As filed with the Securities and Exchange Commission on November 3, 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
THESEUS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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84-1747686
(I.R.S. Employer
Identification Number)
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Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, Massachusetts 02142
(857) 400-9491
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Timothy P. Clackson, Ph.D.
President and Chief Executive Officer
Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, Massachusetts 02142
(857) 400-9491
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Robert Puopolo, Esq.
Marishka DeToy, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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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 which 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 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 that covers the offering, issuance and sale by us of up to $300,000,000 of our debt securities, common stock, preferred stock, units and/or warrants; and
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a sales agreement prospectus that covers the offer and sale by us of shares of our common stock having an aggregate offering price of up to $100,000,000 from time to time under a Controlled Equity OfferingSM Sales Agreement, or sales agreement, with Cantor Fitzgerald & Co., or Cantor Fitzgerald.
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 specific terms of the securities to be issued and sold under the sales agreement are specified in the sales agreement prospectus that immediately follows the base prospectus. The up to $100,000,000 of common stock that may be offered, issued and sold from time to time under the sales agreement prospectus is included in the $300,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the sales agreement with Cantor Fitzgerald, any portion of the $100,000,000 included in the sales agreement prospectus that is not sold pursuant to the 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 sales agreement, the full $300,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated November 3, 2022
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may from time to time issue, in one or more series or classes, up to $300,000,000 in aggregate principal amount of our common stock, preferred stock, debt securities, warrants and/or units, in any combination, together or separately, in one or more offerings in amounts, at prices and on the terms that we will determine at the time of the offering and which will be set forth in a prospectus supplement to this prospectus and any related free writing prospectus.
We may offer these securities separately or together in units. Each time we sell securities described herein, we will provide prospective investors with a supplement to this prospectus that will specify the terms of the securities being offered. We may sell these securities to or through underwriters or dealers and also to other purchasers or through agents. We will set forth the names of any underwriters or agents, and any fees, conversions, or discount arrangements, in the applicable prospectus supplement. We may not sell any securities under this prospectus without delivery of the applicable prospectus supplement. You should read this document and any prospectus supplement or amendment carefully before you invest in our securities.
Our common stock is listed on the Nasdaq Global Select Market under the symbol “THRX.” On November 2, 2022, the closing price for our common stock, as reported on the Nasdaq Global Select Market, was $5.25 per share. Our principal executive offices are located at 314 Main Street, Cambridge, Massachusetts 02142.
Investing in these securities involves certain risks. See “Risk Factors” on page 7 of this prospectus as well as those included in any accompanying prospectus supplement and in the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase these securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. 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 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings for an aggregate initial offering price of up to $300,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. This prospectus, together with any accompanying prospectus supplement, contains important information you should know before investing in our securities, including important information about us and the securities being offered. You should read both this prospectus and the accompanying prospectus supplement together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation by Reference” beginning on page 28 of this prospectus.
You should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. We have not authorized any broker-dealer, salesperson or 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 assurances as to the reliability of, any information that others may provide to you. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in such accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates. This prospectus, any applicable prospectus supplement and the information incorporated herein or therein by reference contains market data, industry statistics and other data that have been obtained or compiled from information made available by independent third parties. We have not independently verified the accuracy and completeness of such data.
THIS PROSPECTUS MAY NOT BE USED TO OFFER AND SELL SECURITIES UNLESS IT IS ACCOMPANIED BY AN ADDITIONAL PROSPECTUS OR A PROSPECTUS SUPPLEMENT.
As used in this prospectus, unless the context otherwise requires, references to the “Theseus,” “company,” “we,” “us” and “our” refer to Theseus Pharmaceuticals, Inc, a Delaware corporation, and where appropriate, our subsidiaries.
Theseus Pharmaceuticals, Theseus, the Theseus logo and other registered or common law trade names, trademarks or service marks of Theseus appearing in this prospectus are the property of Theseus Pharmaceuticals, Inc. This prospectus contains additional trade names, trademarks, and service marks of other companies. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us, by these other companies. Other trademarks appearing in this prospectus are the property of their respective holders. Solely for convenience, our trademarks and tradenames referred to in this prospectus appear without the ® and ™ symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights to these trademarks and tradenames.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, includes 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, as amended, or the Exchange Act. Forward-looking statements relate to, among others, our plans, objectives and expectations for our business, operations and financial performance and condition, and can be identified by terminology such as “may,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “project,” “seek,” “endeavor,” “target,” “continue” and similar expressions that do not relate solely to historical matters. Forward-looking statements are based on management’s belief and assumptions and on information currently available to management. Although we believe that the expectations reflected in forward-looking statements are reasonable, such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements.
The following factors, among others, could cause actual results to differ materially from forward-looking statements:
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the ability of our preclinical studies and clinical trials to demonstrate safety and efficacy of product candidates and other positive results;
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the initiation, timing, progress, results and cost of our research and development programs and our current and future preclinical studies and clinical trials for current product candidates and other product candidates we may develop, including statements regarding the timing of initiation and completion of studies or trials and related preparatory work, the period during which the results of the studies or trials will become available, and our research and development programs;
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the timing, scope and likelihood of regulatory filings and approvals, including timing of investigational new drug applications and final approval by the U.S. Food and Drug Administration, or FDA, of our current product candidates and any future product candidates we may develop;
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our ability to develop and advance our current product candidates and development programs into, and successfully complete, clinical trials;
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our manufacturing, commercialization, and marketing capabilities and strategy;
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our plans relating to commercializing product candidates, if approved, including the geographic areas of focus and sales strategy;
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the need to hire additional personnel and our ability to attract and retain such personnel;
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the size of the market opportunity for our product candidates and development programs, including our estimates of the number of patients who suffer from the diseases we are targeting;
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our competitive position and the success of competing therapies that are or may become available;
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the beneficial characteristics, and the potential safety, efficacy and therapeutic effects of product candidates;
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the potential advantages of our integrated research and development approach;
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our ability to obtain and maintain regulatory approval of product candidates;
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our plans relating to the further development of product candidates, including additional indications we may pursue;
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existing regulations and laws and regulatory developments in the United States, Europe and other jurisdictions;
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our expectations regarding the impact of the COVID-19 pandemic on our business and the timing and enrollment of our clinical trials;
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our intellectual property position, including the scope of protection we are able to establish and maintain for intellectual property rights covering our current product candidates and other product
candidates we may develop, including the extensions of existing patent terms where available, the validity of intellectual property rights held by third parties, and our ability not to infringe, misappropriate or otherwise violate any third-party intellectual property rights;
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our continued reliance on third parties to conduct additional preclinical studies and clinical trials of product candidates;
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our ability to contract with third-party suppliers and manufacturers for the manufacture of product candidates for preclinical studies and clinical trials and their ability to perform timely and adequately as a result of supply chain constraints or otherwise;
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our ability to obtain, and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize product candidates;
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the pricing and reimbursement of current product candidates and other product candidates we may develop, if approved;
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the rate and degree of market acceptance and clinical utility of current product candidates and other product candidates we may develop;
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our estimates regarding expenses, future revenue, capital requirements and needs for additional financing;
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our financial performance;
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the period over which we estimate our existing cash, cash equivalents, and investments will be sufficient to fund our future operating expenses and capital expenditure requirements;
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our expectations regarding the period during which we will remain an emerging growth company under the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act;
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our anticipated use of our existing cash resources;
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our anticipated use of proceeds from an offering pursuant to this prospectus; and
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developments relating to our competitors, our industry or the economy.
We may from time-to-time provide estimates, projections and other information concerning our industry, our business and the markets for our programs and product candidates. Information that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and circumstances that are assumed in this information. Unless otherwise expressly stated, we obtained this industry, business, market, and other data from our own internal estimates and research as well as from reports, research surveys, studies, and similar data prepared by market research firms and other third parties, industry, medical and general publications, government data and similar sources. While management is responsible for the accuracy of the third-party information presented in this prospectus, and we are not aware of any misstatements regarding such third-party information, their estimates, in particular, as they relate to projections, involve numerous assumptions, are subject to risks and uncertainties and are subject to change based on various factors. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus and the documents that we reference therein and have filed with the SEC as exhibits thereto completely and with the understanding that our actual future results may be materially different from any future results expressed or implied by these forward-looking statements. These estimates involve numerous assumptions, are subject to risks and uncertainties and are subject to change based on various factors, including those discussed under “Item 1A: Risk Factors” and elsewhere in our most recent Annual Report on Form 10-K, our subsequent Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K, and the section of any accompanying prospectus supplement entitled “Risk Factors.”
OUR COMPANY
Overview
We are a clinical-stage biopharmaceutical company focused on improving the lives of cancer patients through the discovery, development and commercialization of transformative targeted therapies. Our development programs are designed to address drug resistance mutations in key driver oncogenes, which are mutated genes that cause cancer. Resistance mutations limit the efficacy of existing targeted therapies by rendering tumor cells unresponsive to drugs, and therefore present a critical challenge in cancer treatment today. Our initial focus is on developing the next generation of tyrosine kinase inhibitors, or TKIs, and is rooted in the critical role that tyrosine kinases play in the development of cancer. Despite the commercial success of approved TKIs, the development of drug resistance is a persistent limitation, narrowing the number of effective treatment options available to patients as they progress through subsequent lines of therapy.
Our goal is to develop “pan-variant” kinase inhibitors-inhibitors that target all major cancer causing and drug resistance mutations in clinically significant protein kinases. We believe that truly pan-variant inhibitors are required to effectively inhibit the heterogeneous mix of resistance mutations found in patients, and may also suppress the emergence of new mutations when used in earlier lines of therapy. To develop such inhibitors, we deploy our novel predictive resistance assay, or PRA, a highly differentiated cell-based method for testing TKIs that we believe is predictive for “pan-ness.”
Our lead product candidate, THE-630, is a pan-variant inhibitor of all major classes of activating and resistance mutations of the KIT kinase, or a pan-KIT inhibitor, for the treatment of gastrointestinal stromal tumors, or GIST, a type of cancer most often characterized by oncogenic activation of KIT. In January 2022, we announced that we had commenced dosing patients in a Phase 1/2 dose escalation and dose expansion clinical trial for the evaluation of THE-630 in patients with advanced GIST whose disease has developed resistance to prior KIT-targeting therapies. We expect to present initial data from the Phase 1 dose-escalation portion of the clinical trial in the second quarter of 2023, and to report additional data from the dose-escalation study in the fourth quarter of 2023. The objective of the Phase 1 dose-escalation portion of the study is to evaluate the safety, tolerability, and recommended phase 2 dose, or RP2D, of THE-630 in GIST patients who have received imatinib and one other TKI. Once the RP2D is determined, the study may transition directly into a Phase 2 portion consisting of three cohorts in patients with second line GIST, fifth line GIST, and a mix of third and fourth line GIST. The FDA has granted orphan drug designation to THE-630 for the treatment of GIST.
Our second program is THE-349, a fourth-generation inhibitor epidermal growth factor receptor, or EGFR, inhibitor program in non-small cell lung cancer, or NSCLC. THE-349 is designed to address treatment resistance to existing EGFR inhibitors by targeting the common activating mutations in exons 19 and 21 alone or in combination with the most frequently observed resistance mutations, T790M and C797X. Preclinical characterization of THE-349 as a fourth-generation EGFR, central nervous system-,or CNS active, and mutant-selective inhibitor with potent activity against single-, double-, and triple-mutant EGFR variants, including T790M and C797X, was shared in a poster presentation at the 34th EORTC-NCI-AACR, or ENA, Symposium in Barcelona on October 26-28, 2022. We have initiated Investigational New Drug, or IND-enabling studies, and expect to file an IND application for this program in the second half of 2023.
In addition to our lead programs, we have selectively prioritized additional small molecule research programs with established targets, following an assessment of unmet medical need. We intend to prioritize the first of our discovery programs, which is in lead optimization, by the end of 2022.
Our differentiated approach to addressing drug resistance is built on three strategic pillars: (1) targeting clinically-validated oncogenic drivers that have a clear unmet need; (2) integrating structure-guided drug design with our predictive screening methodologies, including our PRA; and (3) pursuing translationally-driven, biomarker-guided clinical development strategies. We believe our research and development approach, honed over years of our management team’s experience in developing approved therapeutics at ARIAD positions us well to develop a pipeline of drugs to address the challenges posed by resistance mutations.
Corporate History
We were initially formed in December 29, 2017. Our principal executive offices are located at 314 Main Street, Cambridge, Massachusetts 02142, and our telephone number is (857) 400-9491. Our website address is https://theseusrx.com/. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address as an inactive textual reference only. Our common stock is listed on the Nasdaq Global Select Market under the symbol “THRX.” The information on, or that can be accessed through, our website is not part of this prospectus and is not incorporated by reference herein.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We qualify as an “emerging growth company” as defined in the JOBS Act. As an emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. These provisions include:
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being permitted to only disclose two years of audited financial statements in addition to any required unaudited interim financial statements with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure;
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reduced disclosure about our executive compensation arrangements;
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not being required to hold advisory votes on executive compensation or to obtain stockholder approval of any golden parachute arrangements not previously approved; and
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an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting.
We may take advantage of these exemptions until the fifth anniversary of our initial public offering or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company on the date that is the earliest of (i) the last day of the fiscal year in which we have total annual gross revenue of $1.235 billion or more; (ii) the last day of our fiscal year following the fifth anniversary of the date of the completion of this offering; (iii) the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or (iv) the last day of the fiscal year in which we are deemed to be a large accelerated filer under the rules of the SEC which means the market value of our common stock that is held by non-affiliates exceeds $700 million as of the prior June 30th. We may choose to take advantage of some but not all of these exemptions. We have taken advantage of reduced reporting requirements in this prospectus. Accordingly, the information contained herein may be different from the information you receive from other public companies in which you hold stock. We are in the process of evaluating the benefits of relying on other exemptions and reduced reporting requirements under the JOBS Act. Subject to certain conditions, as an emerging growth company, we may rely on certain of these exemptions, including without limitation, providing an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act.
We are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller reporting companies until the fiscal year following the determination that our voting and non-voting common stock held by non-affiliates is more than $250 million measured on the last business day of our second fiscal quarter, or our annual revenues are more than $100 million during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is more than $700 million measured on the last business day of our second fiscal quarter.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider the risks set forth in our filings with the SEC that are incorporated by reference herein and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including our most recent Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K and the other documents we file with the SEC that are deemed incorporated by reference into this prospectus.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes unless otherwise indicated in the applicable prospectus supplement. General corporate purposes may include research and development and clinical development costs to support the advancement of our product candidates and the expansion of our research and development programs; working capital; capital expenditures; office expansion; and other general corporate purposes. We may also invest the net proceeds in short- and intermediate-term, investment-grade, interest-bearing instruments. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
SECURITIES THAT MAY BE OFFERED
This prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each security. The particular terms of any security will be described in the applicable prospectus supplement. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities described herein, we will provide prospective investors with a supplement to this prospectus that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered.
We may sell the securities to or through underwriters, dealers or agents, directly to purchasers or through a combination of any of these methods of sale or as otherwise set forth below under “Plan of Distribution.” We, as well as any agents acting on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Any prospectus supplement will set forth the names of any underwriters, dealers, agents or other entities involved in the sale of securities described in that prospectus supplement and any applicable fee, commission or discount arrangements with them.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is intended as a summary only and therefore is not a complete description of our capital stock. This description is based upon, and is qualified by reference to, our certificate of incorporation, our bylaws, and applicable provisions of Delaware corporate law. You should read our certificate of incorporation and our bylaws, in each case, as amended and supplemented, which are filed as exhibits to the registration statement of which this prospectus forms a part, for the provisions that are important to you.
Authorized capital stock
Our authorized capital stock consists of 500,000,000 shares of common stock, par value $0.0001 per share, and 50,000,000 shares of preferred stock, par value $0.0001 per share, all of which shares of preferred stock are undesignated.
Common stock
The holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the common stockholders. The holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive ratably any dividends declared by our board of directors out of funds legally available for that purpose, subject to any preferential dividend rights of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption or sinking fund provisions.
In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all assets remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock.
Preferred stock
Our board of directors has the authority, without further action by our stockholders, to issue up to 50,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common stock. Our board of directors also can 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 our stockholders. The issuance of our preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon our liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing a change in control of the company or other corporate action, or may adversely affect the market price of our common stock. No shares of preferred stock are outstanding, and we have no present plan to issue any shares of preferred stock.
Registration rights
Certain holders of our common stock are entitled to rights with respect to the registration of these securities under the Securities Act. These rights are provided under the terms of an amended and restated investors’ rights agreement between us and certain holders of our common stock. The amended and restated investors’ rights agreement includes demand registration rights, short-form registration rights and piggyback registration rights. All fees, costs and expenses of underwritten registrations under this agreement will be borne by us and all selling expenses, including underwriting discounts and selling commissions, will be borne by the holders of the shares being registered.
Demand registration rights
Certain holders of our common stock are entitled to demand registration rights. Under the terms of the amended and restated investors’ rights agreement, we will be required, upon the written request of
holders of at least a majority of the securities eligible for registration then outstanding to file a registration statement with respect to the securities eligible for registration then outstanding with an anticipated aggregate offering price of at least $15,000,000, we will be required to file a registration statement covering all securities eligible for registration that our stockholders request to be included in such registration. We are required to effect only two registrations pursuant to this provision of the amended and restated investors’ rights agreement.
Short-form registration rights
Pursuant to the amended and restated investors’ rights agreement, if we are eligible to file a registration statement on Form S-3, upon the written request of stockholders holding at least twenty percent of the securities eligible for registration then outstanding we will be required to file a Form S-3 registration restatement with respect to outstanding securities of such stockholders having an anticipated aggregate offering, net of related fees and expenses, of at least $10.0 million. We are required to effect only two registrations in any twelve month period pursuant to this provision of the amended and restated investors’ rights agreement. The right to have such shares registered on Form S-3 is further subject to other specified conditions and limitations.
Piggyback registration rights
Pursuant to the amended and restated investors’ rights agreement, if we register any of our securities either for our own account or for the account of other security holders, the holders of our common stock, including those issuable upon the conversion of our preferred stock, are entitled to include their securities eligible for registration in the registration. Subject to certain exceptions contained in the amended and restated investors’ rights agreement, the underwriters in their sole discretion may limit the number of shares included in the underwritten offering to the number of shares which we and the underwriters determine in our sole discretion will not jeopardize the success of the offering.
Indemnification
Our amended and restated investors’ rights agreement contains customary cross-indemnification provisions, under which we are obligated to indemnify holders of registrable securities in the event of material misstatements or omissions in the registration statement attributable to us, and they are obligated to indemnify us for material misstatements or omissions attributable to them.
Expiration of registration rights
The demand registration rights and short form registration rights granted under the amended and restated investors’ rights agreement will terminate on October 6, 2026 or at such earlier time when the holders’ shares may be sold without restriction pursuant to Rule 144 under the Securities Act within a three month period.
Expenses
Ordinarily, other than underwriting discounts and commissions, we are generally required to pay all expenses incurred by us related to any registration effected pursuant to the exercise of these registration rights. These expenses may include all registration and filing fees, printing expenses, fees and disbursements of our counsel, reasonable fees and disbursements of a counsel for the selling security holders and blue-sky fees and expenses.
Anti-takeover effects of Delaware law and certain provisions of our certificate of incorporation and bylaws
Some provisions of Delaware law, our certificate of incorporation and our bylaws include a number of provisions that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.
Board composition and filling vacancies
Our certificate of incorporation provides for the division of our board of directors into three classes serving staggered three-year terms, with one class being elected each year. Our certificate of incorporation also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of at least 66 2/3% of the shares then entitled to vote at an election of directors. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of our board, may only be filled by the affirmative vote of a majority of our directors then in office even if less than a quorum. The classification of directors, together with the limitations on removal of directors and treatment of vacancies, has the effect of making it more difficult for stockholders to change the composition of our board of directors.
