, or Debt Securities (the “Warrants”), which may be issued under one or more warrant agreements, to be
dated on or about the date of the first issuance of the Warrants thereunder, by and between a warrant agent to be selected by the Company
(the “Warrant Agent”) and the Company, in the forms filed as Exhibits 4.4, 4.5 and 4.6 to the Registration Statement,
respectively (each, a “Warrant Agreement”); and |
The Base Prospectus Shares, the Preferred Stock,
the Debt Securities, the Warrants, and the Placement Shares, plus any additional Common Stock, Preferred Stock, Debt Securities and Warrants
that may be registered pursuant to any registration statement that the Company may hereafter file with the Securities and Exchange Commission
pursuant to Rule 462(b) under the Securities Act in connection with an offering by the Company pursuant to the Registration
Statement, are collectively referred to herein as the “Securities.” The Securities are being registered for
offer and sale from time to time pursuant to Rule 415 under the Securities Act.
Three
embarcadero center, 20th floor, san francisco, ca 94111 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
In connection with this opinion, we have examined
and relied upon such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon a certificate of an officer of
the Company and have not independently verified such matters.
In rendering this opinion, we have assumed the
genuineness of all signatures; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization,
execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
With respect to our opinion as to the Base Prospectus
Shares, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock will be authorized and available
for issuance and that the consideration for the issuance and sale of the Base Prospectus Shares (or Preferred Stock or Debt Securities
convertible into, or Warrants exercisable for, Common Stock) will be in an amount that is not less than the par value of the Common Stock.
With respect to our opinion as to the Preferred Stock, we have assumed that, at the time of issuance and sale, a sufficient number of
shares of Preferred Stock will be authorized, designated and available for issuance and that the consideration for the issuance and sale
of the Preferred Stock (or Debt Securities convertible into, or Warrants exercisable for, Preferred Stock) will be in an amount that is
not less than the par value of the Preferred Stock. We have also assumed that any Debt Securities or Warrants offered under the Registration
Statement, and the related Indenture and Warrant Agreement will be executed in the forms filed as exhibits to the Registration Statement
or incorporated by reference therein. We have also assumed that (i) with respect to Securities issuable upon conversion of any convertible
Preferred Stock, such convertible Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable; and (ii) with
respect to any Securities issuable upon conversion of any convertible Debt Securities or upon exercise of any Warrants, such convertible
Debt Securities or Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable
relief, including specific performance.
With respect to the Placement Shares, we have
assumed (i) that the specific sale of the Placement Shares will be duly authorized by the Board of Directors of the Company, a duly
authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General
Corporation Law of the State of Delaware (the “DGCL”) and (ii) that no more than 16,153,846 Placement Shares
will be sold for a consideration not less than the par value of the Common Stock. With respect to the Placement Shares, we express no
opinion to the extent that future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of
the Company cause the number of shares of Common Stock then available for issuance to be less than the number of Placement Shares then
issuable under the Sales Agreement.
Our opinion herein is expressed solely with respect
to the DGCL and, as to the Debt Securities and the Warrants constituting valid and legally binding obligations of the Company, the laws
of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion to the extent that
any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal
or state securities law, rule or regulation.
Three
embarcadero center, 20th floor, san francisco, ca 94111 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
On the basis of the foregoing and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that:
1. With
respect to the Base Prospectus Shares offered under the Registration Statement, provided that (i) the Registration Statement and
any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the issuance of the Base
Prospectus Shares has been duly authorized by all necessary corporate action on the part of the Company; (iii) the issuance and sale
of the Base Prospectus Shares do not violate any applicable law, are in conformity with the Company’s then operative certificate
of incorporation (the “Certificate of Incorporation”) and bylaws (the “Bylaws”), do
not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates, if any,
for the Base Prospectus Shares have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered
to the purchasers thereof against payment therefor, then the Base Prospectus Shares, when issued and sold as contemplated in the Registration
Statement, the Base Prospectus and the related Prospectus Supplement(s), and in accordance with a duly authorized, executed and delivered
purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock or convertible Debt Securities in accordance
with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and nonassessable.
2. With
respect to the Preferred Stock offered under the Registration Statement, provided that (i) the Registration Statement and any required
post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required
by applicable laws have been delivered and filed as required by such laws; (ii) the terms and issuance of the Preferred Stock have
been duly authorized by all necessary corporate action on the part of the Company; (iii) the terms of the shares of Preferred Stock
and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation and Bylaws, do
not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates, if any,
for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the
purchasers thereof against payment therefor, then the Preferred Stock, when issued and sold as contemplated in the Registration Statement,
the Base Prospectus and the related Prospectus Supplement(s) and in accordance with a duly authorized, executed and delivered purchase,
underwriting or similar agreement, or upon conversion of any convertible Debt Securities in accordance with their terms, or upon exercise
of any Warrants in accordance with their terms, will be validly issued, fully paid and nonassessable.