No written consent of stockholders
Our certificate of incorporation provides that all stockholder actions are required to be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written consent in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment of our bylaws or removal of directors by our stockholders without holding a meeting of stockholders.
Meetings of stockholders
Our certificate of incorporation and bylaws provide that only a majority of the members of our board of directors then in office may call special meetings of stockholders and only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted at an annual meeting of stockholders to those matters properly brought before the meeting.
Advance notice requirements
Our bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting.
Amendment to certificate of incorporation and bylaws
Any amendment of our certificate of incorporation must first be approved by a majority of our board of directors, and if required by law or our certificate of incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment and a majority of the outstanding shares of each class entitled to vote thereon as a class, except that the amendment of the provisions relating to board composition, limitation of liability, indemnification, stockholder action, the amendment of our bylaws and certificate of incorporation, forum selection, and personal jurisdiction must be approved by not less than two-thirds of the outstanding shares entitled to vote on the amendment, and not less than two-thirds of the outstanding shares of each class entitled to vote thereon as a class. Our bylaws may be amended by the affirmative vote of a majority of the directors then in office, subject to any limitations set forth in the bylaws; and may also be amended by the affirmative vote of at least two-thirds of the outstanding shares entitled to vote on the amendment, voting together as a single class.
Undesignated preferred stock
Our certificate of incorporation provides for 50,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise.
For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests of our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In this regard, our certificate of incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.
Delaware anti-takeover statute
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or
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at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
Choice of forum
Our certificate of incorporation provides 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 sole and exclusive forum for : (1) any derivative action or proceeding brought on our behalf; (2) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, stockholder or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (3) any action arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws (as the foregoing may be amended, modified, supplement, and/or restated from time to time); (4) any action to interpret, apply, enforce or determine the validity of our certificate of incorporation or bylaws, or (5) any
action asserting a claim governed by the internal affairs doctrine, or the Delaware Forum Provision. The Delaware Forum Provision will not apply to any causes of action arising under the Exchange Act. Our certificate of incorporation further provides that, to the fullest extent permitted by law, unless we consent in writing to an alternative forum, the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, or the Federal Forum Provision. In addition, our certificate of incorporation provides that any person or entity purchasing or otherwise acquiring any interest in shares of our common stock is deemed to have notice of and consented to the foregoing Delaware Forum Provision and Federal Forum Provision; provided, however, that stockholders cannot and will not be deemed to have waived our compliance with the U.S. federal securities laws and the rules and regulations thereunder.
We recognize that the Delaware Forum Provision and the Federal Forum Provision may impose additional litigation costs on stockholders in pursuing any such claims. Additionally, the forum selection clauses in our certificate of incorporation may limit our stockholders’ ability to bring a claim in a judicial forum that they find favorable for disputes with us or our directors, officers or employees, which may discourage the filing of lawsuits against us and our directors, officers and employees even though an action, if successful, might benefit our stockholders. In addition, while the Delaware Supreme Court and other states courts have upheld the validity of federal forum selection provisions purporting to require claims under the Securities Act be brought in federal court, there is uncertainty as to whether other courts will enforce our Federal Forum Provision. If the Federal Forum Provision is found inapplicable to, or unenforceable, we may incur additional costs associated with resolving such matters The Federal Forum provision may also impose additional litigation costs on stockholders who assert that the provision is not enforceable or invalid The Court of Chancery of the State of Delaware and the federal district courts of the United States may also reach different judgments or results than would other courts, including courts where a stockholder considering an action may be located or would otherwise choose to bring the action, and such judgments may be more or less favorable to us than our stockholders.
Stock exchange listing
Our common stock is listed on the Nasdaq Global Select Market under the trading symbol “THRX”.
Transfer agent and registrar
The Transfer Agent and Registrar for our common stock is Computershare Trust Company, N.A.
DESCRIPTION OF DEBT SECURITIES
We may offer debt securities which may be senior or subordinated. We refer to senior debt securities and subordinated debt securities collectively as debt securities. Each series of debt securities may have different terms. The following description summarizes the general terms and provisions of the debt securities. We will describe the specific terms of the debt securities and the extent, if any, to which the general provisions summarized below apply to any series of debt securities in the prospectus supplement relating to the series and any applicable free writing prospectus that we authorize to be delivered.
We may issue senior debt securities from time to time, in one or more series under a senior indenture to be entered into between us and a senior trustee to be named in a prospectus supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time, in one or more series, under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a prospectus supplement, which we refer to as the subordinated trustee. The forms of senior indenture and subordinated indenture are filed as exhibits to the registration statement of which this prospectus forms a part. Together, the senior indenture and the subordinated indenture are referred to as the indentures and, together, the senior trustee and the subordinated trustee are referred to as the trustees. This prospectus briefly outlines some of the provisions of the indentures. The following summary of the material provisions of the indentures is qualified in its entirety by the provisions of the indentures, including definitions of certain terms used in the indentures. Wherever we refer to particular sections or defined terms of the indentures, those sections or defined terms are incorporated by reference in this prospectus or the applicable prospectus supplement. You should review the indentures that are filed as exhibits to the registration statement of which this prospectus forms a part for additional information. As used in this prospectus, the term “debt securities” includes the debt securities being offered by this prospectus and all other debt securities issued by us under the indentures.
General
This indentures:
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do not limit the amount of debt securities that we may issue;
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allow us to issue debt securities in one or more series;
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do not require us to issue all of the debt securities of a series at the same time; and
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allow us to reopen a series to issue additional debt securities without the consent of the holders of the debt securities of such series.
Unless otherwise provided in the applicable prospectus supplement, the senior debt securities will be unsubordinated obligations and will rank equally with all of our other unsecured and unsubordinated indebtedness. Payments on the subordinated debt securities will be subordinated to the prior payment in full of all of our senior indebtedness, as described under “Subordination” and in the applicable prospectus supplement.
Each indenture provides that we may, but need not, designate more than one trustee under an indenture. Any trustee under an indenture may resign or be removed and a successor trustee may be appointed to act with respect to the series of debt securities administered by the resigning or removed trustee. If two or more persons are acting as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under the applicable indenture separate and apart from the trust administered by any other trustee. Except as otherwise indicated in this prospectus, any action described in this prospectus to be taken by each trustee may be taken by each trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the applicable indenture.
The prospectus supplement for each offering will provide the following terms, where applicable:
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the title of the debt securities and whether they are senior or subordinated;
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any limit upon the aggregate principal amount of the debt securities of that series;
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the date or dates on which the principal of the debt securities of the series is payable;
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the price at which the debt securities will be issued, expressed as a percentage of the principal and, if 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 of ours or the method by which any such portion shall be determined;
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the rate or rates at which the debt securities of the series shall bear interest or the manner of calculation of such rate or rates, if any;
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the date or dates from which interest will accrue, the interest payment dates on which such interest will be payable or the manner of determination of such interest payment dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such interest payment dates or the manner of determination of such record dates;
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the right, if any, to extend the interest payment periods and the duration of such extension;
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the period or periods within which, the price or prices at which and the terms and conditions upon which debt securities of the series may be redeemed, converted or exchanged, in whole or in part;
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our obligation, if any, to redeem or purchase debt securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, debt securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the form of the debt securities of the series including the form of the Certificate of Authentication for such series;
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if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, the denominations in which the debt securities of the series shall be issuable;
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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 debt security or global debt securities; the terms and conditions, if any, upon which such global debt security or global debt securities may be exchanged in whole or in part for other individual debt securities; and the depositary for such global debt security or global debt securities;
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whether the debt securities will be convertible into or exchangeable for common stock or other securities of ours or any other Person and, if so, 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, and the applicable conversion or exchange period;
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any additional or alternative events of default to those set forth in the indenture;
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any additional or alternative covenants to those set forth in the indenture;
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the currency or currencies including composite currencies, in which payment of the principal of (and premium, if any) and interest, if any, on such debt securities shall be payable (if other than the currency of the United States of America), which unless otherwise specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private debts;
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if the principal of (and premium, if any), or interest,, if any, on such debt securities is to be payable, at our election or at the election of any holder thereof, in a coin or currency other than that in which such debt securities are stated to be payable, then the period or periods within which, and the terms and conditions upon which, such election may be made;
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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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additional or alternative provisions, if any, related to defeasance and discharge of the offered debt securities than those set forth in the indenture;
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the applicability of any guarantees;
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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 terms of the debt securities (which may supplement, modify or delete any provision of the indenture insofar as it applies to such series).
We may issue debt securities that provide for less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities. We refer to any such debt securities throughout this prospectus as “original issue discount securities.”
We will provide you with more information in the applicable prospectus supplement regarding any deletions, modifications, or additions to the events of default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection.
Payment
Unless otherwise provided in the applicable prospectus supplement, the principal of, and any premium or make-whole amount, and interest on, any series of the debt securities will be payable by mailing a check to the address of the person entitled to it as it appears in the applicable register for the debt securities or by wire transfer of funds to that person at an account maintained within the United States.
All monies that we pay to a paying agent or a trustee for the payment of the principal of, and any premium, or interest on, any debt security will be repaid to us if unclaimed at the end of two years after the obligation underlying payment becomes due and payable. After funds have been returned to us, the holder of the debt security may look only to us for payment, without payment of interest for the period which we hold the funds.
Merger, Consolidation or Sale of Assets
The indentures provide that we may, without the consent of the holders of any outstanding debt securities, (i) consolidate with, (ii) sell, lease or convey all or substantially all of our assets to, or (iii) merge with or into, any other entity provided that:
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either we are the continuing entity, or the successor entity, if other than us, assumes the obligations (a) to pay the principal of, and any premium, and interest on, all of the debt securities and (b) to duly perform and observe all of the covenants and conditions contained in the applicable indenture; and in the event the debt securities are convertible into or exchangeable for common stock or other securities of ours, such successor entity will, by such supplemental indenture, make provision so that the holders of debt securities of that series shall thereafter be entitled to receive upon conversion or exchange of such debt securities the number of securities or property to which a holder of the number of common stock or other securities of ours deliverable upon conversion or exchange of those debt securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition; and
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an officers’ certificate and legal opinion covering such conditions are delivered to each applicable trustee.
Events of Default, Notice and Waiver
Unless the applicable prospectus supplement states otherwise, when we refer to “events of default” as defined in the indentures with respect to any series of debt securities, we mean:
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default in the payment of any installment of interest on any debt security of such series continuing for 90 days unless such date has been extended or deferred;
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default in the payment of principal of, or any premium on, any debt security of such series when due and payable unless such date has been extended or deferred;
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default in the performance or breach of any covenant or warranty in the debt securities or in the indenture by us continuing for 90 days after written notice described below;
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bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us; and
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any other event of default provided with respect to a particular series of debt securities.
If an event of default (other than an event of default described in the fourth bullet point above) occurs and is continuing with respect to debt securities of any series outstanding, then the applicable trustee or the holders of 25% or more in principal amount of the debt securities of that series will have the right to declare the principal amount of, and accrued interest on, all the debt securities of that series to be due and payable. If an event of default described in the fourth bullet point above occurs, the principal amount of, and accrued interest on, all the debt securities of that series will automatically become and will be immediately due and payable without any declaration or other act on the part of the trustee or the holders of the debt securities. However, at any time after such a declaration of acceleration has been made, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, the holders of at least a majority in principal amount of outstanding debt securities of such series or of all debt securities then outstanding under the applicable indenture may rescind and annul such declaration and its consequences if:
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we have deposited with the applicable trustee all required payments of the principal, any premium, interest and, to the extent permitted by law, interest on overdue installment of interest, plus applicable fees, expenses, disbursements and advances of the applicable trustee; and
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all events of default, other than the non-payment of accelerated principal, or a specified portion thereof, and any premium, have been cured or waived.
The indentures provide that holders of debt securities of any series may not institute any proceedings, judicial or otherwise, with respect to such indenture or for any remedy under the indenture, unless the trustee fails to act for a period of 90 days after the trustee has received a written request to institute proceedings in respect of an event of default from the holders of 25% or more in principal amount of the outstanding debt securities of such series, as well as an offer of indemnity reasonably satisfactory to the trustee. However, this provision will not prevent any holder of debt securities from instituting suit for the enforcement of payment of the principal of, and any premium, and interest on, such debt securities at the respective due dates thereof.
The indentures provide that, subject to provisions in each indenture relating to its duties in the case of a default, a trustee has no obligation to exercise any of its rights or powers at the request or direction of any holders of any series of debt securities then outstanding under the indenture, unless the holders have offered to the trustee reasonable security or indemnity. The holders of at least a majority in principal amount of the outstanding debt securities of any series or of all debt securities then outstanding under an indenture shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon such trustee. However, a trustee may refuse to follow any direction which:
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is in conflict with any law or the applicable indenture;
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may involve the trustee in personal liability; or
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may be unduly prejudicial to the holders of debt securities of the series not joining the proceeding.
Within 120 days after the close of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of our several specified officers, stating whether or not that officer has knowledge of any default under the applicable indenture. If the officer has knowledge of any default, the notice must specify the nature and status of the default.
Modification of the Indentures
Subject to certain exceptions, the indentures may be amended with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of all series affected by such amendment (including consents obtained in connection with a tender offer or exchange for the debt securities of such series).
We and the applicable trustee may make modifications and amendments of an indenture without the consent of any holder of debt securities for any of the following purposes:
to cure any ambiguity, defect, or inconsistency in the applicable indenture or in the Securities of any series;
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to comply with the covenant described above under “Merger, Consolidation or Sale of Assets”;
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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 events of default for the benefit of the holders of all or any series of debt securities;
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to add the covenants, restrictions, conditions or provisions relating to us for the benefit of the holders of all or any series of debt securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of debt 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 in the applicable indenture conferred upon us;
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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 applicable indenture;
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to make any change that does not adversely affect the rights of any holder of notes under the applicable indenture 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 in the applicable indenture, to establish the form of any certifications required to be furnished pursuant to the terms of the applicable indenture or any series of debt securities under the applicable indenture, 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 the applicable indenture by a successor trustee or to appoint a separate trustee with respect to any series;
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to comply with any requirements of the SEC or any successor in connection with the qualification of the indenture under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act; or
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to conform the applicable indenture to this “Description of Debt Securities” or any other similarly titled section in any prospectus supplement or other offering document relating to a series of debt securities.
Subordination
Payment by us of the principal of, premium, if any, and interest on any series of subordinated debt securities issued under the subordinated indenture will be subordinated to the extent set forth in an indenture supplemental to the subordinated indenture relating to such series.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus supplement, the indentures allow us to discharge our obligations to holders of any series of debt securities issued under any indenture when:
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either (i) all securities of such series have already been delivered to the applicable trustee for cancellation; or (ii) all securities of such series have not already been delivered to the applicable trustee for cancellation but (a) have become due and payable, (b) will become due and payable within one year, or (c) if redeemable at our option, are to be redeemed within one year, and we have irrevocably deposited with the applicable trustee, in trust, funds in such currency or currencies, or governmental obligations in an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and any premium, and interest to the date of such deposit if such debt securities have become due and payable or, if they have not, to the stated maturity or redemption date;
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we have paid or caused to be paid all other sums payable.
Unless otherwise provided in the applicable prospectus supplement, the indentures provide that, upon our irrevocable deposit with the applicable trustee, in trust, of an amount, in such currency or currencies in which such debt securities are payable at stated maturity, or government obligations, or both, applicable to such debt securities, which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of, and any premium or make-whole amount, and interest on, such debt securities, and any mandatory sinking fund or analogous payments thereon, on the scheduled due dates therefor, the issuing company shall be released from its obligations with respect to such debt securities under the applicable indenture or, if provided in the applicable prospectus supplement, its obligations with respect to any other covenant, and any omission to comply with such obligations shall not constitute an event of default with respect to such debt securities.
The applicable prospectus supplement may further describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the debt securities are convertible into common stock or other securities of ours will be set forth in the applicable prospectus supplement. The terms will include whether the debt securities are convertible into shares of common stock or other securities of ours, the conversion price, or manner of calculation thereof, the conversion period, provisions as to whether conversion will be at the issuing company’s option or the option of the holders, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of the debt securities and any restrictions on conversion.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement, which includes this prospectus.
General
We may issue warrants for the purchase of common stock, preferred stock in one or more series. We may issue warrants independently or together with common stock, preferred stock, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the series of warrants, 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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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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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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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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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement 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 periods during which, and places at which, the warrants are exercisable;
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the manner of exercise;
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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 agreement and warrants may be modified;
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federal income tax consequences 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.
DESCRIPTION OF UNITS
We may issue units comprised of shares of common stock, shares of preferred stock and warrants in any combination. We may issue units in such amounts and in as many distinct series as we wish. This section outlines certain provisions of the units that we may issue. If we issue units, they will be issued under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. The information described in this section may not be complete in all respects and is qualified entirely by reference to the unit agreement with respect to the units of any particular series. The specific terms of any series of units offered will be described in the applicable prospectus supplement. If so described in a particular supplement, the specific terms of any series of units may differ from the general description of terms presented below. We urge you to read any prospectus supplement related to any series of units we may offer, as well as the complete unit agreement and unit certificate that contain the terms of the units. If we issue units, forms of unit agreements and unit certificates relating to such units will be incorporated by reference as exhibits to the registration statement, which includes this prospectus.
Each unit that we may issue will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:
•
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
•
any provisions of the governing unit agreement;
•
the price or prices at which such units will be issued;
•
the applicable United States federal income tax considerations relating to the units;
•
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
•
any other terms of the units and of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital Stock,” and “Description of Warrants” will apply to the securities included in each unit, to the extent relevant and as may be updated in any prospectus supplements.
Issuance in Series
We may issue units in such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to all series. Most of the financial and other specific terms of a particular series of units will be described in the applicable prospectus supplement.
Unit Agreements
We will issue the units under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. We may add, replace or terminate unit agents from time to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under that agreement in the applicable prospectus supplement.
The following provisions will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement:
Modification without Consent
We and the applicable unit agent may amend any unit or unit agreement without the consent of any holder:
•
to cure any ambiguity; any provisions of the governing unit agreement that differ from those described below;
•
to correct or supplement any defective or inconsistent provision; or
•
to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect.
We do not need any approval to make changes that affect only units to be issued after the changes take effect. We may also make changes that do not adversely affect a particular unit in any material respect, even if they adversely affect other units in a material respect. In those cases, we do not need to obtain the approval of the holder of the unaffected unit; we need only obtain any required approvals from the holders of the affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with respect to any particular unit unless we obtain the consent of the holder of that unit, if the amendment would:
•
impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the consent of the holder to any changes that would impair the exercise or enforcement of that right; or
•
reduce the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class, or the applicable unit agreement with respect to that series or class, as described below.
Any other change to a particular unit agreement and the units issued under that agreement would require the following approval:
•
If the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a majority of the outstanding units of that series; or
•
If the change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of all outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for this purpose.
These provisions regarding changes with majority approval also apply to changes affecting any securities issued under a unit agreement, as the governing document.
In each case, the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture Act
No unit agreement will be qualified as an indenture, and no unit agent will be required to qualify as a trustee, under the Trust Indenture Act. Therefore, holders of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.
Mergers and Similar Transactions Permitted; No Restrictive Covenants or Events of Default
The unit agreements will not restrict our ability to merge or consolidate with, or sell our assets to, another corporation or other entity or to engage in any other transactions. If at any time we merge or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity will succeed to and assume our obligations under the unit agreements. We will then be relieved of any further obligation under these agreements.
The unit agreements will not include any restrictions on our ability to put liens on our assets, nor will they restrict our ability to sell our assets. The unit agreements also will not provide for any events of default or remedies upon the occurrence of any events of default.
Governing Law
The unit agreements and the units will be governed by New York law.
Form, Exchange and Transfer
We will issue each unit in global — i.e., book-entry — form only. Units in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of all the units represented by the global security. Those who own beneficial interests in a unit will do so through participants in the depositary’s system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We will describe book-entry securities, and other terms regarding the issuance and registration of the units in the applicable prospectus supplement.
Each unit and all securities comprising the unit will be issued in the same form.
If we issue any units in registered, non-global form, the following will apply to them.
The units will be issued in the denominations stated in the applicable prospectus supplement. Holders may exchange their units for units of smaller denominations or combined into fewer units of larger denominations, as long as the total amount is not changed.
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Holders may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated units at that office. We may appoint another entity to perform these functions or perform them ourselves.
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Holders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity before replacing any units.
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If we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities that are or may be selected for early settlement.
Only the depositary will be entitled to transfer or exchange a unit in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving notices with respect to our units, we will follow the procedures as described in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities offered through this prospectus and any accompanying prospectus supplement, if required, in any of the following ways: (i) to or through underwriters or dealers, (ii) directly to purchasers, including our affiliates, (iii) through agents, (iv) in an “at the market offering,” within the meaning of Rule 415(a)(4) of the Securities Act or (v) through a combination of any of these methods or any other method permitted by law. The securities may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices, either:
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on or through the facilities of the Nasdaq Global Select Market or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or
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to or through a market maker otherwise than on the Nasdaq Global Select Market or such other securities exchanges or quotation or trading services.
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. In the prospectus supplement relating to such offering, we will name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay to any such agent. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the following:
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the name of the agent or any underwriters;
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the public offering or purchase price;
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any discounts and commissions to be allowed or paid to the agent or underwriters;
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all other items constituting underwriting compensation;
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any discounts and commissions to be allowed or paid to dealers; and
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any exchanges on which the securities will be listed.
If any underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement, sales agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
In connection with the offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional underwriting commission, as may be set forth in the accompanying prospectus supplement. If we grant any such option, the terms of such option will be set forth in the prospectus supplement for such securities.
If a dealer is used in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer, who may be deemed to be an “underwriter” as that term is defined in the Securities Act, may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby
underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
Offered securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreement, if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters in connection with their remarketing of offered securities.
Certain agents, underwriters and dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage in other transactions with, or perform services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale
transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
The securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
Any underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
The anticipated date of delivery of offered securities will be set forth in the applicable prospectus supplement relating to each offer.
LEGAL MATTERS
Unless the applicable prospectus supplement indicates otherwise, the validity of the securities in respect of which this prospectus is being delivered will be passed upon by Goodwin Procter LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Theseus Pharmaceuticals, Inc. appearing in Theseus Pharmaceuticals, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2021, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed document will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
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 www.sec.gov and on our investor website at www.theseusrx.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
We have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will furnish a full statement of the relative rights and preferences of each class or series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies should be directed to Theseus Pharmaceuticals, Inc., 314 Main Street, Cambridge, Massachusetts 02142, Attention: Bradford Dahms.
This prospectus is part of a registration statement on Form S-3 we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information about us and our consolidated subsidiaries and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) between the date of the initial registration statement and the effectiveness of the registration statement and following the effectiveness of the registration statement until the offering of the securities under the registration statement is terminated or completed:
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Annual Report on Form 10-K for the fiscal year ended December 31, 2021, or the Annual Report, filed with the SEC on March 10, 2022;
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The information specifically incorporated by reference into our Annual Report from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed with the SEC on April 25, 2022;
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Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022, June 30, 2022 and September 30, 2022, filed with the SEC on May 12, 2022, August 11, 2022 and November 3, 2022, respectively;
•
•
The description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on October 1, 2021 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description, including the description of our common stock included as Exhibit 4.2 to our Annual Report.
In addition, all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus. Notwithstanding the foregoing, unless specifically stated to the contrary, information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus or the registration statement of which this prospectus is a part.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Theseus Pharmaceuticals, Inc.
314 Main Street Cambridge, Massachusetts 02142
(857) 400-9491
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2022
The information in this 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 of which this prospectus forms a part filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.
Subject to completion, dated November 3, 2022
PROSPECTUS
Up to $100,000,000
Common Stock
We have entered into a Controlled Equity OfferingSM Sales Agreement, or sales agreement, with Cantor Fitzgerald & Co., or Cantor Fitzgerald, dated November 3, 2022, relating to the sale of shares of our common stock, $0.0001 par value per share. In accordance with the terms of the sales agreement, pursuant to this prospectus, we may offer and sell shares of our common stock having an aggregate offering price of up to $100,000,000 from time to time through Cantor Fitzgerald, acting as our sales agent.
Our common stock is listed on the Nasdaq Global Select Market under the symbol “THRX.” On November 2, 2022, the closing sale price of our common stock on the Nasdaq Global Select Market was $5.25 per share.
Sales of our common stock, if any, under this prospectus will be made by any method permitted that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Cantor Fitzgerald is not required to sell any specific number or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Cantor Fitzgerald and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Cantor Fitzgerald will be entitled to compensation under the terms of the sales agreement at a commission rate of up to 3.0% of the gross proceeds of any shares of common stock sold under the sales agreement. In connection with the sale of our common stock on our behalf, Cantor Fitzgerald will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor Fitzgerald will be deemed to be underwriting commissions or discounts. See “Plan of Distribution” beginning on page S-18 for additional information regarding the compensation to be paid to Cantor Fitzgerald. We have also agreed to provide indemnification and contribution to Cantor Fitzgerald against certain liabilities, including liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended, or the Exchange Act.
We are an “emerging growth company” and a “smaller reporting company” under the federal securities laws and, as such, we have elected to comply with certain reduced public company reporting requirements for this prospectus and for future filings. See “Prospectus Summary — Implications of Being an Emerging Growth Company and a Smaller Reporting Company.”
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-9 of this prospectus and under similar headings in the other documents that are incorporated by reference into this prospectus concerning factors you should consider before investing in our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2022.
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 registration statement, we may offer shares of our common stock having an aggregate offering price of up to $300,000,000. Under this prospectus, we may offer shares of our common stock having an aggregate offering price of up to $100,000,000 from time to time at prices and on terms to be determined by market conditions at the time of offering. The $100,000,000 of shares of our common stock that may be sold under this prospectus are included in the $300,000,000 of shares of common stock that may be sold under the registration statement.
Before buying any of the shares of common stock offered hereby, we urge you to read carefully this prospectus, together with the information incorporated herein by reference as described below under the heading “Incorporation of Certain Information by Reference.” These documents contain important information that you should consider when making your investment decision. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference in this prospectus that was filed with the SEC before the date of this prospectus, on the other hand, you should rely on the information in this prospectus, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus — the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. We have not, and Cantor Fitzgerald has not, authorized any broker-dealer, salesperson or other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We and Cantor Fitzgerald take no responsibility for, and can provide no assurances as to the reliability of, any information that others may provide to you. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in such accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates. This prospectus, any applicable prospectus supplement and the information incorporated herein or therein by reference contains market data, industry statistics and other data that have been obtained or compiled from information made available by independent third parties. We have not independently verified the accuracy and completeness of such data.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless otherwise stated, all references in this prospectus to “we,” “us,” “our,” “Theseus,” “the Company” and similar designations refer, collectively, to Theseus Pharmaceuticals, Inc., a Delaware corporation, and, where appropriate, our subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, includes 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, as amended, or the Exchange Act. Forward-looking statements relate to, among others, our plans, objectives and expectations for our business, operations and financial performance and condition, and can be identified by terminology such as “may,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “project,” “seek,” “endeavor,” “target,” “continue” and similar expressions that do not relate solely to historical matters. Forward-looking statements are based on management’s belief and assumptions and on information currently available to management. Although we believe that the expectations reflected in forward-looking statements are reasonable, such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements.
The following factors, among others, could cause actual results to differ materially from forward-looking statements:
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the ability of our preclinical studies and clinical trials to demonstrate safety and efficacy of product candidates and other positive results;
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the initiation, timing, progress, results and cost of our research and development programs and our current and future preclinical studies and clinical trials for current product candidates and other product candidates we may develop, including statements regarding the timing of initiation and completion of studies or trials and related preparatory work, the period during which the results of the studies or trials will become available, and our research and development programs;
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the timing, scope and likelihood of regulatory filings and approvals, including timing of investigational new drug applications and final approval by the U.S. Food and Drug Administration, or FDA, of our current product candidates and any future product candidates we may develop;
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our ability to develop and advance our current product candidates and development programs into, and successfully complete, clinical trials;
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our manufacturing, commercialization, and marketing capabilities and strategy;
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our plans relating to commercializing product candidates, if approved, including the geographic areas of focus and sales strategy;
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the need to hire additional personnel and our ability to attract and retain such personnel;
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the size of the market opportunity for our product candidates and development programs, including our estimates of the number of patients who suffer from the diseases we are targeting;
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our competitive position and the success of competing therapies that are or may become available;
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the beneficial characteristics, and the potential safety, efficacy and therapeutic effects of product candidates;
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the potential advantages of our integrated research and development approach;
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our ability to obtain and maintain regulatory approval of product candidates;
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our plans relating to the further development of product candidates, including additional indications we may pursue;
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existing regulations and laws and regulatory developments in the United States, Europe and other jurisdictions;
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our expectations regarding the impact of the COVID-19 pandemic on our business and the timing and enrollment of our clinical trials;
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our intellectual property position, including the scope of protection we are able to establish and maintain for intellectual property rights covering our current product candidates and other product
candidates we may develop, including the extensions of existing patent terms where available, the validity of intellectual property rights held by third parties, and our ability not to infringe, misappropriate or otherwise violate any third-party intellectual property rights;
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our continued reliance on third parties to conduct additional preclinical studies and clinical trials of product candidates;
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our ability to contract with third-party suppliers and manufacturers for the manufacture of product candidates for preclinical studies and clinical trials and their ability to perform timely and adequately as a result of supply chain constraints or otherwise;
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our ability to obtain, and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize product candidates;
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the pricing and reimbursement of current product candidates and other product candidates we may develop, if approved;
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the rate and degree of market acceptance and clinical utility of current product candidates and other product candidates we may develop;
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our estimates regarding expenses, future revenue, capital requirements and needs for additional financing;
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our financial performance;
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the period over which we estimate our existing cash, cash equivalents, and investments will be sufficient to fund our future operating expenses and capital expenditure requirements;
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our expectations regarding the period during which we will remain an emerging growth company under the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act;
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our anticipated use of our existing cash resources;
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our anticipated use of proceeds from this offering, if any; and
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developments relating to our competitors, our industry or the economy.
We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we make. We have included important factors in the cautionary statements included in this prospectus, including the documents that we incorporate by reference and in Part I, Item 1A “Risk Factors” of our most recent annual report on Form 10-K filed with the SEC, which is incorporated by reference in this prospectus, and in the “Risk Factors” section of this prospectus, that could cause actual results or events to differ materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures, collaborations or investments that we may make. You should read this prospectus, including the documents that we incorporate by reference, completely and with the understanding that our actual future results may be materially different from what we expect. We do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
PROSPECTUS SUMMARY
This summary highlights selected information about us and this offering and does not contain all of the information that you should consider before investing in our common stock. You should read this prospectus carefully, especially the risks of investing in our common stock discussed under “Risk Factors” beginning on page S-9 of this prospectus and in Part I, Item 1A “Risk Factors” of our most recent annual report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, which is incorporated by reference in this prospectus, along with our consolidated financial statements and notes to those consolidated financial statements and the other information incorporated by reference in this prospectus, before making an investment decision.
Company Overview
We are a clinical-stage biopharmaceutical company focused on improving the lives of cancer patients through the discovery, development and commercialization of transformative targeted therapies. Our development programs are designed to address drug resistance mutations in key driver oncogenes, which are mutated genes that cause cancer. Resistance mutations limit the efficacy of existing targeted therapies by rendering tumor cells unresponsive to drugs, and therefore present a critical challenge in cancer treatment today. Our initial focus is on developing the next generation of tyrosine kinase inhibitors, or TKIs, and is rooted in the critical role that tyrosine kinases play in the development of cancer. Despite the commercial success of approved TKIs, the development of drug resistance is a persistent limitation, narrowing the number of effective treatment options available to patients as they progress through subsequent lines of therapy.
Our goal is to develop “pan-variant” kinase inhibitors-inhibitors that target all major cancer causing and drug resistance mutations in clinically significant protein kinases. We believe that truly pan-variant inhibitors are required to effectively inhibit the heterogeneous mix of resistance mutations found in patients, and may also suppress the emergence of new mutations when used in earlier lines of therapy. To develop such inhibitors, we deploy our novel predictive resistance assay, or PRA, a highly differentiated cell-based method for testing TKIs that we believe is predictive for “pan-ness.”
Our lead product candidate, THE-630, is a pan-variant inhibitor of all major classes of activating and resistance mutations of the KIT kinase, or a pan-KIT inhibitor, for the treatment of gastrointestinal stromal tumors, or GIST, a type of cancer most often characterized by oncogenic activation of KIT. In January 2022, we announced that we had commenced dosing patients in a Phase 1/2 dose escalation and dose expansion clinical trial for the evaluation of THE-630 in patients with advanced GIST whose disease has developed resistance to prior KIT-targeting therapies. We expect to present initial data from the Phase 1 dose-escalation portion of the clinical trial in the second quarter of 2023, and to report additional data from the dose-escalation study in the fourth quarter of 2023. The objective of the Phase 1 dose-escalation portion of the study is to evaluate the safety, tolerability, and recommended phase 2 dose, or RP2D, of THE-630 in GIST patients who have received imatinib and one other TKI. Once the RP2D is determined, the study may transition directly into a Phase 2 portion consisting of three cohorts in patients with second line GIST, fifth line GIST, and a mix of third and fourth line GIST. The FDA has granted orphan drug designation to THE-630 for the treatment of GIST.
Our second program is THE-349, a fourth-generation inhibitor epidermal growth factor receptor, or EGFR, inhibitor program in non-small cell lung cancer, or NSCLC. THE-349 is designed to address treatment resistance to existing EGFR inhibitors by targeting the common activating mutations in exons 19 and 21 alone or in combination with the most frequently observed resistance mutations, T790M and C797X. Preclinical characterization of THE-349 as a fourth-generation EGFR, central nervous system-,or CNS active, and mutant-selective inhibitor with potent activity against single-, double-, and triple-mutant EGFR variants, including T790M and C797X, was shared in a poster presentation at the 34th EORTC-NCI-AACR, or ENA, Symposium in Barcelona on October 26-28, 2022. We have initiated Investigational New Drug, or IND-enabling studies, and expect to file an IND application for this program in the second half of 2023.
In addition to our lead programs, we have selectively prioritized additional small molecule research programs with established targets, following an assessment of unmet medical need. We intend to prioritize the first of our discovery programs, which is in lead optimization, by the end of 2022.
Our differentiated approach to addressing drug resistance is built on three strategic pillars: (1) targeting clinically-validated oncogenic drivers that have a clear unmet need; (2) integrating structure-guided drug design with our predictive screening methodologies, including our PRA; and (3) pursuing translationally-driven, biomarker-guided clinical development strategies. We believe our research and development approach, honed over years of our management team’s experience in developing approved therapeutics at ARIAD positions us well to develop a pipeline of drugs to address the challenges posed by resistance mutations.
Corporate History
We were initially formed in December 29, 2017. Our principal executive offices are located at 314 Main Street, Cambridge, Massachusetts 02142, and our telephone number is (857) 400-9491. Our website address is https://theseusrx.com/. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address as an inactive textual reference only. Our common stock is listed on the Nasdaq Global Select Market under the symbol “THRX.” The information on, or that can be accessed through, our website is not part of this prospectus and is not incorporated by reference herein.
Theseus Pharmaceuticals, Theseus, the Theseus logo and other registered or common law trade names, trademarks or service marks of Theseus appearing in this prospectus are the property of Theseus Pharmaceuticals, Inc. This prospectus contains additional trade names, trademarks, and service marks of other companies. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us, by these other companies. Other trademarks appearing in this prospectus are the property of their respective holders. Solely for convenience, our trademarks and tradenames referred to in this prospectus appear without the ® and ™ symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights to these trademarks and tradenames.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We qualify as an “emerging growth company” as defined in the JOBS Act. As an emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. These provisions include:
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being permitted to only disclose two years of audited financial statements in addition to any required unaudited interim financial statements with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure;
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reduced disclosure about our executive compensation arrangements;
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not being required to hold advisory votes on executive compensation or to obtain stockholder approval of any golden parachute arrangements not previously approved; and
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an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting.
We may take advantage of these exemptions until the fifth anniversary of our initial public offering or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company on the date that is the earliest of (i) the last day of the fiscal year in which we have total annual gross revenue of $1.235 billion or more; (ii) the last day of our fiscal year following the fifth anniversary of the date of the completion of this offering; (iii) the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or (iv) the last day of the fiscal year in which we are deemed to be a large accelerated filer under the rules of the SEC which means the market value of our common stock that is held by non-affiliates exceeds $700 million as of the prior June 30th. We may choose to take advantage of some but not all of these exemptions. We have taken advantage of reduced reporting requirements in this prospectus. Accordingly, the information contained herein may be different from the information you receive from other public companies in which you hold stock. We are in the process of evaluating the benefits of relying on other exemptions and reduced reporting requirements under the JOBS Act. Subject to certain conditions, as an emerging growth company, we may rely on certain of these
exemptions, including without limitation, providing an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act.
We are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller reporting companies until the fiscal year following the determination that our voting and non-voting common stock held by non-affiliates is more than $250 million measured on the last business day of our second fiscal quarter, or our annual revenues are more than $100 million during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is more than $700 million measured on the last business day of our second fiscal quarter.
The Offering
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $100,000,000.
Common stock to be outstanding after this offering
Up to 57,761,049 shares, assuming sales of 19,047,619 shares of our common stock in this offering at an offering price of $5.25 per share, which was the last reported sale price of our common stock on the Nasdaq Global Select Market on November 2, 2022. The actual number of shares of common stock issued will vary depending on the sales price under this offering.
“At the market offering” that may be made from time to time on the Nasdaq Global Select Market or such other national securities exchange on which our common stock is then listed, through our sales agent, Cantor Fitzgerald. See the section entitled “Plan of Distribution” on page S-16 of this prospectus.
We intend to use the net proceeds from this offering for pipeline development, and for general corporate purposes and working capital, including research and development activities, clinical trials, acquisitions or in-licenses of complementary products, product candidates, or technologies, personnel-related expenditures or working capital and capital expenditures. See “Use of Proceeds” on page S-11 of this prospectus.
You should read the “Risk Factors” section of this prospectus beginning on page S-9 and other information included in, or 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
THRX
The number of shares of our common stock to be outstanding after this offering is based on 38,713,430 shares of our common stock outstanding as of September 30, 2022 and excludes:
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4,692,044 shares of common stock issuable upon the exercise of stock options pursuant to our 2018 Stock Incentive Plan, as amended, or the 2018 Plan, outstanding as of September 30, 2022, at a weighted average exercise price of $3.29 per share;
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2,595,742 shares of common stock issuable upon the exercise of stock options pursuant to our 2021 Equity Incentive Plan, as amended, or the 2021 Plan, outstanding as of September 30, 2022, at a weighted average exercise price of $11.07 per share;
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31,650 shares of common stock issuable upon the vesting and settlement of restricted stock units outstanding as of September 30, 2022;
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1,813,494 shares of common stock available for future issuance under our 2021 Plan as of September 30, 2022, as well as any automatic increases in the number of shares of common stock reserved for issuance under the 2021 Plan; and
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389,220 shares of common stock available for future issuance under our 2021 Employee Stock Purchase Plan, as amended, or the 2021 ESPP, as of September 30, 2022, as well as any automatic increases in the number of shares of common stock reserved for issuance under the 2021 ESPP.
Except as otherwise noted, the information in this prospectus assumes no exercise of outstanding stock options described above.