3. With
respect to any series of the Debt Securities issued under the Indenture and offered under the Registration Statement, provided that (i) the
Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus
and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
Indenture has been duly authorized by the Company and the Trustee by all necessary corporate action; (iii) the Indenture in substantially
the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by the Company and the Trustee and has
been qualified under the Trust Indenture Act of 1939, as amended; (iv) the issuance and terms of the Debt Securities have been duly
authorized by the Company by all necessary corporate action; (v) the terms of the Debt Securities and of their issuance and sale
have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation and the Bylaws,
and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company;
and (vi) the notes representing the Debt Securities have been duly executed and delivered by the Company and authenticated by the
Trustee pursuant to the Indenture and delivered against payment therefor, then the Debt Securities, when issued and sold in accordance
with the Indenture and a duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon exercise of any
Warrants in accordance with their terms, will be valid and legally binding obligations of the Company, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and by general
equitable principles (regardless of whether considered in a proceeding at law or in equity).
Three
embarcadero center, 20th floor, san francisco, ca 94111 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
4. With
respect to the Warrants issued under the Warrant Agreements and offered under the Registration Statement, provided that (i) the Registration
Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and
any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
applicable Warrant Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action; (iii) the
applicable Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent; (iv) the issuance and terms
of the Warrants have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Warrants and of
their issuance and sale have been duly established in conformity with the applicable Warrant Agreement and as described in the Registration
Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation
and the Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vi) the Warrants have been duly executed and delivered by the Company and authenticated by the Warrant Agent
pursuant to the applicable Warrant Agreement and delivered against payment therefor, then the Warrants, when issued and sold as contemplated
in the Registration Statement, the Base Prospectus and the Prospectus Supplement(s) and in accordance with the applicable Warrant
Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and legally binding
obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors’ rights generally, and by general equitable principles (regardless of whether considered in a proceeding
at law or in equity).
5. The
Placement Shares, when issued and paid for in accordance with the Sales Agreement and as provided in the Sales Agreement Prospectus, will
be validly issued, fully paid and nonassessable.
*****
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Base
Prospectus and the Sales Agreement Prospectus. We further consent to the incorporation by reference of this opinion into any registration
statement filed pursuant to Rule 462(b) under the Securities Act with respect to additional Securities.
Our opinion set forth above is limited to the
matters expressly set forth in this letter, and no opinion is implied or may be inferred beyond the matters expressly stated. This opinion
speaks only as to law and facts in effect or existing as of the date hereof, and we undertake no obligation or responsibility to update
or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may
hereafter occur.
Very truly yours,
Cooley
LLP
| By: |
/s/ Kenneth Guernsey |
|
| |
Kenneth Guernsey |
|
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embarcadero center, 20th floor, san francisco, ca 94111 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Angion Biomedica Corp. of our report dated March 30, 2022, relating to the consolidated financial statements
of Angion Biomedica Corp. (the “Company”), appearing in the Annual Report on Form 10-K of the Company for the year ended
December 31, 2021, filed with the Securities and Exchange Commission. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ Moss Adams LLP
Seattle, Washington
May 16, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
ANGION BIOMEDICA CORP.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | |
Amount
Registered | | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum
Aggregate
Offering
Price | | |
Fee
Rate | | |
Amount of
Registration
Fee | | |
Carry
Forward
Form
Type | |
Carry
Forward
File
Number | |
Carry
Forward
Initial
effective
date |
|
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
| Newly Registered Securities |
| | |
Equity | |
Common stock, $0.01 par value per share | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | | |
| |
| |
|
|
|
| | |
Equity | |
Preferred stock, $0.01 par value per share | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | | |
| |
| |
|
|
|
| | |
Debt | |
Debt Securities | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | | |
| |
| |
|
|
|
| | |
Other | |
Warrants | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | | |
| |
| |
|
|
|
| | |
Other | |
Units | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | | |
| |
| |
|
|
|
| | |
Unallocated (Universal) Shelf | |
| |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
$ | 100,000,000 | | |
| 0.0000927 | | |
$ | 9,270.00 | | |
| |
| |
|
|
|
| Carry Forward Securities |
Carry
Forward
Securities | |
N/A | |
N/A | |
N/A | |
| N/A | | |
| | | |
| N/A | | |
| | | |
| | | |
N/A | |
N/A | |
N/A |
|
N/A |
| | |
Total Offering Amounts | | |
| | | |
| N/A | | |
| | | |
| N/A | | |
| |
| |
|
|
|
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| N/A | | |
| |
| |
|
|
|
| | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| N/A | | |
| |
| |
|
|
|
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
| N/A | | |
| |
| |
|
|
|
| (1) |
The amount to be registered consists of up to $100,000,000 of an indeterminate amount of common stock, preferred stock, debt securities, warrants and/or units. There is also being registered hereunder such currently indeterminate number of (i) shares of common stock or other securities of the registrant as may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) shares of preferred stock, common stock, debt securities or units as may be issued upon exercise of warrants registered hereby, as the case may be. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder. |
| (2) |
The proposed maximum aggregate offering price per unit will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
| (3) |
Estimated solely for purposes of computing the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. In no event will the aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement exceed $100,000,000. No separate consideration will be received for (i) common stock or other securities of the registrant that may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) preferred stock, common stock, debt securities or units that may be issued upon exercise of warrants registered hereby, as the case may be. |
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