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before you decide to invest in our common stock, you should carefully consider the risks and uncertainties described below and in Part I, Item 1A “Risk Factors” of our most recent annual report on Form 10-K, and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, together with all other information contained in this prospectus and in our filings with the SEC that we have incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act. If any of the following risks actually occurs, our business, financial condition or results of operations could be adversely affected, which, in turn, could have a negative impact on the price of our common stock. In these circumstances, the market price of our common stock could decline, and you may lose all or part of your investment.
Additional Risks Related To Our Common Stock And This Offering
You may experience immediate and substantial dilution in the net tangible book value per share of our common stock you purchase.
Because the price per share of our common stock being offered may be substantially higher than the net tangible book value per share of our common stock outstanding, you may suffer immediate and substantial dilution in the net tangible book value of the share of our common stock you purchase in this offering. The shares of our common stock sold in this offering, if any, will be sold from time to time at various prices. If we sell shares of our common stock in this offering at a price that is higher than the book value per share of our common stock, investors in this offering will experience dilution.
We have broad discretion in the use of the net proceeds from this offering and our existing cash and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section titled “Use of Proceeds,” as well as our existing cash, and you will be relying on the judgment of our management regarding such application. You will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used effectively. Our management might not apply the net proceeds or our existing cash in ways that ultimately increase the value of your investment. If we do not invest or apply the net proceeds from this offering or our existing cash in ways that enhance stockholder value, we may fail to achieve expected results, which could cause our stock price to decline. Pending the uses described above, we may invest the net proceeds from this offering in short- and intermediate-term, investment-grade, interest-bearing instruments.
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.
Future sales or issuances of our common stock in the public markets, or the perception of such sales, could depress the trading price of our common stock.
The sale of a substantial number of shares of our common stock or other securities convertible into or exchangeable for our common stock in the public markets, or the perception that such sales could occur, could depress the market price of our common stock and impair our ability to raise capital through the sale of additional equity securities. We may sell large quantities of our common stock at any time pursuant to this prospectus or in one or more separate offerings. We cannot predict the effect that future sales of common stock or other equity-related securities would have on the market price of our common stock.
The actual number of shares we will issue and gross proceeds resulting from those sales, at any one time or in total, is uncertain.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to Cantor Fitzgerald at any time throughout the term of the sales agreement. The number of shares that are sold by Cantor Fitzgerald after delivering a placement notice will fluctuate based on the market price of our common stock during the sales period and limits we set with Cantor Fitzgerald in any instruction to sell shares, and the demand for our common stock during the sales period. Because the price per share of each share sold will fluctuate based on the market price of our common stock during the sales period, it is not possible at this stage to predict the number of shares or the gross proceeds to be raised in connection with those sales, if any, that will be ultimately issued.
The common stock offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate gross proceeds of up to $100,000,000 from time to time. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can be no assurance that we will sell any shares under or fully utilize the sales agreement as a source of financing.
We intend to use the net proceeds from this offering to support pipeline development, and for general corporate purposes and working capital, including research and development activities, clinical trials, acquisitions or in-licenses of complementary products, product candidates, or technologies, personnel-related expenditures or working capital and capital expenditures. However, we have no current understandings, agreements or commitments for any material acquisitions at this time, and we have not allocated specific amounts of the net proceeds to be received by us from this offering for any of these purposes. As a result, management will retain broad discretion over the allocation of the net proceeds from this offering for its business use. Pending the uses described above, we may invest the net proceeds from this offering in short- and intermediate-term, investment-grade, interest-bearing instruments.
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS
The following discussion is a summary of the material U.S. federal income tax considerations applicable to non-U.S. holders (as defined below) with respect to their ownership and disposition of shares of our common stock issued pursuant to this offering. For purposes of this discussion, a non-U.S. holder means a beneficial owner of our common stock that is for U.S. federal income tax purposes:
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a non-resident alien individual;
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a foreign corporation or other organization taxable as a corporation; or
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a foreign trust or estate, the income of which is not subject to U.S. federal income tax on a net income basis.
This discussion does not address the tax treatment of partnerships or other entities or arrangements that are treated as pass-through entities for U.S. federal income tax purposes or persons that hold their common stock through partnerships or other pass-through entities. A partner in a partnership or other pass-through entity that will hold our common stock should consult his, her or its tax advisor regarding the tax consequences of acquiring, holding and disposing of our common stock through a partnership or other pass-through entity, as applicable.
This discussion is based on current provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed U.S. Treasury Regulations promulgated thereunder, current administrative rulings and judicial decisions, all as in effect as of the date of this prospectus and, all of which are subject to change or to differing interpretation, possibly with retroactive effect. Any such change or differing interpretation could alter the tax consequences to non-U.S. holders described in this prospectus. There can be no assurance that the Internal Revenue Service, which we refer to as the IRS, will not challenge one or more of the tax consequences described herein. We assume in this discussion that a non-U.S. holder holds shares of our common stock as a capital asset within the meaning of Section 1221 of the Code, generally property held for investment.
This discussion does not address all aspects of U.S. federal income taxation that may be relevant to a particular non-U.S. holder in light of that non-U.S. holder’s individual circumstances nor does it address any U.S. state, local or non-U.S. taxes, the alternative minimum tax, the Medicare tax on net investment income, the rules regarding qualified small business stock within the meaning of Section 1202 of the Code, or any other aspect of any U.S. federal tax other than the income tax. This discussion also does not consider any specific facts or circumstances that may apply to a non-U.S. holder and does not address the special tax rules applicable to particular non-U.S. holders, such as:
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insurance companies;
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tax-exempt or governmental organizations;
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financial institutions;
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brokers or dealers in securities;
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regulated investment companies;
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pension plans;
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“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
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“qualified foreign pension funds,” or entities wholly owned by a “qualified foreign pension fund”;
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persons deemed to sell our common stock under the constructive sale provisions of the Code;
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persons that own, or have owned, actually or constructively, more than 5% of our common stock;
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persons who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation;
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persons that hold our common stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; and
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U.S. expatriates.
This discussion is for information only and is not tax advice. Accordingly, all prospective non-U.S. holders of our common stock should consult their tax advisors with respect to the U.S. federal, state, local and non-U.S. tax consequences of the purchase, ownership and disposition of our common stock, including any proposed change in applicable laws.
Distributions on Our Common Stock
Distributions, if any, on our common stock will generally constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings and profits, the excess will be treated as a tax-free return of the non-U.S. holder’s investment, up to such holder’s tax basis in the common stock. Any remaining excess will be treated as capital gain, subject to the tax treatment described below in “Gain on Sale or Other Taxable Disposition of Our Common Stock.” Any such distributions will also be subject to the discussions below under the sections titled “Backup Withholding and Information Reporting” and “Withholding and Information Reporting Requirements — FATCA.”
Subject to the discussion in the following two paragraphs in this section, dividends paid to a non-U.S. holder generally will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s country of residence.
Dividends that are treated as effectively connected with a trade or business conducted by a non-U.S. holder within the United States and, if an applicable income tax treaty so provides, that are attributable to a permanent establishment or a fixed base maintained by the non-U.S. holder within the United States, are generally exempt from the 30% withholding tax if the non-U.S. holder satisfies applicable certification and disclosure requirements. To claim the exemption, the non-U.S. holder must generally furnish to the applicable withholding agent a properly executed IRS Form W-8ECI (or other applicable or successor form). However, such U.S. effectively connected income, net of specified deductions and credits, is taxed at the same U.S. federal income tax rates applicable to United States persons (as defined in the Code). Any U.S. effectively connected income received by a non-U.S. holder that is a corporation may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s country of residence.
A non-U.S. holder of our common stock who claims the benefit of an applicable income tax treaty between the United States and such holder’s country of residence generally will be required to provide a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable or successor form) to the applicable withholding agent and satisfy applicable certification and other requirements. Non-U.S. holders are urged to consult their tax advisors regarding their entitlement to benefits under a relevant income tax treaty. A non-U.S. holder that is eligible for a reduced rate of U.S. withholding tax under an income tax treaty may obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim with the IRS.
Gain on Sale or Other Taxable Disposition of Our Common Stock
Subject to the discussions below under “Backup Withholding and Information Reporting” and “Withholding and Information Reporting Requirements — FATCA,” a non-U.S. holder generally will not be subject to any U.S. federal income tax on any gain realized upon such holder’s sale or other taxable disposition of shares of our common stock unless:
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the gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business and, if an applicable income tax treaty so provides, is attributable to a permanent establishment or a fixed base maintained by such non-U.S. holder in the United States, in which case the non-U.S. holder generally will be taxed on a net income basis at the same U.S. federal income tax rates applicable to
United States persons (as defined in the Code) and, if the non-U.S. holder is a foreign corporation, the branch profits tax described above in “Distributions on Our Common Stock” also may apply;
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the non-U.S. holder is a nonresident alien individual who is present in the United States for a period or periods aggregating 183 days or more in the taxable year of the disposition and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax (or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s country of residence) on the net gain derived from the disposition, which may be offset by certain U.S. source capital losses of the non-U.S. holder, if any, provided that the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses; or
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we are, or have been, at any time during the five-year period preceding such sale or other taxable disposition (or the non-U.S. holder’s holding period, if shorter) a “U.S. real property holding corporation,” unless our common stock is regularly traded on an established securities market and the non-U.S. holder holds no more than 5% of our outstanding common stock, directly or indirectly, actually or constructively, during the shorter of the 5-year period ending on the date of the disposition or the period that the non-U.S. holder held our common stock. Generally, a corporation is a U.S. real property holding corporation only if the fair market value of its U.S. real property interests equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. Although there can be no assurance, we do not believe that we are, or have been, a U.S. real property holding corporation, or that we are likely to become one in the future. No assurance can be provided that our common stock will be regularly traded on an established securities market for purposes of the rules described above.
Backup Withholding and Information Reporting
We must report annually to the IRS and to each non-U.S. holder the gross amount of the distributions on our common stock paid to such holder and the tax withheld, if any, with respect to such distributions. Non-U.S. holders may have to comply with specific certification procedures to establish that the holder is not a United States person (as defined in the Code) in order to avoid backup withholding at the applicable rate with respect to dividends on our common stock. Generally, a non-U.S. holder will comply with such procedures if it provides a properly executed IRS Form W-8BEN-E (or other applicable Form W-8) or otherwise meets documentary evidence requirements for establishing that it is a non-U.S. holder, or otherwise establishes an exemption. Dividends paid to non-U.S. holders subject to withholding of U.S. federal income tax, as described above in “Distributions on Our Common Stock,” generally will be exempt from U.S. backup withholding.
Information reporting and backup withholding will generally apply to the proceeds of a disposition of our common stock by a non-U.S. holder effected by or through the U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as a non-U.S. holder and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and backup withholding will not apply to a payment of disposition proceeds to a non-U.S. holder where the transaction is effected outside the United States through a non-U.S. office of a broker. However, for information reporting purposes, dispositions effected through a non-U.S. office of a broker with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions effected through a U.S. office of a broker.
Non-U.S. holders should consult their tax advisors regarding the application of the information reporting and backup withholding rules to them. Copies of information returns may be made available to the tax authorities of the country in which the non-U.S. holder resides or is incorporated under the provisions of a specific treaty or agreement. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder can be refunded or credited against the non-U.S. holder’s U.S. federal income tax liability, if any, provided that an appropriate claim is filed with the IRS in a timely manner.
Withholding and Information Reporting Requirements — FATCA
Provisions of the Code commonly referred to as the Foreign Account Tax Compliance Act, or FATCA, generally impose a U.S. federal withholding tax at a rate of 30% on payments of dividends on our
common stock paid to a foreign entity unless (i) if the foreign entity is a “foreign financial institution,” such foreign entity undertakes certain due diligence, reporting, withholding, and certification obligations, (ii) if the foreign entity is not a “foreign financial institution,” such foreign entity identifies certain of its U.S. investors, if any, or (iii) the foreign entity is otherwise exempt under FATCA. Such withholding may also apply to gross proceeds from the sale or other disposition of our common stock, although under proposed U.S. Treasury Regulations, no withholding would apply to such gross proceeds. The preamble to the proposed regulations specifies that taxpayers (including withholding agents) are generally permitted to rely on the proposed regulations pending finalization. If withholding under FATCA is required on any payment related to our common stock, under certain circumstances, a non-U.S. holder may be eligible for refunds or credits of this withholding tax. An intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this section. Non-U.S. holders should consult their tax advisors regarding the possible implications of FATCA on their investment in our common stock and the entities through which they hold our common stock, including, without limitation, the process and deadlines for meeting the applicable requirements to prevent the imposition of the 30% withholding tax under FATCA.
PLAN OF DISTRIBUTION
We have entered into the Sales Agreement with Cantor Fitzgerald. Pursuant to this prospectus, we may offer and sell shares of our common stock having an aggregate gross sales price of up to $100,000,000 from time to time through Cantor Fitzgerald acting as sales agent. A copy of 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, Cantor Fitzgerald may sell shares of 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 Cantor Fitzgerald not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We or Cantor Fitzgerald may suspend the offering of common stock upon notice and subject to other conditions.
We will pay Cantor Fitzgerald commissions, in cash, for its service in acting as agent in the sale of our common stock. Cantor Fitzgerald will be entitled to compensation at a commission rate of up to 3.0% of the sales price per share sold under the Sales Agreement. 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 Cantor Fitzgerald for certain specified expenses, including the fees and disbursements of their legal counsel in an amount not to exceed $75,000 and certain ongoing expenses. We estimate that the total expenses for the offering, excluding compensation and reimbursements payable to Cantor Fitzgerald under the terms of the Sales Agreement, will be approximately $350,000.
Settlement for sales of shares of our common stock will occur on the second business day following the date on which any sales are made, or on some other date that is agreed upon by us and Cantor Fitzgerald 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 Cantor Fitzgerald may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
Cantor Fitzgerald will use its commercially reasonable efforts, consistent with its sales and trading practices, to solicit offers to purchase the common stock 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, Cantor Fitzgerald will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor Fitzgerald will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to Cantor Fitzgerald against certain civil liabilities, including liabilities under the Securities Act.
The offering of shares of our common stock pursuant to the Sales Agreement will terminate upon the termination of the Sales Agreement as permitted therein. We and Cantor Fitzgerald may each terminate the Sales Agreement at any time upon ten days’ prior notice.
Cantor Fitzgerald and its 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, Cantor Fitzgerald will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus.
This prospectus may be made available in electronic format on a website maintained by Cantor Fitzgerald, and Cantor Fitzgerald may distribute this prospectus electronically.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Goodwin Procter LLP, Boston, Massachusetts. Cantor Fitzgerald & Co. is being represented in connection with this offering by Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York.
EXPERTS
The consolidated financial statements of Theseus Pharmaceuticals, Inc. appearing in Theseus Pharmaceuticals, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2021, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed document will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
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 www.sec.gov and on our investor website at www.theseusrx.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been omitted from this prospectus in accordance with the rules of the SEC. For more detail about us and any securities that may be offered by this prospectus, you may examine the registration statement of which this prospectus forms a part, including its exhibits and schedules. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance we refer you to the copy of the contract or document filed as an exhibit to the registration statement, each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference in this prospectus much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed:
•
Annual Report on Form 10-K for the fiscal year ended December 31, 2021, or the Annual Report, filed with the SEC on March 10, 2022;
•
The information specifically incorporated by reference into our Annual Report from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed with the SEC on April 25, 2022;
•
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022, June 30, 2022 and September 30, 2022, filed with the SEC on May 12, 2022, August 11, 2022 and November 3, 2022, respectively;
•
•
The description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on October 1, 2021 under Section 12(b) of the Exchange Act, updated by Exhibit 4.2 to the Annual Report, including any amendments or reports filed for the purpose of updating such description.
In addition, all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus. Notwithstanding the foregoing, unless specifically stated to the contrary, information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus or the registration statement of which this prospectus is a part.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address or phone number:
Theseus Pharmaceuticals, Inc.
314 Main Street Cambridge, Massachusetts 02142
(857) 400-9491
In accordance with Rule 412 of the Securities Act, any statement contained in a document incorporated by reference herein shall be deemed modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Up to $100,000,000
Common Stock
PROSPECTUS
, 2022
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities being registered.
| |
SEC registration fee
|
|
|
|
$ |
33,060 |
|
|
| |
FINRA filing fee
|
|
|
|
$ |
45,500 |
|
|
| |
Printing and engraving
|
|
|
|
|
* |
|
|
| |
Accounting services
|
|
|
|
|
* |
|
|
| |
Legal fees of registrant’s counsel
|
|
|
|
|
* |
|
|
| |
Miscellaneous
|
|
|
|
|
* |
|
|
| |
Total
|
|
|
|
|
* |
|
|
*
These fees are calculated based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at this time.
Item 15.
Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, or DGCL, authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.
We have adopted provisions in our certificate of incorporation and bylaws that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or 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 unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or
•
any transaction from which the director derived an improper personal benefit.
These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, our bylaws provide that:
•
we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and
•
we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.
We have entered into indemnification agreements with each of our directors and executive officers. These agreements provide that we will indemnify each of our directors, our executive officers and, at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action or proceeding arising out of that person’s services as a director or officer brought on behalf of us or in furtherance of our rights. Additionally, certain of our directors or officers may have certain rights to indemnification, advancement of expenses or insurance provided by their affiliates or other third parties, which indemnification relates to and might apply to the same proceedings arising out of such director’s or officer’s services as a director referenced herein. Nonetheless, we have agreed in the indemnification agreements that our obligations to those same directors or officers are primary and any obligation of such affiliates or other third parties to advance expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary.
We also maintain general liability insurance which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933, as amended, or the Securities Act.
Item 16.
Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit Index, which appears elsewhere herein and is incorporated herein by reference.
Item 17.
Undertakings.
The undersigned Registrant hereby undertakes:
(a)(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, as amended (the “Securities Act of 1933”);
(ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(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 Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this 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 such 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, such 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 such 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 such undersigned Registrant or used or referred to by such undersigned Registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about such undersigned Registrant or its securities provided by or on behalf of such undersigned Registrant; and
(iv) any other communication that is an offer in the offering made by such undersigned Registrant to the purchaser.
(6) 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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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) 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 indemnification provisions described herein, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue;
(8) That, for purposes of determining any liability under the Securities Act of 1933, 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)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement as of the time it was declared effective;
(9) That, for purposes of determining any liability under the Securities Act of 1933, 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; and
(10) 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 of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
EXHIBIT INDEX
| |
Exhibit
No.
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|
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Description
|
|
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1.1*
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Form of Underwriting Agreement
|
|
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1.2
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|
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Controlled Equity OfferingSM Sales Agreement, dated as of November 3, 2022, between the Registrant and Cantor Fitzgerald & Co. |
|
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3.1
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Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect (incorporated by reference to Exhibit 3.2 of the Registrant’s Quarterly Report on Form 10-Q (File No. 001-40869) filed with the SEC on November 15, 2021).
|
|
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3.2
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4.1
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|
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Amended and Restated Investors’ Rights Agreement, dated January 22, 2021, by and among the Registrant and the other parties thereto (incorporated by reference to Exhibit 4.2 of the Registrant’s Registration Statement on Form S-1 (File No. 333-259549) filed with the SEC on September 15, 2021).
|
|
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4.2
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Form of Registrant’s Common Stock Certificate (incorporated by reference to the Registrant's Registration Statement on Form S-1/A (File No. 333-259549) filed with the SEC on September 30, 2021).
|
|
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4.3*
|
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Form of Preferred Stock Certificate
|
|
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4.4*
|
|
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Form of Certificate of designation, preferences and rights with respect to any preferred stock issued hereunder
|
|
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4.5
|
|
|
|
|
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4.6
|
|
|
|
|
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4.7*
|
|
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Form of Warrant Agreement (Stock) (including form of Warrant Certificate)
|
|
| |
4.8*
|
|
|
Form of Warrant Agreement (Debt) (including form of Warrant Certificate)
|
|
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4.9*
|
|
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Form of Unit Agreement
|
|
| |
5.1
|
|
|
|
|
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5.2
|
|
|
|
|
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23.1
|
|
|
|
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23.2
|
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23.3
|
|
|
|
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24.1
|
|
|
|
|
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25.1**
|
|
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Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939, as amended
|
|
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25.2**
|
|
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Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939, as amended
|
|
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107
|
|
|
|
|
*
To be filed by amendment or incorporated by reference prior to the offering of securities.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
SIGNATURES
Pursuant to the requirements of the Securities Act, Theseus Pharmaceuticals, Inc. 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 Cambridge, Massachusetts, on the 3rd day of November, 2022.
THESEUS PHARMACEUTICALS, INC.
By:
/s/ Timothy Clackson, Ph.D.
Timothy Clackson, Ph.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 Timothy Clackson, Ph.D. and Bradford D. Dahms and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post- effective amendments, to this registration statement, and any registration statement relating to the offering covered by this registration statement and filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/ Timothy Clackson, Ph.D.
Timothy Clackson, Ph.D.
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President, Chief Executive Officer and Director
(Principal Executive Officer)
|
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November 3, 2022
|
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/s/ Bradford D. Dahms
Bradford D. Dahms
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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November 3, 2022
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/s/ Iain D. Dukes, D. Phil.
Iain D. Dukes, D. Phil.
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Chairman and Director
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November 3, 2022
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/s/ Carl Gordon, Ph.D.
Carl Gordon, Ph.D.
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Director
|
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November 3, 2022
|
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/s/ Donald J. Hayden
Donald J. Hayden
|
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Director
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November 3, 2022
|
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/s/ Michael Rome, Ph.D.
Michael Rome, Ph.D.
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Director
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November 3, 2022
|
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Name
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Title
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Date
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/s/ Steven Stein, M.D.
Steven Stein, M.D.
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Director
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November 3, 2022
|
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/s/ Kathy Yi
Kathy Yi
|
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Director
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November 3, 2022
|
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Exhibit 1.2
THESEUS
PHARMACEUTICALS, INC.
Shares of Common Stock
(par value $0.0001 per share)
Controlled Equity OfferingSM
Sales Agreement
November 3, 2022
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Theseus Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. (the “Agent”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell through the Agent, shares of common stock (the “Placement Shares”)
of the Company, par value $0.0001 per share (the “Common Stock”); provided, however, that in no
event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the
number or dollar amount of shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which
the offering is being made, (b) exceed the number of authorized but unissued shares of Common Stock (less shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), (c) exceed the number or dollar amount of shares of Common Stock permitted to be sold under Form S-3
(including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of shares of Common Stock
for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum
Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations
set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares
through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared
effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall
be construed as requiring the Company to use the Registration Statement to issue Common Stock.
The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from
time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the
registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of
the prospectus included as part of such registration statement, as supplemented, by the Prospectus Supplement, relating to the Placement
Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to
time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement),
with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents
filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of
such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration
Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included
in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus
or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to
refer to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus
Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes
of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or
if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares to be issued, the
time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one
day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached
hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule
3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals
from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. Subject to the provisions herein,
the Placement Notice shall be effective unless and until (i) the Agent declines in writing to accept the terms contained therein
for any reason, in its sole discretion, within two Business Days (defined below) of receipt of such Placement Notice, (ii) the entire
amount of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this
Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation
to be paid by the Company to Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms
set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and
the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein
and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale
of Placement Shares by the Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state
and federal laws, rules and regulations and the rules of the NASDAQ Global Select Market (the “Exchange”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent
will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b))
from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities
Act Regulations, including sales made directly on or through the Exchange or any other existing trading market for the Common Stock, in
negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any
other method permitted by law. “Trading Day” means any day on which Common Stock is traded on the Exchange.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission
or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares
(a “Suspension”); provided, however, that such Suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect any
obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort
letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective
against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended
from time to time.
5. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable laws and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms
of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful
in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if
it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable laws and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except
as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares
hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for (i) the
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any Governmental Authority in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have given the
Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Agent
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date.
The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto,
it will (i) hold the Agent harmless against any loss, claim, damage, or reasonable and documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent
(if applicable) and (ii) pay to the Agent any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default.
(d) Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names as
the Agent may request in writing at least one full Business Day (as defined below) before the Settlement Date. The certificates for the
Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent in The City of New York not
later than noon (New York time) on the Business Day prior to the Settlement Date.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount and (B) the
amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Under no circumstances shall the Company
cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee.
Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to this
Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different time:
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form S-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and will be declared effective by the Commission under the Securities Act prior
to the issuance of any Placement Notices by the Company. The Prospectus Supplement will name the Agent as the agent in the section entitled
“Plan of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing or suspending
the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and the
offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in
all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. Copies
of the Registration Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by reference therein
that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to
Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the
distribution of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement
Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the
Agent has consented. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on
the Exchange under the trading symbol “THRX.” The Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act, delisting the Common Stock from the Exchange, nor has the Company
received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (defined below), did not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents
incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by Agent specifically for use in the preparation thereof.
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.
(d) Financial
Information. The financial statements filed with the Commission and incorporated by reference into the Registration Statement, the
Prospectus and the Issuer Free Writing Prospectuses, if any, present fairly in all material respects the financial position of the Company
and the Subsidiaries as of the dates indicated and the results of its operations, changes in stockholders’ equity and cash flows
for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as
applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto and except in the case of unaudited financial statements, which are subject to normal and recurring year-end adjustments
and do not contain certain footnotes as permitted by the applicable rules of the Commission. No other financial statements or supporting
schedules are required to be included or incorporated by reference into the Registration Statement, the Prospectus or the Issuer Free
Writing Prospectuses, if any. The financial data set forth or incorporated by reference into each of the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, fairly present in all material respects the information set forth therein on a basis
consistent with that of the audited financial statements contained or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any. To the Company’s knowledge, no person who has been suspended or barred from being
associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated
by the PCAOB, has participated in or otherwise aided the preparation of, or audited, the financial statements, supporting schedules or
other financial data filed with the Commission and incorporated by reference into the Registration Statement, the Prospectus and the Issuer
Free Writing Prospectuses, if any.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to Agent for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each Subsidiary have been duly incorporated and are validly existing as a corporation in good standing under the laws
of their respective jurisdictions of incorporation and have the corporate power and authority to own, lease and operate their properties
and to conduct their business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in the Commonwealth
of Massachusetts and 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 to be so qualified or to be in good standing would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (as defined below). Each Subsidiary 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 to be so qualified or to be in good standing
would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(g) Subsidiaries.
The subsidiaries, if any, set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K, are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission) (collectively,
the “Subsidiaries”). Except as set forth in the Registration Statement and in the Prospectus, the Company owns,
directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable
and free of preemptive and similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company.
(h) No
Violation or Default. Neither the Company nor any Subsidiary is in violation of its certificate of incorporation or by-laws, partnership
agreement or operating agreement or similar organizational documents, as applicable, or is in default (or, with the giving of notice or
lapse of time, would be in default) (“Default”) under any indenture, loan, credit agreement, note, lease, license
agreement, contract, franchise or other instrument (including, without limitation, any pledge agreement, security agreement, mortgage
or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which the Company or any Subsidiary
is a party or by which it may be bound, or to which any of its properties or assets are subject (each, an “Existing Instrument”),
except for such Defaults as would not be reasonably expected, individually or in the aggregate, to result in a Material Adverse Effect
(as defined below). The Company’s execution, delivery and performance of this Agreement, consummation of the transactions contemplated
hereby and by the Registration Statement and the Prospectus and the issuance and sale of the Placement Shares (including the use of proceeds
from the sale of the Placement Shares as described in the Registration Statement and the Prospectus under the caption “Use of Proceeds”)
(i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of the certificate
of incorporation or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company
or any Subsidiary (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result in any
violation of any law, administrative regulation or administrative or court decree applicable to the Company or any Subsidiary, except
in the case of clause (ii) and (iii) as would not be expected, individually or in the aggregate, to result in a Material Adverse
Effect (as defined below). As used herein, a “Debt Repayment Triggering Event” means any event or condition
which gives, or with the giving of notice or lapse of time would give, 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.
(i) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been no material adverse change,
or any development that would reasonably be expected to result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, properties, operations, operating results, assets, liabilities or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and the Subsidiaries, taken as a whole (any such change being referred
to herein as a “Material Adverse Effect”); (ii) neither the Company nor any Subsidiary has incurred any
material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference with its business
from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute
or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and the Subsidiaries,
taken as a whole, or has entered into any material transactions not in the ordinary course of business; and (iii) there has not been
any material decrease in the capital stock or any material increase in any short-term or long-term indebtedness of the Company or any
Subsidiary and there has been no dividend or distribution of any kind declared, paid or made by the Company or any Subsidiary on any class
of capital stock, or any repurchase or redemption by the Company or any Subsidiary of any class of capital stock.
(j) Capitalization.
The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement and the Prospectus (other
than for subsequent issuances, if any, pursuant to employee benefit plans, or upon the exercise of outstanding options or warrants, in
each case described in the Registration Statement and the Prospectus). The shares of Common Stock (including the Placement Shares) conform
in all material respects to the description thereof contained in the Prospectus. All of the issued and outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance with all applicable
federal and state securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase securities of the Company that have not been duly waived or satisfied.
There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity
or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any Subsidiary other than
those described in the Registration Statement and the Prospectus. The descriptions of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement and the
Prospectus accurately and fairly presents in all material respects the information required to be shown with respect to such plans, arrangements,
options and rights.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
(l) Authorization
of Placement Shares. The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued
and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Placement Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Placement Shares that have not been duly waived or satisfied.
(m) No
Consents Required. No consent, approval, authorization or other order of, or registration or filing with, any Governmental Authority
is required for the Company’s execution, delivery and performance of this Agreement and consummation of the transactions contemplated
hereby and by the Registration Statement and the Prospectus, except such as have been obtained or made by the Company and are in full
force and effect under the Securities Act and such as may be required under applicable state securities or blue sky laws or the Financial
Industry Regulatory Authority, Inc. (“FINRA”).
(n) No
Preferential Rights. There are no persons with registration or other similar rights to have any equity or debt securities registered
for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been
duly waived.
(o) Independent
Public Accounting Firm. Ernst & Young LLP, which has expressed its opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) filed with the Commission and incorporated by reference into the Registration
Statement and the Prospectus, is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange
Act, and the rules of the Public Company Accounting Oversight Board (“PCAOB”), (ii) in compliance with the
applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities Act and
(iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended or revoked and who has
not requested such registration to be withdrawn.
(p) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid and binding
obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, and except for any unenforceability that, individually or in the aggregate, would
not have a Material Adverse Effect.
(q) No
Litigation. There is no action, suit, proceeding, inquiry or investigation brought by or before any Governmental Authority now pending
or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary, which would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(r) Consents
and Permits. The Company and each Subsidiary possess such valid and current certificates, authorizations or permits required by state,
federal or foreign regulatory agencies or bodies to conduct its business as currently conducted and as described in the Registration Statement
or the Prospectus (“Permits”), except where failure to so possess would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of, or in default
under, any of the Permits or has received any written notice of proceedings relating to the revocation or modification of, or non-compliance
with, any such Permit that would reasonably be expected, individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, to have a Material Adverse Effect.
(s) Compliance
with Health Care Laws. The Company and each Subsidiary are, and at all times have been, in compliance with all Health Care Laws in
all material respects. For purposes of this Agreement, “Health Care Laws” means, to the extent applicable to the Company’s
operations: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Public Health Service Act (42
U.S.C. Section 201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and foreign
health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Civil
False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal false statements law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C.
Sections 286 and 287, the health care fraud criminal provisions under HIPAA, the Stark Law (42 U.S.C. Section 1395nn), the civil
monetary penalties law (42 U.S.C. Section 1320a-7a), the exclusion law (42 U.S.C. Section 1320a-7), the Physician Payments Sunshine
Act (42 U.S.C. Section 1320a-7h); (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health
Act (42 U.S.C. Section 17921 et seq.) ; (iv) all other comparable local, state, federal, national, supranational and foreign
health care laws, relating to the regulation of the Company or the Subsidiaries, and (v) the directives and regulations promulgated
pursuant to such statutes and any state or non-U.S. counterpart thereof. Neither the Company nor any Subsidiary has received written notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Authority
or third party alleging that any product, Company operation or activity is in material violation of any Health Care Laws nor, to the Company’s
knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened. The
Company and each Subsidiary have filed, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all material
respects (or were corrected or supplemented by a subsequent submission). Neither the Company nor any Subsidiary is a party to any corporate
integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any Governmental
Authority related to any Health Care Laws. Additionally, neither the Company nor any Subsidiary, nor any of their employees, officers,
directors, or, to the Company’s knowledge, agents has been excluded, suspended or debarred from participation in any U.S. federal
health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(t) Intellectual
Property. The Company and the Subsidiaries own, or have obtained valid and enforceable licenses for, the inventions, patent applications,
patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in the Registration
Statement and the Prospectus as being owned or licensed by it or, to the Company’s knowledge, which are necessary for the conduct
of its business as currently conducted or as currently proposed to be conducted as described in the Registration Statement and the Prospectus
(collectively, “Intellectual Property”), and to the Company’s knowledge the conduct of its business does
not currently infringe, misappropriate or otherwise conflict in any material respect with any such rights of others. The Intellectual
Property owned or licensed by the Company and the Subsidiaries have not been adjudged by a court of competent jurisdiction to be invalid
or unenforceable, in whole or in part, and the Company is unaware of any facts which would form a reasonable basis for any such adjudication.
To the Company’s knowledge, except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect: (i) except as disclosed in the Registration Statement and the Prospectus, there are no third parties who have rights
to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property
that is disclosed in the Registration Statement and the Prospectus as licensed to the Company and the Subsidiaries; and (ii) there
is no infringement by third parties of any Intellectual Property. To the Company’s knowledge, there is no pending or threatened
action, suit, proceeding or claim by others: (A) challenging the Company’s or any Subsidiary’s rights in or to any Intellectual
Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim;
(B) challenging the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any Subsidiary
infringes or otherwise violates, or would, upon the commercialization of any product or service described in the Registration Statement
or the Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret
or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action,
suit, proceeding or claim; in each case of sub-clause (A) through (C), which would reasonably be expected individually or in the
aggregate, to result in a Material Adverse Effect. The Company and the Subsidiaries have complied in all material respects with the terms
of each agreement pursuant to which Intellectual Property has been licensed to the Company or any Subsidiary, and to the Company’s
knowledge, all such agreements are in full force and effect. To the Company’s knowledge, there are no material defects in any of
the patents or patent applications included in the Intellectual Property. To the Company’s knowledge, the Company and the Subsidiaries
have taken commercially reasonable steps to protect, maintain and safeguard its Intellectual Property, including the execution of appropriate
nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with its employees, and to the
Company’s knowledge, no employee of the Company is in or has been in violation of any material term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement,
or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment
with the Company. To the Company’s knowledge, the duty of candor and good faith as required by the United States Patent and Trademark
Office during the prosecution of the United States patents and patent applications included in the Intellectual Property have been complied
with; and to the Company’s knowledge, in all foreign offices having similar requirements, all such requirements have been complied
with. To the Company’s knowledge, none of the Company owned or licensed Intellectual Property or technology (including information
technology and outsourced arrangements) employed by the Company has been obtained or is being used by the Company or any Subsidiary in
material violation of any contractual obligation binding on the Company, any Subsidiary or any of their officers, directors or employees
or otherwise in violation of the rights of any persons. The product candidate and programs described in the Registration Statement and
the Prospectus as under development by the Company falls within the scope of the claims of one or more patents owned by, or exclusively
licensed to, the Company and the Subsidiaries.
(u) Clinical
Studies. The preclinical studies and clinical trials, and other studies (collectively, “studies”) that are
described in, or the results of which are referred to in, the Registration Statement or the Prospectus were and, if still ongoing, are
being conducted in all material respects in accordance with the protocols, procedures and controls designed and approved for such studies
and with standard medical and scientific research procedures; each description of the results of such studies in the Registration Statement
or Prospectus is accurate and complete in all material respects and fairly presents in all material respects the data derived from such
studies, and the Company has no knowledge of any other studies the results of which are materially inconsistent with, or otherwise reasonably
call into question, the results described or referred to in the Registration Statement or the Prospectus when viewed in the context in
which such results are described and the clinical state of development; the Company and the Subsidiaries have made all such filings and
obtained all such approvals as required by the Food and Drug Administration of the U.S. Department of Health and Human Services or any
committee thereof (the “FDA”) or from any other U.S. or foreign government or drug or medical device regulatory
agency, or health care facility Institutional Review Board (collectively, the “Regulatory Agencies”) to conduct
its business as currently conducted and as described in the Registration Statement or the Prospectus; neither the Company nor any Subsidiary
has received any notice of, or correspondence from, any Regulatory Agency requiring the termination, suspension or material modification
of any clinical trials that are described or referred to in the Registration Statement or the Prospectus; and the Company and the Subsidiaries
have operated and currently are in compliance in all material respects with all applicable rules, regulations and policies of the Regulatory
Agencies.
(v) Market
Capitalization. At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s
most recent Annual Report on Form 10-K was filed with the Commission, the Company met or will meet the then applicable requirements
for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.1 or I.B.6 of Form S-3.
The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least
12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as
defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an
entity that is not a shell company
(w) No
Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money or on
any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect. The
Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual
Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or
(ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which
defaults, individually or in the aggregate, would have a Material Adverse Effect.
(x) Market
Activities. Neither the Company nor any Subsidiary has taken, directly or indirectly, without giving effect to any activities by the
Placement Agent, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the
price of the Common Stock or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act
(“Regulation M”)) with respect to the Common Stock, whether to facilitate the sale or resale of the Placement
Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(y) Broker/Dealer
Relationships. None of the Company, any Subsidiary nor any of their related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual).
(z) No
Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(aa) Taxes.
The Company and each Subsidiary have filed all necessary United States federal, state and non-U.S. income and franchise tax returns or
has properly requested extensions thereof and has paid all taxes required to be paid by it and, if due and payable, any related or similar
assessment, fine or penalty levied against it except as may be being contested in good faith and by appropriate proceedings. The Company
has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 6(d) above in
respect of all material United States federal, state and non-U.S. income and franchise taxes for all periods as to which the tax liability
of the Company or any Subsidiary has not been finally determined.
(bb) Title
to Real and Personal Property. The Company and the Subsidiaries have good and marketable title to all of the real and personal property
and other assets reflected as owned in the financial statements referred to in Section 6(d) above (or elsewhere in the Registration
Statement or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse
claims and other defects, except where failure to have such title would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect (provided that, for the avoidance of doubt, rights to Intellectual Property are addressed exclusively
in Section 6(t) above). The real property, improvements, equipment and personal property held under lease by the Company and
the Subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company and the Subsidiaries.
(cc) Environmental
Laws. Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect: (i) neither
the Company nor any Subsidiary 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, to the Company’s knowledge, threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”); (ii) the Company and the Subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and is in compliance with their requirements; (iii) there are no pending or, to the Company’s knowledge,
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 Subsidiary; and (iv) there are
no events or circumstances that might 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 Authority, against or affecting the Company or any Subsidiary relating to Hazardous
Materials or any Environmental Laws.
(dd) Company’s
Accounting System. The Company and the Subsidiaries make and keep books and records that are accurate in all material respects and
maintain a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ee) Disclosure
Controls. The Company and each Subsidiary have established and maintain disclosure controls and procedures (as defined in Rules 13a-15
and 15d-15 under the Exchange Act), which (i) are designed to ensure that material information relating to the Company is made known
to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during
the periods in which the periodic reports required under the Exchange Act are being prepared, it being understood that neither subsection
(dd) nor this subsection (ee) requires the Company to comply with Section 404 of the Sarbanes Oxley Act of 2002 as of an earlier
date than it would otherwise be required to so comply under applicable law; (ii) have been evaluated by management of the Company
for effectiveness as of the end of the Company’s most recent fiscal quarter reflected in the financial statements that have been
filed with the Commission as a part of or incorporated by reference into the Prospectus; and (iii) except as disclosed in the Registration
Statement and the Prospectus, are effective in all material respects to perform the functions for which they were established. Except
as disclosed in the Registration Statement and the Prospectus, since the end of the Company’s most recent audited fiscal year, there
have been no significant deficiencies or material weaknesses in the Company’s internal control over financial reporting (whether
or not remediated) and 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 is not aware of any
change in its internal control over financial reporting that has occurred during its most recent fiscal quarter that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ff) Sarbanes-Oxley.
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 with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated
in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(gg) Finder’s
Fees. Except pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company or
any Subsidiary any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(hh) Labor
Disputes. No material labor dispute with the employees of the Company or any Subsidiary, or with the employees of any principal supplier,
manufacturer, customer or contractor of the Company or any Subsidiary, exists or, to the knowledge of the Company, is threatened or imminent.
(ii) Investment
Company Act. Neither the Company nor any Subsidiary is , or will be, either after receipt of payment for the Placement Shares or after
the application of the proceeds therefrom as described under “Use of Proceeds” in the Prospectus, required to register as
an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(jj) Operations.
The operations of the Company and the Subsidiaries are, and have been conducted at all times, in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations
or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any Governmental Authority involving the Company or any Subsidiary with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(kk) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, any Subsidiary
and/or any of their affiliates and any unconsolidated entity, including, but not limited to, any structural finance, special purpose or
limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be expected to affect
materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance
Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions
and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described
as required.
(ll) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or
continuous equity transaction.
(mm) ERISA.
Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) each “employee
benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, any Subsidiary
or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA; (ii) no “reportable
event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan”
established or maintained by the Company, any Subsidiary or any of its ERISA Affiliates; (iii) no “employee benefit plan”
established or maintained by the Company, any Subsidiary or any of its ERISA Affiliates, if such “employee benefit plan” were
terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA); and (iv) neither the Company,
the Subsidiaries nor any of its ERISA Affiliates has incurred or reasonably expects to incur any liability under (A) Title IV of
ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (B) Sections 412, 4971, 4975
or 4980B of the Code. Each employee benefit plan established or maintained by the Company, any Subsidiary or any of its ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification. “ERISA Affiliate” means, with respect to
the Company or any Subsidiary, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”)
of which the Company or such Subsidiary is a member.
(nn) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was
so included by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions,
estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary statements identifying those
factors that could cause actual results to differ materially from those in such forward-looking statement. No such statement was made
with the knowledge of an executive officer or director of the Company that it was false or misleading.
(oo) Agent
Purchases. The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extent permitted under
the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may engage
in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent.
(pp) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(qq) Insurance.
The Company and the Subsidiaries are insured by recognized, financially sound and reputable institutions with policies in such amounts
and with such deductibles and covering such risks as the Company reasonably believes are adequate and customary for its business including,
but not limited to, policies covering real and personal property owned or leased by the Company and the Subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes and policies covering the Company and the Subsidiaries for product liability claims and
clinical trial liability claims. The Company has no reason to believe that it will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary has not been denied any insurance coverage which it has sought or for which it has applied.
(rr) No
Improper Practices. Neither the Company nor any Subsidiary nor, to the best of the Company’s knowledge, any employee or agent
of the Company or any Subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state
or foreign office in violation of any applicable law or of the character required to be disclosed in the Registration Statement or the
Prospectus. Neither the Company nor any Subsidiary, nor any director, officer, or employee of the Company or any Subsidiary, nor to the
knowledge of the Company, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has, in the course of
its actions for, or on behalf of, the Company or any Subsidiary (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; (ii) made or taken any act in furtherance of an offer, promise,
or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including
of any government-owned or controlled entity or public international organization, or any political party, party official, or candidate
for political office; (iii) violated or is in violation of any applicable provision of the U.S. Foreign Corrupt Practices Act of
1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, authorized, requested, or taken an act in furtherance of any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment or benefit. The Company, the Subsidiaries and, to the knowledge of the Company, the Company’s
affiliates have conducted their respective businesses in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(ss) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(tt) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
each Applicable Time (as defined in Section 23 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by
the Agent specifically for use therein.
(uu) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and
thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a
default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the
property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such
conflicts, breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation
of the provisions of the organizational or governing documents of the Company, or (y) in any material violation of the provisions
of any statute or any order, rule or regulation applicable to the Company or of any Governmental Authority having jurisdiction over
the Company.
(vv) Sanctions.
Neither the Company nor any Subsidiary, nor any of its, directors, officers, or employees, nor, to the knowledge of the Company, after
due inquiry, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary is currently the subject or the target
of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”)
or the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any Subsidiary located,
organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea,
Cuba, Iran, North Korea, and Syria; and the neither Company nor any Subsidiary will directly or indirectly use the proceeds of this
offering, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other person or entity, for the
purpose of financing the activities of or business with any person, or in any country or territory, that at the time of such financing,
is the subject or the target of Sanctions or in any other manner that will result in a violation by any person (including any person participating
in the transaction whether as underwriter, advisor, investor or otherwise) of applicable Sanctions. For the past five years, neither the
Company nor any Subsidiary has knowingly engaged in or is now knowingly engaged in any dealings or transactions with any person that at
the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ww) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with, except as would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(xx) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement or the
Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate in all
material respects. To the extent required, the Company has obtained the written consent to the use of such data from such sources.
(yy) Cybersecurity.
The Company’s and the Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently
conducted. To the Company’s knowledge, the IT Systems contain no material bugs, errors, defects, Trojan horses, time bombs, malware
and other corruptants. The Company and the Subsidiaries have implemented and maintained commercially reasonable physical, technical and
administrative controls, policies, procedures, and safeguards designed to maintain and protect (i) its material confidential information;
(ii) the integrity, continuous operation, redundancy and security of all IT Systems and sensitive, confidential or regulated data,
including “Personal Data” used in connection with its business. “Personal Data” means (i) a
natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) “personal data” as defined by GDPR; (iv) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information that allows the identification
of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s
health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to the IT Systems and
no unauthorized uses or access to Personal Data, except for those that have been remedied without material cost or liability or the duty
to notify any other person, nor any data incidents under internal review or investigations relating to the same. The Company and the Subsidiaries
are presently in material compliance with all applicable laws or statutes and all judgments and orders binding on the Company and the
Subsidiaries, applicable binding rules and regulations of any Governmental Authority, and internal policies and contractual obligations,
each relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from
unauthorized use, access, misappropriation or modification.
(zz) Compliance
with Data Privacy Laws. The Company and each Subsidiary are, and at all prior times within the past three years were, in material
compliance with all applicable state and federal data privacy and security laws and regulations, including without limitation and to the
extent applicable, HIPAA, and the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively,
the “Privacy Laws”). In furtherance of its efforts to comply with the Privacy Laws, the Company and the Subsidiaries
have in place, comply in all material respects with, and take appropriate steps reasonably designed to ensure compliance in all material
respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling,
and analysis of Personal Data (the “Policies”). The Company and the Subsidiaries have at all times within the
past three years made all disclosures to users or customers required by applicable Privacy Laws, and none of such disclosures made or
contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any Privacy Laws in any material respect.
The Company further represents that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability under
or relating to, or actual or potential violation of, any of the Privacy Laws, or has knowledge of any event or condition that would reasonably
be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation,
or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement with a Governmental
Authority that imposes any obligation or liability under any Privacy Law.
(aaa) Emerging
Growth Company Status. From the time of the initial filing of the Company’s first registration statement with the Commission
through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of
the Securities Act (an “Emerging Growth Company”).
(bbb) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company, any Subsidiary or any other
person required to be described in the Registration Statement or the Prospectus that have not been described as required.
(ccc) No
Outstanding Loans or Other Extensions of Credit. Neither the Company nor any Subsidiary has any outstanding extension of credit, in
the form of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company or any Subsidiary except
for such extensions of credit as are expressly permitted by Section 13(k) of the Exchange Act.
(ddd) No
Contract Terminations. Neither the Company nor any Subsidiary has sent or received any communication regarding termination of, or
intent not to renew, any of the contracts or agreements referred to or described in the Registration Statement the Prospectus or any Issuer
Free Writing Prospectus, or referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination
or non-renewal has been threatened by the Company or any Subsidiary, to the Company’s knowledge, any other party to any such contract
or agreement, which threat of termination or non-renewal has not been rescinded as of the date hereof.
Any certificate signed by
an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company
of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to
make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company
will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible
into the Placement Shares unless a copy thereof has been submitted to Agent within a reasonable period of time before the filing and the
Agent has not reasonably objected thereto in writing within two Business Days (provided, however, that the failure of the
Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right
to rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only
remedy the Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this
Agreement) and the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to
be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the
Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be
filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not
file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion
or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the
issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430B under the Securities Act, it will use its commercially reasonable efforts to comply with the provisions
of and make all requisite filings with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings.
If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with
the Securities Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares during such period and the
Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance; provided, however, that the Company may delay any such amendment or supplement,
if, in the reasonable judgment of the Board of Directors of the Company, it is in the best interests of the Company to do so.
(d) Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the Company) copies
of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the
Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during such period
that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as the
Agent may from time to time reasonably request and, at the Agent’s request, will also furnish copies of the Prospectus to each exchange
or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required
to furnish any document (other than the Prospectus) to the Agent to the extent such document is available on EDGAR.
(f) Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to Agent hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior
to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the sixtieth (60th)
day immediately following the termination of this Agreement; provided, however, that such restrictions will not be required
in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable
upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment
plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in
effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agent
and (iii) Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions,
other business combinations or research, collaboration, technology license, development, marketing or other similar agreements or strategic
partnerships occurring after the date of this Agreement which are not issued for capital raising purposes.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent may reasonably
request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the
Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the
Securities Act (each and every filing date under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and
the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies
of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.
(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files the Prospectus relating
to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other
than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files an annual report on
Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment
to the previously filed Form 10-K);
(iii) files its quarterly reports
on Form 10-Q under the Exchange Act; or
(iv) files a current report on
Form 8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01
of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties
as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act (each date
of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date”);
the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with a certificate dated the Representation Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar
to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall be waived
for any Representation Date occurring at a time when a Placement Notice is not in effect or a Suspension is in effect, which waiver shall
continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement Shares hereunder (which for
such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date for which the requirement
to provide a certificate under this Section 7(l) is not waived pursuant to the terms thereof. Notwithstanding the foregoing,
if the Company subsequently decides to sell Placement Shares following a Representation Date when no Placement Notice was in effect or
a Suspension was in effect and did not provide the Agent with a certificate under this Section 7(l), then before the Company
delivers the instructions for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the
Company shall provide the Agent with a certificate in conformity with this Section 7(l) dated as of the date that the
instructions for the sale of Placement Shares are issued.
(m) Legal
Opinion. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agent (i) a written opinion
and negative assurance letter of Goodwin Procter LLP (“Company Counsel”) and (ii) a written opinion of
Proskauer Rose LLP, counsel for the Company with respect to intellectual property matters (“Company IP Counsel”),
or other counsel satisfactory to the Agent, in form and substance satisfactory to Agent and its counsel, substantially similar to the
form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus
as then amended or supplemented; provided, however, the Company shall be required to furnish to Agent no more than one opinion
and negative assurance letter hereunder per calendar quarter; provided, further, that in lieu of such opinions or negative
assurance letter for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance
Letter”) to the effect that the Agent may rely on a prior opinion or negative assurance letter delivered under this Section 7(m) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion or negative assurance letter,
as the case may be, shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date
of the Reliance Letter).
(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish
the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n); provided, that if requested by the Agent, the Company shall cause
a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction
or event, including the restatement of the Company’s financial statements. The Comfort Letter from the Company’s independent
registered public accounting firm shall be in a form and substance satisfactory to the Agent, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as
amended and supplemented to the date of such letter.
(o) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any Subsidiary will
be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,” as
such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act),
required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain such
qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less
than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies
and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions
and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit
the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles,
(iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries
will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley
Act, and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver to the Agent a certificate
of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date, certifying as to (i) the
Amended and Restated Certificate of Incorporation of the Company, (ii) the Amended and Restated By-laws of the Company, (iii) the
resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the issuance
of the Placement Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents
contemplated by this Agreement. Within five (5) Trading Days of each Representation Date, the Company shall have furnished to the
Agent such further information, certificates and documents as the Agent may reasonably request.
(u) Emerging
Growth Company Status. The Company will promptly notify the Agent if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement.
8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agent shall deem reasonably
necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be reasonably required in
connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery
of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital duties,
stamp duties or other similar duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented fees and
expenses of the Agent including but not limited to the reasonable and documented fees and expenses of the counsel to the Agent, payable
upon the execution of this Agreement, in an amount not to exceed $75,000 in connection with the execution of this Agreement, $15,000 per
calendar quarter thereafter in connection with updates at the time of Representation Dates to the extent that a certificate under Section 7(l) is
required to be delivered to the Agent, and $25,000 for each program “refresh” (filing of a new registration statement, prospectus
or prospectus supplement relating to the Placement Shares to be sold pursuant to the Prospectus Supplement and/or an amendment of this
Agreement) executed pursuant to this Agreement, (vi) the qualification or exemption of the Placement Shares under state securities
laws in accordance with the provisions of Section 7(r) hereof, including filing fees, but excluding fees of the Agent’s
counsel, (vii) the printing and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus
and any amendments or supplements thereto in such number as the Agent shall deem reasonably necessary, (viii) the preparation, printing
and delivery to the Agent of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the
Common Stock, (x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including
the fees of the Agent’s counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred
in connection with the listing of the Placement Shares on the Exchange.
9. Conditions
to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of its
obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment, and to
the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued
by any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state Governmental Authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state Governmental Authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any material statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, the Prospectus or documents so that, in the case of the Registration Statement, it will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of the Prospectus, it will not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(c) No
Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement or Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or omits
to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Effect or any development
that would cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities
(other than asset backed securities) by any rating organization or a public announcement by any rating organization that it has under
surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment of the Agent (without relieving the
Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinion and negative assurance letter of Company Counsel and the opinion of Company IP
Counsel required to be delivered pursuant to Section 7(m) on or before the date on which such delivery of such opinions
is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or
before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted
from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent
may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed, conditioned or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission
(whether or not a party), to the extent that any such expense is not paid under (i) or (ii) above,
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent
Information (as defined below).
(b) Agent
Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 10(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Agent
and furnished to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information
that the Agent has furnished to the Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus (or any amendment or supplement thereto) are the statements set forth in the seventh and eighth paragraphs under the caption
“Plan of Distribution” in the Prospectus (the “Agent Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided below and except for
the reasonable and documented costs of investigation subsequently incurred by the indemnified party in connection with the defense. The
indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action
or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement
of the action; in each of which cases the reasonable and documented fees, disbursements and other charges of counsel will be at the expense
of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable and documented fees, disbursements and other charges of
more than one separate firm (plus local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred.
An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent.
No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 10
(whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express
and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such litigation, investigation, proceeding or claim and (2) 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) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable and documented fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such
settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient
from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted) to which the Company and the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits received
by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is
not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agent,
on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agent agree that
it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e), any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim
to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e),
the Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e),
any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates of the Agent and any officers,
directors, partners, employees or agents of the Agent or any of its affiliates, will have the same rights to contribution as that party,
and each director of the Company and each officer of the Company who signed the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for contribution may be made under this Section 10(e),
will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party
or parties from whom contribution may be sought from any other obligation it or they may have under this Section 10(e) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from
whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof,
no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required
pursuant to Section 10(c) hereof.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
12. Termination.
(a) The
Agent may terminate this Agreement, by written notice to the Company, as hereinafter specified at any time (1) if there has been,
since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any
development or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings,
results of operations or prospects of the Company and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) 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 the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the
Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended
or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of
securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium
has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution),
Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of
Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice
as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), or (c) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17 and
Section 18 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, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
| Attention: |
Capital Markets |
| Facsimile: |
(212) 307-3730 |
and:
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
| Attention: |
General Counsel |
| Facsimile: |
(212) 829-4708 |
with a copy to:
Wilmer Cutler Pickering
Hale and Dorr LLP
7 World Trade Center
250 Greenwich Street
New York, New York
10007
| Attention: |
Lisa Firenze |
| Facsimile: |
(212) 230-8888 |
and if to the Company,
shall be delivered to:
Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, Massachusetts 02142
| Attention: |
Bradford D. Dahms |
| Email: |
brad.dahms@theseuspharma.com |
with a copy to:
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
| Attention: |
Robert E. Puopolo |
| Email: |
rpuopolo@goodwinlaw.com |
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with
an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and
(iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and
commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors
and the parties referred to in Section 10 hereof. References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.
15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic
transmission (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the
Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes).
20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
21. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agent,
which consent shall not be unreasonably withheld, conditioned or delayed, and the Agent represents, warrants and agrees that, unless it
obtains the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed, it has not
made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any
such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with
the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
22. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those
of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company.
23. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering
that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,” “Rule 172,”
“Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities
Act Regulations.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agent outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the Agent.
| |
Very truly yours, |
| |
|
| |
THESEUS PHARMACEUTICALS, INC. |
| |
|
| |
|
| |
By: |
/s/ Bradford D. Dahms |
| |
|
Name: |
Bradford D. Dahms |
| |
|
Title: |
Chief Financial Officer |
| |
ACCEPTED as of the date first-above written: |
| |
|
| |
|
| |
CANTOR FITZGERALD & CO. |
| |
|
| |
|
| |
By: |
/s/ Sage Kelly |
| |
|
Name: |
Sage Kelly |
| |
|
Title: |
Global Head of Investment Banking |
SCHEDULE 1
__________________________
Form of Placement Notice
__________________________
| From: |
Theseus Pharmaceuticals, Inc. |
| |
|
| To: |
Cantor Fitzgerald & Co. |
| |
Attention: [•] |
| |
|
| Subject: |
Placement Notice |
| |
|
| Date: |
[•], 202[•] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Theseus Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and Cantor Fitzgerald & Co. (“Agent”), dated November 3, 2022, the Company hereby requests that
the Agent sell up to [•] of the Company’s common stock, par value $0.0001 per share, at a minimum market price of $[•]
per share, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The Company shall pay to the
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount up to 3.0% of the aggregate gross proceeds from
each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company
Bradford Dahms
Timothy Clackson
The Agent
Sameer Vasudev (svasudev@cantor.com)
With copies to:
CFControlledEquityOffering@cantor.com
Form of Representation Date Certificate
Pursuant to Section 7(l)
The undersigned, the duly qualified and elected
[•], of Theseus Pharmaceuticals, Inc., a Delaware corporation (the “Company”), does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(l) of the Sales Agreement, dated November 3, 2022
(the “Sales Agreement”), between the Company and Cantor Fitzgerald & Co., that to the best of the knowledge
of the undersigned:
(i) The representations and warranties of
the Company in Section 6 of the Sales Agreement are true and correct on and as of the date hereof with the same force and
effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; provided, however, that such representations and warranties also shall
be qualified by the disclosure included or incorporated by reference in the Registration Statement and Prospectus; and
(ii) The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
Capitalized terms used herein
without definition shall have the meanings given to such terms in the Sales Agreement.
| |
THESEUS PHARMACEUTICALS, INC. |
| |
|
| |
|
| |
By: |
|
| |
|
| |
Name: |
|
| |
|
| |
Title: |
|
| |
|
| |
|
| Date: [•] |
|
Exhibit 21
Permitted Free Writing Prospectus
None.
Exhibit 4.5
THESEUS PHARMACEUTICALS, INC.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [•], 202[•]
Senior Debt Securities
TABLE
OF CONTENTS1
| |
Page |
| Article 1 DEFINITIONS |
1 |
| |
|
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
| Article 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
|
|
| Section 2.01 |
Designation and Terms of Securities |
4 |
| |
|
|
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
6 |
| |
|
|
| Section 2.03 |
Denominations: Provisions for Payment |
6 |
| |
|
|
| Section 2.04 |
Execution and Authentications |
8 |
| |
|
|
| Section 2.05 |
Registration of Transfer and Exchange |
8 |
| |
|
|
| Section 2.06 |
Temporary Securities |
9 |
| |
|
|
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
9 |
| |
|
|
| Section 2.08 |
Cancellation |
10 |
| |
|
|
| Section 2.09 |
Benefits of Indenture |
10 |
| |
|
|
| Section 2.10 |
Authenticating Agent |
10 |
| |
|
|
| Section 2.11 |
Global Securities |
11 |
| |
|
| Article 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
| |
|
|
| Section 3.01 |
Redemption |
11 |
| |
|
|
| Section 3.02 |
Notice of Redemption |
11 |
| |
|
|
| Section 3.03 |
Payment Upon Redemption |
12 |
| |
|
|
| Section 3.04 |
Sinking Fund |
13 |
| |
|
|
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
13 |
| |
|
|
| Section 3.06 |
Redemption of Securities for Sinking Fund |
13 |
| |
|
| Article 4 COVENANTS |
13 |
| |
|
|
| Section 4.01 |
Payment of Principal, Premium and Interest |
13 |
| |
|
|
| Section 4.02 |
Maintenance of Office or Agency |
14 |
| |
|
|
| Section 4.03 |
Paying Agents |
14 |
| |
|
|
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
15 |
| |
|
|
| Section 4.05 |
Compliance with Consolidation Provisions |
15 |
| |
|
| Article 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
| |
|
|
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
15 |
| [1] |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
| Section 5.02 |
Preservation Of Information; Communications With Securityholders |
15 |
| |
|
|
| Section 5.03 |
Reports by the Company |
15 |
| |
|
|
| Section 5.04 |
Reports by the Trustee |
16 |
| |
|
| Article 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| |
|
|
| Section 6.01 |
Events of Default |
16 |
| |
|
|
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
17 |
| |
|
|
| Section 6.03 |
Application of Moneys Collected |
18 |
| |
|
|
| Section 6.04 |
Limitation on Suits |
19 |
| |
|
|
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
19 |
| |
|
|
| Section 6.06 |
Control by Securityholders |
20 |
| |
|
|
| Section 6.07 |
Undertaking to Pay Costs |
20 |
| |
|
| Article 7 CONCERNING THE TRUSTEE |
20 |
| |
|
|
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
20 |
| |
|
|
| Section 7.02 |
Certain Rights of Trustee |
21 |
| |
|
|
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
23 |
| |
|
|
| Section 7.04 |
May Hold Securities |
23 |
| |
|
|
| Section 7.05 |
Moneys Held in Trust |
23 |
| |
|
|
| Section 7.06 |
Compensation and Reimbursement |
23 |
| |
|
|
| Section 7.07 |
Reliance on Officer’s Certificate |
24 |
| |
|
|
| Section 7.08 |
Disqualification; Conflicting Interests |
24 |
| |
|
|
| Section 7.09 |
Corporate Trustee Required; Eligibility |
24 |
| |
|
|
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
24 |
| |
|
|
| Section 7.11 |
Acceptance of Appointment By Successor |
25 |
| |
|
|
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
26 |
| |
|
|
| Section 7.13 |
Preferential Collection of Claims Against the Company |
26 |
| |
|
|
| Section 7.14 |
Notice of Default |
26 |
| [1] |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
| Article 8 CONCERNING THE SECURITYHOLDERS |
27 |
| |
|
|
| Section 8.01 |
Evidence of Action by Securityholders |
27 |
| |
|
|
| Section 8.02 |
Proof of Execution by Securityholders |
27 |
| |
|
|
| Section 8.03 |
Who May be Deemed Owners |
27 |
| |
|
|
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
28 |
| |
|
|
| Section 8.05 |
Actions Binding on Future Securityholders |
28 |
| |
|
| Article 9 SUPPLEMENTAL INDENTURES |
28 |
| |
|
|
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
28 |
| |
|
|
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
29 |
| |
|
|
| Section 9.03 |
Effect of Supplemental Indentures |
29 |
| |
|
|
| Section 9.04 |
Securities Affected by Supplemental Indentures |
30 |
| |
|
|
| Section 9.05 |
Execution of Supplemental Indentures |
30 |
| |
|
| Article 10 SUCCESSOR ENTITY |
30 |
| |
|
|
| Section 10.01 |
Company May Consolidate, Etc. |
30 |
| |
|
|
| Section 10.02 |
Successor Entity Substituted |
31 |
| |
|
| Article 11 SATISFACTION AND DISCHARGE |
31 |
| |
|
|
| Section 11.01 |
Satisfaction and Discharge of Indenture |
31 |
| |
|
|
| Section 11.02 |
Discharge of Obligations |
32 |
| |
|
|
| Section 11.03 |
Deposited Moneys to be Held in Trust |
32 |
| |
|
|
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
32 |
| |
|
|
| Section 11.05 |
Repayment to Company |
32 |
| |
|
| Article 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
|
|
| Section 12.01 |
No Recourse |
32 |
| |
|
| Article 13 MISCELLANEOUS PROVISIONS |
33 |
| |
|
|
| Section 13.01 |
Effect on Successors and Assigns |
33 |
| [1] |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
| Section 13.02 |
Actions by Successor |
33 |
| |
|
|
| Section 13.03 |
Surrender of Company Powers |
33 |
| |
|
|
| Section 13.04 |
Notices |
33 |
| |
|
|
| Section 13.05 |
Governing Law |
33 |
| |
|
|
| Section 13.06 |
Treatment of Securities as Debt |
33 |
| |
|
|
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
34 |
| |
|
|
| Section 13.08 |
Payments on Business Days |
34 |
| |
|
|
| Section 13.09 |
Conflict with Trust Indenture Act |
34 |
| |
|
|
| Section 13.10 |
Counterparts |
34 |
| |
|
|
| Section 13.11 |
Separability |
34 |
| |
|
|
| Section 13.12 |
Compliance Certificates |
34 |
| [1] |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
INDENTURE
INDENTURE,
dated as of [•], 202 , among THESEUS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by
the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means 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 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.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“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 Theseus Pharmaceuticals, Inc.,
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.
“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 of the Trustee assigned by the Trustee to administer its corporate trust matters with respect to this
Indenture (which, for the avoidance of doubt, includes without limitation any supplemental indenture hereto).
“Securities” has the meaning stated in the
first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“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:
(1) any corporation or company a majority of whose capital stock
with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by
such Person (a “subsidiary”), by one or more subsidiaries of such Person or by such Person and one or more subsidiaries
of such Person;
(2) a partnership in which such Person or a subsidiary of such
Person is, at the date of determination, a general partner of such partnership; or
(3) any partnership, limited liability company or other Person
in which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, directly or indirectly,
at the date of determination, have (x) at least a majority ownership interest or (y) the power to elect or appoint or direct
the election or appointment of the managing partner or member of such Person or, if applicable, a majority of the directors or other governing
body 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.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(1) 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:
(a) the title of the Securities of the series (which shall distinguish
the Securities of that series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities
of that series which 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);
(c) the date or dates on which the principal of the Securities
of the series is payable;
(d) 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;
(e) the rate or rates at which the Securities of the series shall
bear interest or the manner of calculation of such rate or rates, if any;
(f) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to whom interest is payable on any such Interest Payment Dates or the manner
of determination of such record dates;
(g) the right, if any, to extend the interest payment periods
and the duration of such extension;
(h) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may be redeemed, converted or exchanged, in whole or in part;
(i) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments made in cash
in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price
or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(j) the form of the Securities of the series including the form
of the Certificate of Authentication for such series;
(k) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(l) any and all other terms (including terms, to the extent 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) with respect to such series (which terms shall not be inconsistent with the terms of this Indenture, as amended by
any supplemental indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable
in connection with the marketing of Securities of that series;
(m) 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;
(n) whether the Securities will be convertible into or exchangeable
for shares of common stock, preferred stock or other securities of the Company or any other Person and, if so, 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, and the applicable conversion or exchange period;
(o) 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;
(p) any additional or alternative events of default;
(q) additional or alternative covenants (which may include, among
other restrictions, restrictions on the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional
indebtedness; issue additional securities; create liens; pay dividends or make distributions in respect of the capital stock of the Company
or the Company’s Subsidiaries; redeem capital stock; place restrictions on the Company’s Subsidiaries’ ability to pay
dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with stockholders or affiliates; issue or sell stock of the Company’s
Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants, financial
covenants that require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based, asset-based
or other financial ratios) provided for with respect to the Securities of the series;
(r) the currency or currencies, including composite currencies,
in which payment of the principal of (and premium, if any) and interest, if any, on such Securities shall be payable (if other than the
currency of the United States of America), which unless otherwise specified shall be the currency of the United States of America as at
the time of payment is legal tender for payment of public or private debts;
(s) if the principal of (and premium, if any) or interest, if
any, on such Securities is to be payable, at the election of the Company or any Holder thereof, in a coin or currency other than that
in which such Securities are stated to be payable, then the period or periods within which, and the terms and conditions upon which, such
election may be made;
(t) 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;
(u) 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;
(v) additional or alternative provisions, if any, related to defeasance
and discharge of the offered Securities;
(w) the applicability of any guarantees;
(x) any restrictions on transfer, sale or assignment of the Securities
of the series; and
(y) any other terms of the series.
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(1)(j). 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(1)(p),
the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined),
not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is
the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, 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.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, if requested, and (subject to Section 7.01)
shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established 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.
(1) 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.
(2) 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 (the “Security
Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(3) 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, 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(2) and Section 9.04 not involving
any transfer.
(4) The Company shall not be required (i) to issue, exchange
or register the transfer of any Securities during a period beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day
of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption,
other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section 2.05 are, with respect
to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or among depositary participants or beneficial owners of interests
in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered
hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying 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 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.
(1) 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 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.”
(2) 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.
(3) 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(3) 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.
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.
(1) 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, a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or
not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings
for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall 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.
(2) If less than all the Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory to the Trustee) in advance
of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that may provide for the selection
of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing
of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities
of a particular series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption
is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with,
the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions
of this Section.
Section 3.03 Payment Upon Redemption.
(1) 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 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 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).
(2) Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized denominations
in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officer’s Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 3.03.
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.
(1) 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:
(a) 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;
(b) 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;
(c) 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
(d) that it will perform all other duties of paying agent as set
forth in this Indenture.
(2) 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.
(3) 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.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
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.
(1) 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).
(2) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(3) 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.
(1) 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 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 Interactive
Data Electronic Applications (IDEA), 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; provided that an electronic link to such filing, together with an electronic
notice of such filing have been sent to the Trustee. For the avoidance of doubt, a failure by the Company to file annual reports, information
and other reports with the SEC within the time period prescribed thereof by the Commission shall not be deemed a breach of this Section 5.03.
(2) 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).
Section 5.04 Reports by the Trustee.
(1) If required by Section 313(a) of the Trust Indenture
Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register, a brief report dated as of such May 1, which complies with Section 313(a) of
the Trust Indenture Act.
(2) The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.
(3) 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.
(1) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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.
(2) 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.
(3) 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.
(4) 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.
(1) 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.
(2) 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.
(3) 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.
(4) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession
of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of
such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Securities
of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable 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 or any Security to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, any Security or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not
less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein
or thereby; (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.
(1) 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.
(2) 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(3)). 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, 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.
(1) 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 own affairs.
(2) 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:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that may have
occurred:
(A) the duties and obligations of the Trustee shall with respect
to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable 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;
(c) 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; and
(d) 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.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(1) The Trustee may 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;
(2) 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);
(3) The Trustee may consult with counsel and the 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;
(4) 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 reasonable security or indemnity 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 own affairs;
(5) 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;
(6) 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, 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 reasonable indemnity 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;
(7) 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;
(8) 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;
(9) In no event shall the Trustee be responsible or liable for
special, indirect, 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
(10) The Trustee agrees to accept and act upon instructions or
directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods;
provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written instructions,
shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed
instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If
the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee
in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.
The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk
or interception and misuse by third parties.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default 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.
(1) 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.
(2) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
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.
(1) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing, for all services rendered by
it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except
any such expense, disbursement or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from
time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises.
(2) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
(3) 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(1)(d) or (1)(e), 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.
(1) The Trustee or any successor hereafter appointed may at any
time resign with respect to the Securities of one or more series by giving written notice thereof to the Company and by transmitting notice
of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities
of such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series
who has been a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(2) In case at any time any one of the following shall occur:
(a) 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
(b) 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
(c) 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.
(3) 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.
(4) 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.
(5) 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.
(1) 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 its charges, 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.
(2) 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.
(3) 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.
(4) 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.
(5) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice within
ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at
the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, including the administration of the trust created
by this Indenture, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Event of Default occurs and is continuing and if such
Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the earlier of
90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee or written notice of it is received by
the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or 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 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:
(1) 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.
(2) 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 Company 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:
(1) to cure any ambiguity, defect, or inconsistency herein or
in the Securities of any series;
(2) to comply with Article Ten;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) 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;
(5) 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;
(6) to make any change that does not adversely affect the rights
of any Securityholder in any material respect;
(7) 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;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee; or
(9) to comply with any requirements of the Commission or any successor
in connection with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, shall receive an Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions
precedent to the execution of the supplemental indenture have been complied with; provided, however, that such Officer’s Certificate
or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of
a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall direct the Trustee to) transmit by mail,
first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to mail, or
cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
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 corporation (whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, (a) 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), sale, conveyance, transfer or other
disposition, 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 and (b) in the event that the Securities of any series then Outstanding are
convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such
supplemental indenture, make provision so that the Securityholders of Securities of that series shall thereafter be entitled to
receive upon conversion or exchange of such Securities the number of securities or property to which a holder of the number of
shares of common stock or other securities of the Company deliverable upon conversion or exchange of those Securities would have
been entitled had such conversion or exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer
or other disposition.
Section 10.02 Successor Entity Substituted.
(1) 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.
(2) 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.
(3) 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 and 7.10, 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 and 11.05 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 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.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
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.
(1) 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.
(2) 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 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 Sections 310 to 317, inclusive, 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.
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.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| |
THESEUS PHARMACEUTICALS, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
[TRUSTEE], as Trustee |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
CROSS-REFERENCE
TABLE2
| 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(1) |
| 312(b) |
5.02(3) |
| 312(c) |
5.02(3) |
| 313(a) |
5.04(1) |
| 313(b) |
5.04(2) |
| 313(c) |
5.04(1) |
| |
5.04(2) |
| 313(d) |
5.04(3) |
| 314(a) |
5.03 |
| |
13.12 |
| 314(b) |
Inapplicable |
| 314(c) |
13.07(1) |
| 314(d) |
Inapplicable |
| 314(e) |
13.07(2) |
| 314(f) |
Inapplicable |
| 315(a) |
7.01(1) |
| |
7.01(2) |
| 315(b) |
7.14 |
| 315(c) |
7.01 |
| 315(d) |
7.01(2) |
| 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 |
| [2] |
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 4.6
THESEUS PHARMACEUTICALS, INC.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [•], 202[•]
Subordinated Debt Securities
TABLE
OF CONTENTS1
| Article 1 DEFINITIONS |
1 |
| |
|
|
| Section 1.01 |
|
Definitions of Terms |
1 |
| |
|
| Article 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
|
|
| Section 2.01 |
|
Designation and Terms of Securities |
4 |
| Section 2.02 |
|
Form of Securities and Trustee’s Certificate |
6 |
| Section 2.03 |
|
Denominations: Provisions for Payment |
7 |
| Section 2.04 |
|
Execution and Authentications |
8 |
| Section 2.05 |
|
Registration of Transfer and Exchange |
8 |
| Section 2.06 |
|
Temporary Securities |
9 |
| Section 2.07 |
|
Mutilated, Destroyed, Lost or Stolen Securities |
9 |
| Section 2.08 |
|
Cancellation |
10 |
| Section 2.09 |
|
Benefits of Indenture |
10 |
| Section 2.10 |
|
Authenticating Agent |
10 |
| Section 2.11 |
|
Global Securities |
11 |
| |
|
| Article 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
12 |
| |
|
|
| Section 3.01 |
|
Redemption |
12 |
| Section 3.02 |
|
Notice of Redemption |
12 |
| Section 3.03 |
|
Payment Upon Redemption |
13 |
| Section 3.04 |
|
Sinking Fund |
13 |
| Section 3.05 |
|
Satisfaction of Sinking Fund Payments with Securities |
13 |
| Section 3.06 |
|
Redemption of Securities for Sinking Fund |
13 |
| |
|
| Article 4 COVENANTS |
14 |
| |
|
|
| Section 4.01 |
|
Payment of Principal, Premium and Interest |
14 |
| Section 4.02 |
|
Maintenance of Office or Agency |
14 |
| Section 4.03 |
|
Paying Agents |
14 |
[1]
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions.
| Section 4.04 |
|
Appointment to Fill Vacancy in Office of Trustee |
15 |
| Section 4.05 |
|
Compliance with Consolidation Provisions |
15 |
| |
|
| Article 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
| |
|
|
| Section 5.01 |
|
Company to Furnish Trustee Names and Addresses of Securityholders |
15 |
| Section 5.02 |
|
Preservation Of Information; Communications With Securityholders |
15 |
| Section 5.03 |
|
Reports by the Company |
16 |
| Section 5.04 |
|
Reports by the Trustee |
16 |
| |
|
| Article 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| |
|
|
| Section 6.01 |
|
Events of Default |
16 |
| Section 6.02 |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
18 |
| Section 6.03 |
|
Application of Moneys Collected |
19 |
| Section 6.04 |
|
Limitation on Suits |
19 |
| Section 6.05 |
|
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
20 |
| Section 6.06 |
|
Control by Securityholders |
20 |
| Section 6.07 |
|
Undertaking to Pay Costs |
20 |
| |
|
| Article 7 CONCERNING THE TRUSTEE |
21 |
| |
|
|
| Section 7.01 |
|
Certain Duties and Responsibilities of Trustee |
21 |
| Section 7.02 |
|
Certain Rights of Trustee |
21 |
| Section 7.03 |
|
Trustee Not Responsible for Recitals or Issuance or Securities |
23 |
| Section 7.04 |
|
May Hold Securities |
23 |
| Section 7.05 |
|
Moneys Held in Trust |
23 |
| Section 7.06 |
|
Compensation and Reimbursement |
23 |
| Section 7.07 |
|
Reliance on Officer’s Certificate |
24 |
| Section 7.08 |
|
Disqualification; Conflicting Interests |
24 |
| Section 7.09 |
|
Corporate Trustee Required; Eligibility |
24 |
| Section 7.10 |
|
Resignation and Removal; Appointment of Successor |
24 |
[1]
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions.
| Section 7.11 |
|
Acceptance of Appointment By Successor |
25 |
| Section 7.12 |
|
Merger, Conversion, Consolidation or Succession to Business |
26 |
| Section 7.13 |
|
Preferential Collection of Claims Against the Company |
26 |
| Section 7.14 |
|
Notice of Default |
27 |
| |
|
| Article 8 CONCERNING THE SECURITYHOLDERS |
27 |
| |
|
|
| Section 8.01 |
|
Evidence of Action by Securityholders |
27 |
| Section 8.02 |
|
Proof of Execution by Securityholders |
27 |
| Section 8.03 |
|
Who May be Deemed Owners |
27 |
| Section 8.04 |
|
Certain Securities Owned by Company Disregarded |
28 |
| Section 8.05 |
|
Actions Binding on Future Securityholders |
28 |
| |
|
| Article 9 SUPPLEMENTAL INDENTURES |
28 |
| |
|
|
| Section 9.01 |
|
Supplemental Indentures Without the Consent of Securityholders |
28 |
| Section 9.02 |
|
Supplemental Indentures With Consent of Securityholders |
29 |
| Section 9.03 |
|
Effect of Supplemental Indentures |
29 |
| Section 9.04 |
|
Securities Affected by Supplemental Indentures |
30 |
| Section 9.05 |
|
Execution of Supplemental Indentures |
30 |
| |
|
| Article 10 SUCCESSOR ENTITY |
30 |
| |
|
|
| Section 10.01 |
|
Company May Consolidate, Etc. |
30 |
| Section 10.02 |
|
Successor Entity Substituted |
31 |
| |
|
| Article 11 SATISFACTION AND DISCHARGE |
31 |
| |
|
|
| Section 11.01 |
|
Satisfaction and Discharge of Indenture |
31 |
| Section 11.02 |
|
Discharge of Obligations |
32 |
| Section 11.03 |
|
Deposited Moneys to be Held in Trust |
32 |
[1]
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions.
| Section 11.04 |
|
Payment of Moneys Held by Paying Agents |
32 |
| Section 11.05 |
|
Repayment to Company |
32 |
| |
|
| Article 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
|
|
| Section 12.01 |
|
No Recourse |
32 |
| |
|
| Article 13 MISCELLANEOUS PROVISIONS |
33 |
| |
|
|
| Section 13.01 |
|
Effect on Successors and Assigns |
33 |
| Section 13.02 |
|
Actions by Successor |
33 |
| Section 13.03 |
|
Surrender of Company Powers |
33 |
| Section 13.04 |
|
Notices |
33 |
| Section 13.05 |
|
Governing Law |
33 |
| Section 13.06 |
|
Treatment of Securities as Debt |
33 |
| Section 13.07 |
|
Certificates and Opinions as to Conditions Precedent |
33 |
| Section 13.08 |
|
Payments on Business Days |
34 |
| Section 13.09 |
|
Conflict with Trust Indenture Act |
34 |
| Section 13.10 |
|
Counterparts |
34 |
| Section 13.11 |
|
Separability |
34 |
| Section 13.12 |
|
Compliance Certificates |
34 |
| |
|
| Article 14 SUBORDINATION OF SECURITIES |
35 |
| |
|
|
| Section 14.01 |
|
Subordination Terms |
35 |
[1]
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions.
INDENTURE
INDENTURE,
dated as of [•], 202 , among THESEUS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of subordinated 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 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 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.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“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 Theseus Pharmaceuticals, Inc.,
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.
“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 of the Trustee assigned by the Trustee to administer its corporate trust matters with respect to this
Indenture (which, for the avoidance of doubt, includes without limitation any supplemental indenture hereto).
“Securities” has the meaning stated in the
first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“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:
(1) any corporation or company a majority of whose capital stock
with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by
such Person (a “subsidiary”), by one or more subsidiaries of such Person or by such Person and one or more subsidiaries
of such Person;
(2) a partnership in which such Person or a subsidiary of such
Person is, at the date of determination, a general partner of such partnership; or
(3) any partnership, limited liability company or other Person
in which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, directly or indirectly,
at the date of determination, have (x) at least a majority ownership interest or (y) the power to elect or appoint or direct
the election or appointment of the managing partner or member of such Person or, if applicable, a majority of the directors or other governing
body 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.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(1) 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:
(a) the title of the Securities of the series (which shall distinguish
the Securities of that series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities
of that series which 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);
(c) the date or dates on which the principal of the Securities
of the series is payable;
(d) 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;
(e) the rate or rates at which the Securities of the series shall
bear interest or the manner of calculation of such rate or rates, if any;
(f) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to whom interest is payable on any such Interest Payment Dates or the manner
of determination of such record dates;
(g) the right, if any, to extend the interest payment periods
and the duration of such extension;
(h) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may be redeemed, converted or exchanged, in whole or in part;
(i) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments made in cash
in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price
or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(j) the form of the Securities of the series including the form
of the Certificate of Authentication for such series;
(k) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(l) any and all other terms (including terms, to the extent 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) with respect to such series (which terms shall not be inconsistent with the terms of this Indenture, as amended by
any supplemental indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable
in connection with the marketing of Securities of that series;
(m) 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;
(n) whether the Securities will be convertible into or exchangeable
for shares of common stock, preferred stock or other securities of the Company or any other Person and, if so, 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, and the applicable conversion or exchange period;
(o) 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;
(p) any additional or alternative events of default;
(q) additional or alternative covenants (which may include, among
other restrictions, restrictions on the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional
indebtedness; issue additional securities; create liens; pay dividends or make distributions in respect of the capital stock of the Company
or the Company’s Subsidiaries; redeem capital stock; place restrictions on the Company’s Subsidiaries’ ability to pay
dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with stockholders or affiliates; issue or sell stock of the Company’s
Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants, financial
covenants that require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based, asset-based
or other financial ratios) provided for with respect to the Securities of the series;
(r) the currency or currencies, including composite currencies,
in which payment of the principal of (and premium, if any) and interest, if any, on such Securities shall be payable (if other than the
currency of the United States of America), which unless otherwise specified shall be the currency of the United States of America as at
the time of payment is legal tender for payment of public or private debts;
(s) if the principal of (and premium, if any) or interest, if
any, on such Securities is to be payable, at the election of the Company or any Holder thereof, in a coin or currency other than that
in which such Securities are stated to be payable, then the period or periods within which, and the terms and conditions upon which, such
election may be made;
(t) 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;
(u) 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;
(v) additional or alternative provisions, if any, related to defeasance
and discharge of the offered Securities;
(w) the applicability of any guarantees;
(x) any restrictions on transfer, sale or assignment of the Securities
of the series;
(y) any other terms of the series; and
(z) the subordination terms of the Securities of the series.
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(1)(j). 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(1)(p),
the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined),
not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is
the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, 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.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, if requested, and (subject to Section 7.01)
shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established 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.
(1) 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.
(2) 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 (the “Security
Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(3) 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, 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(2) and Section 9.04 not involving
any transfer.
(4) The Company shall not be required (i) to issue, exchange
or register the transfer of any Securities during a period beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day
of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption,
other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section 2.05 are, with respect
to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or among depositary participants or beneficial owners of interests
in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered
hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying 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 (and, with respect to
the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any series are subordinated)
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
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities
of any series are subordinated).
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 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.
(1) 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 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.”
(2) 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.
(3) 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(3) 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.
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.
(1) 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, a notice of such redemption not less than 30
days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses as they shall
appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice.
In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or in part,
or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series
or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with any such restriction.
Each such notice of redemption shall 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.
(2) If less than all the Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory to the Trustee) in advance
of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that may provide for the selection
of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing
of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities
of a particular series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption
is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with,
the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions
of this Section.
Section 3.03 Payment Upon Redemption.
(1) 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 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 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).
(2) Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized denominations
in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officer’s Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 3.03.
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.
(1) 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:
(a) 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;
(b) 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;
(c) 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
(d) that it will perform all other duties of paying agent as set
forth in this Indenture.
(2) 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.
(3) 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.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
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.
(1) 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)
(2) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(3) 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.
(1) 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 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 Interactive
Data Electronic Applications (IDEA), 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; provided that an electronic link to such filing, together with an electronic
notice of such filing have been sent to the Trustee. For the avoidance of doubt, a failure by the Company to file annual reports, information
and other reports with the SEC within the time period prescribed thereof by the Commission shall not be deemed a breach of this Section 5.03.
(2) 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).
Section 5.04 Reports by the Trustee.
(1) If required by Section 313(a) of the Trust Indenture
Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register, a brief report dated as of such May 1, which complies with Section 313(a) of
the Trust Indenture Act.
(2) The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.
(3) 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.
(1) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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.
(2) 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.
(3) 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.
(4) 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.
(1) 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.
(2) 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.
(3) 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.
(4) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession
of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of
such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Securities
of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all indebtedness of the Company to which such
series of Securities is subordinated to the extent required by Section 7.06 and any subordination terms of the series specified as
contemplated by Article Fourteen;
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 or any Security to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, any Security or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not
less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein
or thereby; (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.
(1) 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.
(2) 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(3)). 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, 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.
(1) 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 own affairs.
(2) 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:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that may have
occurred:
(A) the duties and obligations of the Trustee shall with respect
to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable 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;
(c) 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; and
(d) 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.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(1) The Trustee may 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;
(2) 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);
(3) The Trustee may consult with counsel and the 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;
(4) 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 reasonable security or indemnity 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 own affairs;
(5) 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;
(6) 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, 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 reasonable indemnity 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;
(7) 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;
(8) 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;
(9) In no event shall the Trustee be responsible or liable for
special, indirect, 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
(10) The Trustee agrees to accept and act upon instructions or
directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods;
provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written instructions,
shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed
instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If
the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee
in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.
The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk
or interception and misuse by third parties.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default 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.
(1) 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.
(2) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(3) 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.
(1) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing, for all services rendered by
it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except
any such expense, disbursement or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from
time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises.
(2) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute
indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Securities.
(3) 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(1)(d) or (1)(e), 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.
(1) The Trustee or any successor hereafter appointed may at any
time resign with respect to the Securities of one or more series by giving written notice thereof to the Company and by transmitting notice
of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities
of such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series
who has been a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(2) In case at any time any one of the following shall occur:
(a) 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
(b) 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
(c) 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.
(3) 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.
(4) 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.
(5) 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.
(1) 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 its charges, 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.
(2) 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.
(3) 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.
(4) 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.
(5) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice within
ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at
the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, including the administration of the trust created
by this Indenture, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Event of Default occurs and is continuing and if such Event
of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the earlier of 90 days after it
occurs and 30 days after it is known to a Responsible Officer of the Trustee or written notice of it is received by the Trustee, unless
such Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or 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 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:
(1) 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.
(2) 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 Company 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:
(1) to cure any ambiguity, defect, or inconsistency herein or
in the Securities of any series;
(2) to comply with Article Ten;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) 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;
(5) 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;
(6) to make any change that does not adversely affect the rights
of any Securityholder in any material respect;
(7) 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;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee; or
(9) to comply with any requirements of the Commission or any successor
in connection with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, shall receive an Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions
precedent to the execution of the supplemental indenture have been complied with; provided, however, that such Officer’s Certificate
or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of
a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall direct the Trustee to) transmit by mail,
first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to mail, or
cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
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 corporation (whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, (a) 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), sale, conveyance, transfer or other
disposition, 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 and (b) in the event that the Securities of any series then Outstanding are
convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such supplemental indenture, make provision so that the Securityholders
of Securities of that series shall thereafter be entitled to receive upon conversion or exchange of such Securities the number of securities
or property to which a holder of the number of shares of common stock or other securities of the Company deliverable upon conversion or
exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.
Section 10.02 Successor Entity Substituted.
(1) 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.
(2) 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.
(3) 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 and 7.10, 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 and 11.05 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 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.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
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.
(1) 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.
(2) 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 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 Sections 310 to 317, inclusive, 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.
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.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal of, premium, if any, and
interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in an indenture supplemental hereto
relating to such series.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| |
THESEUS PHARMACEUTICALS, INC. |
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By: |
|
| |
Name: |
|
| |
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
TABLE2
| 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(1) |
| 312(b) |
|
5.02(3) |
| 312(c) |
|
5.02(3) |
| 313(a) |
|
5.04(1) |
| 313(b) |
|
5.04(2) |
| 313(c) |
|
5.04(1) |
| |
|
5.04(2) |
| 313(d) |
|
5.04(3) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(1) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(2) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(1) |
| |
|
7.01(2) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(2) |
| 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 |
| [2] |
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 5.1
 | Goodwin Procter llp
100 Northern
Avenue
Boston, MA 02210
goodwinlaw.com
+1 617 570
1000
|
November 3,
2022
Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, MA 02142
Re: Securities
Being Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection with
your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration
Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating
to the offering by Theseus Pharmaceuticals, Inc., a Delaware corporation (the “Company”), of up to $300,000,000
of any combination of (i) common stock, par value $0.0001 per share (the “Common Stock”), of the Company,
(ii) preferred stock, par value $0.0001 per share, of the Company (the “Preferred Stock”), (iii) debt
securities of the Company (“Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock,
Debt Securities or Units (as defined below ) (“Warrants”), and (v) units comprised of Common Stock, Preferred
Stock, Debt Securities, Warrants and other securities in any combination (“Units”). The Common Stock, Preferred
Stock, Debt Securities, Warrants and Units are sometimes referred to collectively herein as the “Securities.”
Securities may be issued in an unspecified number (with respect to Common Stock, Preferred Stock, Warrants and Units) or in an unspecified
principal amount (with respect to Debt Securities). The Registration Statement provides that the Securities may be offered separately
or together, in separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus
Supplement”) to the prospectus contained in the Registration Statement.
We have reviewed such documents and made such examination
of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates
of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinions set forth below are limited to the
Delaware General Corporation Law and the law of New York.
For purposes of the opinions set forth below, without
limiting any other exceptions or qualifications set forth herein, we have assumed that (i) each of the Debt Securities, Warrants
and Units, and the indentures, warrant agreements, unit agreements and other agreements governing Securities offered pursuant to the Registration
Statement will be governed by the internal law of New York and (ii) after the issuance of any Securities offered pursuant to the
Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable, together with the total number
of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable
or convertible security (including without limitation any Unit), as the case may be, then outstanding, will not exceed the total number
of authorized shares of Common Stock or Preferred Stock, as applicable, available for issuance under the Company’s certificate of
incorporation as then in effect (the “Charter”).
Theseus Pharmaceuticals, Inc.
November 3, 2022
Page 2
For purposes of the opinions set forth below, we
refer to the following as the “Future Authorization and Issuance” of Securities:
| · | with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities
(the “Authorization”) and (b) the issuance of such Securities in accordance with the Authorization therefor
upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock, is not less than
the par value of such shares) to be paid therefor in accordance with the Authorization; |
| · | with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity with
the Charter and applicable law and (b) the execution, acknowledgement and filing with the Delaware Secretary of State, and the effectiveness
of, a certificate of designations to the Charter setting forth the terms of such Preferred Stock in accordance with the Charter and applicable
law; |
| · | with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating
to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the
Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication
and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and |
| · | with respect to Warrants or Units, (a) the authorization, execution and delivery by the Company and the other parties thereto
of any agreement under which such Securities are to be issued, and (b) the establishment of the terms of such Securities and the
issuance of such Securities in conformity with those terms, the terms of any applicable agreement and applicable law. |
Theseus Pharmaceuticals, Inc.
November 3, 2022
Page 3
Based upon the foregoing, and subject to the additional
qualifications set forth below, we are of the opinion that:
1. Upon
the Future Authorization and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and nonassessable.
2. Upon
the Future Authorization and Issuance of shares of Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid
and nonassessable.
3. Upon
the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company.
4. Upon
the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company.
5. Upon
the Future Authorization and Issuance of Units, such Units will be valid and binding obligations of the Company.
The opinions expressed above are subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies
of creditors and to general principles of equity.
This opinion letter and the opinions it contains
shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion
as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the
Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Goodwin Procter LLP |
| |
|
| |
GOODWIN PROCTER LLP |
Exhibit
5.2
 | Goodwin Procter llp
100 Northern
Avenue
Boston, MA 02210
goodwinlaw.com
+1 617 570
1000
|
November 3,
2022
Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, MA 02142
Re: Securities
Registered under Registration Statement on Form S-3
We
have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (as amended or supplemented,
the “Registration Statement”) filed on November 3, 2022 with the Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”),
relating to the registration of the offering by Theseus Pharmaceuticals, Inc., a Delaware corporation (the “Company”)
of up to $300,000,000 of any combination of securities of the types specified therein. Reference is made to our opinion letter dated
November 3, 2022 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter
in connection with the sale agreement prospectus (the “Prospectus”) contained in the Registration Statement.
The Prospectus relates to the offering by the Company of up to $100,000,000 in shares (the “Shares”) of the
Company’s common stock, par value $0.0001 per share (“Common Stock”) covered by the Registration Statement.
The Shares are being offered and sold by the sales agent named in, and pursuant to, the Controlled Equity OfferingSM Sales
Agreement, dated November 3, 2022, among the Company and such sales agent.
We
have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion set forth below.
We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion
set forth below, on certificates of officers of the Company.
For purposes of the opinion set forth below, we
have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized by the Company’s
board of directors (or a duly authorized committee of the board of directors) prior to the date hereof (the “Minimum Price”)
and that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less
than the number of then unissued Shares that may be issued for the Minimum Price.
For purposes of the opinion set forth below, we
refer to the following as “Future Approval and Issuance”: (a) the approval by the Company’s board
of directors (or a duly authorized committee of the board of directors) of the issuance of the Shares (the “Approval”)
and (b) the issuance of the Shares in accordance with the Approval and the receipt by the Company of the consideration (which shall
not be less than the par value of such Shares) to be paid in accordance with the Approval.
Theseus Pharmaceuticals, Inc.
November 3, 2022
Page 2
The opinion set forth below is limited to the Delaware
General Corporation Law.
Based
on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon Future Approval and Issuance, will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
letter as Exhibit 5.2 to the Registration Statement and its incorporation by reference and the reference to our firm under the caption
“Legal Matters” in the Registration Statement. In giving our consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Goodwin Procter LLP |
| |
|
| |
GOODWIN PROCTER LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under the caption “Experts”
in the Registration Statement (Form S-3) and related Prospectus of Theseus Pharmaceuticals, Inc. for the registration of up
to $300,000,000 of its debt securities, common stock and preferred stock, units and/or warrants and to the incorporation by reference
therein of our report dated March 10, 2022, with respect to the consolidated financial statements of Theseus Pharmaceuticals, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
November 3, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Theseus Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering
Price Per
Unit (2) |
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 |
| |
Primary
Offering of Securities: |
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
Equity |
Common Stock,
par value $0.0001
per share (3) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| Fees
to Be Paid |
Equity |
Preferred
Stock (4) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| Fees
to Be Paid |
Debt |
Debt
Securities (5) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| Fees
to Be Paid |
Equity |
Warrants
(6) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| Fees
to Be Paid |
Equity |
Units
(7) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| Fees
to Be Paid |
Unallocated
(Universal)
Shelf |
(1) |
457(o) |
$300,000,000 |
— |
$300,000,000 |
0.00011020 |
$33,060 |
|
|
|
|
| Fees
to Be Paid |
Total
Registration Fee: |
$300,000,000 |
N/A |
$300,000,000 |
— |
$33,060 |
|
|
|
|
| Carry
Forward Securities |
Carry
Forward
Securities |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Total
Offering Amounts |
|
$300,000,000 |
|
$33,060 |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
|
— |
|
|
|
| |
Total
Fee Offsets |
|
|
|
|
— |
|
|
|
| |
Net
Fee Due |
|
|
|
$33,060 |
|
|
|
|
| (1) |
The amount to be registered consists of up to $300,000,000 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 debt securities, common stock, preferred stock or units as may be issued upon exercise of warrants registered hereby, as the case may be, including under any applicable antidilution provisions. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. |
| (2) |
The proposed maximum offering price per security 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 of 1933, as amended. |
| (3) |
Including such indeterminate amount of common stock as may be issued from time to time at indeterminate prices or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
| (4) |
Including such indeterminate amount of preferred stock as may be issued from time to time at indeterminate prices or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
| (5) |
Including such indeterminate principal amount of debt securities as may be issued from time to time at indeterminate prices or upon exercise of warrants registered hereby, as the case may be. |
| (6) |
Warrants may be sold separately or together with any of the securities registered hereby and may be exercisable for shares of common stock, preferred stock, debt securities, or units registered hereby. Because the warrants will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
| (7) |
Each unit will be issued under a unit agreement and will represent an interest in two or more securities registered pursuant to this registration statement, which may or may not be separable from one another. Because the units will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
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